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Sahib Dayal v. Joti Pershad
Division Bench Opinion — S. B. Capoor and H. R. Khanna, JJ. (15th September, 1966)
Factual and Procedural Background
The plaintiff-respondent, Joti Pershad, brought a suit for ejectment from a shop situated in Najafgarh and for recovery of Rs. 456 against the defendant, Sahib Dayal. The trial court dismissed the suit. On appeal, the learned Additional District Judge, Delhi, passed a decree in favour of the plaintiff for ejectment from the shop and/or recovery of Rs. 245. On second appeal before Grover, J., it was found that the provisions of the Transfer of Property Act did not apply to the area where the shop is situated. The central procedural question then became whether the plaintiff was required to serve a notice terminating the tenancy in accordance with the rule in Section 106 of the Transfer of Property Act.
The plaintiff issued Exhibit P-4 dated 18th November 1957 requiring the defendant to vacate the premises by 5th January 1958, treating the tenancy month as running from the 6th to the 5th of the succeeding month. The defendant contended that the tenancy month ran from the 8th to the 7th. The lower Appellate Court found the tenancy month to be from the 8th to the 7th. That factual finding was challenged by the plaintiff before the Single Judge and before the Division Bench. The Single Judge, assuming the finding as not open to challenge, referred the legal question—whether a notice of termination must expire on the last day of the tenancy period—to a Division Bench because of conflicting authorities.
Legal Issues Presented
- Whether, in an area to which the Transfer of Property Act is not applicable, a notice terminating a month-to-month tenancy is required to expire with the end of the month of the tenancy as prescribed by Section 106 of the Transfer of Property Act.
- Whether the rule in Section 106 (that notice must expire with the end of a month of tenancy) is a principle founded on justice, equity and good conscience, or whether it is a technical rule that need not be strictly enforced where the Transfer of Property Act does not apply.
Arguments of the Parties
Plaintiff-Landlord (Joti Pershad)
- The plaintiff issued Exhibit P-4 (notice dated 18th November 1957) requiring vacation by 5th January 1958, treating the tenancy month as 6th to 5th. The plaintiff contested the Appellate Court's finding that the tenancy month ran from the 8th to the 7th.
- Implicit in the plaintiff's position was the contention that the notice served (48 days) was sufficient and should be held valid.
Defendant-Tenant (Sahib Dayal)
- The defendant contended that the tenancy month ran from the 8th to the 7th of the succeeding month, and that the notice served did not expire with the end of the tenancy month as required by Section 106.
- Learned counsel for the tenant argued that the notice was not valid because it was not a fifteen-day notice expiring with the end of the month of the tenancy (i.e., failed the technical requirement of Section 106).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in this Opinion |
|---|---|---|
| Chuni Lal v. Chuni Lal | Held that in the absence of a contract to the contrary, Section 106 of the Transfer of Property Act applies (here discussed in context of Punjab); Section 106 is a codification of the general law on the subject. | Cited to show that some courts have applied Section 106 as governing notice requirements where local law/usage did not provide otherwise. |
| Rure Khan v. Ghutam Muhammad | Case involving an 11‑month tenancy where a short notice was given; a contention that notice must terminate on the last day of a month was raised and rejected in related authorities. | Referred to among authorities demonstrating conflicting approaches on whether strict expiry with the tenancy month is necessary. |
| Ram Nath v. Badri Nath | Held that a notice which did not expire with the end of a month of the tenancy was not invalid (Coldstream, J.), and an appeal was dismissed. | Used as an example of a decision holding that strict compliance with expiry-at-month-end was not essential to validity of notice. |
| Rattan Sen Sachar v. Shrimati Krishan Kaur | Held notices to be illegal where they did not give fifteen days terminating with the date of the tenancy (monthly tenancy context). | Presented as contrary authority indicating that under some decisions non‑conforming notices were held invalid. |
| Mst Sunder Bai v. Chaudhrani Muntaz Jan | Argument that a notice served after the tenancy termination date was bad was rejected; observed that Transfer of Property Act did not apply and technical defects had less force where the Act was not in force. | Supports the view that technical defects in notice may be treated leniently in areas where the Transfer of Property Act does not apply. |
| Nanakram Das and Others v. Nagarmal | Narasimham, J. observed that although the Transfer of Property Act was not in force before merger, its equitable principles could be applied; Section 106 need not be literally applied and a reasonable notice would suffice. | Adopted by the Division Bench as the correct approach for the present case: Section 106's requirement need not be literal and a reasonable notice is sufficient. |
| Namdeo Lokman Lodhi v. Narmadabai | Discussed Section 111(g) and observed that to the extent Sections 105–116 embody principles of justice, equity and good conscience, they may apply to cases not governed by the Act; but no specific view stated on Section 106. | Quoted to support the proposition that equitable principles in the Transfer of Property Act can inform cases outside the Act's territorial application, with the caveat that not all provisions must be applied literally. |
| Brahmagga v. B. Sundramma (Full Bench, Madras) | Earlier Full Bench observations that Sections 105–116 were founded on principles of reason and equity (criticised as not precise by later authority). | Noted in the opinion as part of the jurisprudential background on whether sections founded on equity apply outside the Act; the Division Bench treats the question with reference to other authorities. |
Court's Reasoning and Analysis
The court began by noting the territorial issue: the Transfer of Property Act did not apply to the locality where the shop was situated. The legal question was whether the Section 106 rule—that a notice must expire with the end of a month of the tenancy—must be applied in areas where the Act is not in force.
The court analyzed prior authorities showing conflicting approaches: some decisions treated the Section 106 requirement as essential in construing notice validity, while other decisions rejected the contention that notices had to terminate strictly at the end of a tenancy month. The court extracted the following analytical steps:
- Distinguish between provisions of the Transfer of Property Act that are grounded in "justice, equity and good conscience" and those that are technical in nature.
- Accept that the equitable principles underlying many provisions of the Act may guide resolution of disputes concerning properties outside the Act's territorial reach, but that technical statutory rules should not be mechanically enforced where the Act does not apply.
- Evaluate whether the particular rule in Section 106 (notice must expire with the end of the month of the tenancy) is equitable or technical. The court concluded that this is a technical rule rather than one grounded in justice, equity or good conscience.
- Apply the technical-versus-equitable distinction to the facts: the plaintiff had given the tenant 48 days' notice (more than the minimum 15 days prescribed for a month-to-month tenancy under Section 106). The tenant's objection was that the notice did not expire with the tenancy month. The court reasoned that invalidating a notice that affords the tenant more time would be unduly technical and inequitable.
- Rely on the approach in Nanakram Das (Narasimham, J.), namely that the literal requirement of Section 106 need not be applied strictly in such circumstances and that a reasonable notice suffices where the Transfer of Property Act does not govern the area.
On this basis the Division Bench held the notice in the present case was not invalid on the ground that it did not expire with the end of the month of the tenancy, and therefore no finding was necessary on whether the tenancy month was 6th–5th or 8th–7th.
Holding and Implications
Holding: The Division Bench held that the rule in Section 106 requiring a notice to expire with the end of the month of the tenancy is a technical rule and need not be strictly enforced in territories to which the Transfer of Property Act does not apply; a reasonable notice is sufficient. On the facts, the notice served by the plaintiff (48 days) was not invalid for failing to expire with the tenancy month. The case was remanded to the learned Single Judge for disposal and costs were ordered to abide the event.
Implications:
- Direct effect on the parties: the notice served by the plaintiff was held valid; the matter is returned to the Single Judge for further disposal in accordance with this ruling.
- Broader implications: the court treated the Section 106 expiry‑with‑month rule as technical rather than a principle of equity. The Division Bench expressly followed the approach of Narasimham, J. in Nanakram Das that the section need not be applied literally where the Transfer of Property Act is not in force and that reasonable notice suffices. The opinion does not purport to lay down a novel, expansive precedent beyond this reasoning; it resolves the narrow question presented and remits the case for final disposal.
S. B. Capoor and H. R. Khanna, JJ.-
(15th September, 1966)--This case has been referred to the Division Bench in pursuance of the order of Grover, J. It arises out of a suit for ejectment from the shop in dispute situated in Najafgarh and for recovery of Rs. 456 brought by Joti Pershad plaintiff respondent against Sahib Dayal defendant. The trial Court dismissed the suit but on appeal the learned Additional District Judge, Delhi, passed a decree for ejectment from the shop in dispute and /or recovery of Rs. 245 in favour of the plaintiff against the defendant. In second appeal when the matter came up before Grover, J, he found that the provisions of the Transfer of Property Act did not apply to the area wherein the shop in dispute is situate. Question then arose for determination as to whether it was necessary for the plaintiff to have served a notice for terminating the tenancy in accordance with the Rule embodied in Section 106 of the Transfer of Property Act. The plaintiff was found to have issued notice Exhibit P-4 to the defendant on 18th November, 1957 requiring the latter to vacate the premises by 5th January, 1958 treating the tenancy month to be from 6th to 5th of the succeeding month. The position taken on behalf of the defendant was that the tenancy month was from the 8th to 7th day of the succeeding month. The lower Appellate Court found that the tenancy month commenced from 8th and ended on the 7th of the next month. This finding was assailed by the learned Counsel for the plaintiff-landlord before the learned Single Judge and has also been assailed before us. The learned Single Judge on the assumption that that finding is not open to challenge dealt with the matter as to whether a notice for ejectment in order to be valid should expire on the last day of the period of tenancy. He found that there was a conflict on the point and consequently referred the matter to Division Bench.
2. Relevant part of Section 106 of the Transfer of Property Act reads as under:
"In the absence of a contract on local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy."
The question as to whether the provision of the above section requiring the notice for termination of the lease to expire with the end of the month of the tenancy, applies to areas not governed by the Transfer of Property Act, has been the subject-matter of a number of cases. In Chuni Lal v. Chuni Lal1, the tenancy commenced on 1st November, 1920 and according to its terms if the landlord wanted to have the premises vacated he was to give one month's previous notice. The landlord gave a notice on 14th November, 1921 to the tenant requiring him to vacate the premises within one month. Upholding the finding of the Court below that the notice was not valid, Moti Sagar, J. observed that in the absence of a contract to the contray Section 106 of the Transfer of Property Act applies to the Punjab. According to the learned Judge, Section 106 merely laid down in a codified form what in fact had always been understood to be the general law on the subject. Reference in this connection was made by the learned Judge to observations in Foe's Law of landlord and Tenant at page 592, and Dr. Gour's law of Transfer at page 1902.
3. In Rure Khan v. Ghutam Muhammad2, the defendant, according to the terms of the lease, was to be a tenant of the plaintiff for eleven months. The plaintiff was empowered at any time to give the tenant a week's notice to vacate the house. The tenancy commenced on the 8th August, 1920 and on the 3rd June, 1921 the plaintiff sent a notice to the defendant telling him to leave the house within a week or to pay doable rent. Contention was advanced that the plaintiff could only give such notice of ejectment as would terminate on the last day of the month. This contention was repelled by Campbell, J. in Ram Nath v. Badri Nath3,, the defendant took on lease a house with effect from 9th October, 1923. According to the lease deed the rent was to be paid monthly and if the landlord wished to have the house vacated, he should give two months previous notice. On 21st July, 1924 the landlord served a notice on the tenant asking the latter to vacate the house within two months from the date of the receipt of the notice at the risk of being charged-double rent. It was held by Coldstream, J. That the notice given by the landlord was not invalid though it did not expire with the end of a month of the tenancy. Letters Patent Appeal against the decision in -this case was dismissed in limine. In Rattan Sen Sachar v. Shrimati Krishan Kaur4, the landlord served two notices upon the tenant. The first notice given on 18th June, 1931 and required the tenant to vacate the house by the end of the month. The notice was received by the tenant on 23rd June, 1931. The second notice was issued on 20th July, 1931 and required the tenant to vacate the premises within 15 days. The tenancy was a monthly one Bhide, J. held the notices to be not legal because those notices did not give fifteen days to the tenant terminating with the date of the tenancy. In Mst Sunder Bai v. Chaudhrani Muntaz Jan5, one of the arguments advanced in revision was that the tenancy terminated on 7th August and the notice to quit on 8th August, was bad. This contention was repelled by Wetton C. J. and it was further observed that the Transfer of Property Act did not apply to the locality and the technical defects in the notice to quit did not have the force they might have under that Act.
4. Apart from the Punjab cases, the learned Counsel for plaintiff respondent has relied upon the case of Nanakram Das and Others v. Nagarmal6. In that case Narasimhad, J. observed that though the Transfer of Property Act was not in force prior to the merger, the equitable principles of the Act could be applied in respect of leases which took place prior to the commencement of that Act. It does not mean that every provision of that Act should be applied to the very letter. The provisions in section 106 requiring that the notice should expire with the end of the month of the tenancy, according to the learned Judge, need not be literally applied. It was further observed that a reasonable notice would suffice. In Namdeo Lokman Lodhi v. Narmadabai7 their Lordship dealt with the case under Section 111(g) of the Transfer of Property Act relating to a notice of intention to determine lease on forfeiture. It was observed, while dealing with the observations in an earlier Full Bench case of Madras High Court in Brahmagga v. B. Sundramma8, that the observations in that Full Bench case that Sections 105 to 116 of the Transfer of Property Act were founded on principles of reason and equity could not be accepted either as correct or precise. According to their Lordships, to the extent that those Sections of the Act gave statutory recognition to principles of justice, equity and good conscience, they were applicable also to cases not governed by the Act. No specific observation was, however, made on the point as to whether Section 106 of the Transfer of Property Act embodied a principle of justice, equity and good conscience.
5. There can be no manner of doubt that the principles of the Transfer of Property Act, which are based upon justice, equity and good conscience, would apply to disputes relating to even those properties which are situated in areas to which the Transfer of Property Act has not been made applicable. Equally there can be no doubt on the point that the technical provisions of the Transfer of Property Act cannot be invoked in cases relating to property situated in areas not governed by the Transfer of Property Act. This position is not disputed by the learned Counsel for the parties. The question, in the circumstances arises as to whether the Rule embodied in Section 106 of the Transfer of Property Act that the notice of the termination of the tenancy should expire with the end of the month of the tenancy is one based upon justice, equity and good conscience or whether it is a technical rule. After giving the matter our consideration we are of the view that the above rule is of a technical nature. This can best be illustrated with reference to the facts of the present case. In this case the tenant was admittedly given 48 days notice to quit the premises. According to the' learned Counsel for the tenant the notice was not valid because it was not a fifteen days, notice expiring with the end of the month of the tenancy. The invalidity of the notice, it is stated, is due to the fact that the tenant was given more days to vacate than prescribed by the rule embodied in the statute. It is, however, not disputed that there was nothing to prevent the tenant from vacating the premises at say time within forty eight days of the notice. In our opinion, it would be hardly equitable to invalidate the notice of ejectment because the tenant was given more time than was strictly due to vacate the premises in dispute. This would be taking a highly technical view of the matter and we are not prepared to enforce the vigours of that rule in territories to which the provisions of the Transfer of Property Act have not been made applicable. The correct approach, in our opinion is that embodied in the observations of Narasimham J. In Nanakram Das's case (supra) according to which the provisions of Section 106 of the Transfer of Property Act requiring that the notice should expire with the end of the month of the tenancy need not be literally applied and that a reasonable notice would suffice. The notice, in the absence of a contract to the contrary, should in no case be less than that the notice given by the plaintiff to the defendant in the present case was not invalid. No finding, in view of the above, is necessary on the point as to whether the tenancy month was from 8th to 7th of the succeeding month or whether it was from 6th to 5th of the succeeding month.
6. The appeal shall now go back to the learned Single Judge for disposal. The costs shall abide the event.
Case remanded.
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