S. Murtaza Fazl Ali, J.:— This it a plaintiff's second appeal arising out of a suit for ejectment brought by the plaintiff. It appears that the defendant was a tenant of a shop situated in Samba on a monthly rental of Rs. 20 having executed a rent deed in favour of the plaintiff on 4-10-1960. The plaintiff before filing the suit served a notice on the defendant to quit and to pay the arrears of rent claimed by him. As the defendant did not vacate the disputed shop, the plaintiff brought the present action for ejectment and also pleaded that the shop was required for his personal necessity.
2. The suit was contested by the defendant firstly on the ground that there-was no personal necessity and that the notice to quit was not in accordance with law. The trial court accepted the plaintiff's case and decreed the plaintiff's suit. The defendant then went up in appeal to the District Judge and while the appeal was pending before him, it appears that the defendant offered the rent of the premises which was accepted by the plaintiff on 14-11-1963 and 18-11-1963 amounting to Rs. 240. The defendant then filed an application before the appellate court that by acceptance of rent, the plaintiff had waived the notice to quit and the tenancy must be deemed to be subsisting and hence the plaintiff's suit should be dismissed on this ground. The appellate court on the application of the defendant examined the plaintiff who admitted having received the rent during the pendency of the appeal before the appellate court although the receipt showed that the rents were accepted under protest. The appellate court, however, accepted the defendant's case that by accepting the rent, the notice to quit was waived and, therefore, the plaintiff's suit was dismissed by it. Hence the second appeal before this court. Both the courts below have, however, concurrently found that the plaintiff required the house for personal necessity and that the notice to quit which was given to the defendant before the suit was valid in law.
3. The only question for determination in this appeal is as to whether or not the acceptance of rent by the plaintiff during the pendency of appeal before the lower appellate court would amount to waiver of notice to quit so as to entail a dismissal of the plaintiff's suit. It is common ground that the suit is not governed by the Jammu and Kashmir Houses and Shop Rent Control Act, which has not been extended to Samba. The appellate court was of the view that in view of the illustration to Section 113(a) of the Transfer of Property act, the conduct of the appellant in accepting the rent clearly amounts to a waiver of the notice to quit. The appellate court has further relied on the following decisions: AIR 1949 Cal 47, AIR 1949 FC 124, AIR 1959 Bom 292, AIR 1926 Cal 763, AIR 1957 Cal 627 and AIR 1959 Andh Pra 346. We have heard the arguments of the learned counsel for the parties at length and we are not in a position to agree with the view taken by the learned lower appellate court. In the instant case, there are some important circumstances which distinguish the facts of the present case from the facts of the cases relied upon by the appellate court cited above. In the first place, in all those cases excepting AIR 1926 Cal 763 the cases were governed by the local Rent Control Act and their Lordships were not called upon to decide the question of waiver of notice simpliciter under the provisions of the Transfer of Property Act. Secondly, rent in the instant case has been accepted by the plaintiff while the appeal before the lower appellate court was passed and a decree for ejectment had already been passed by the trial court. Thirdly, the acceptance of rent was not categorical or unequivocal. The receipts granted by the plaintiff clearly show that the rent was accepted under protest. The words appearing in the receipt are (words in the vernacular omitted) which mean that the plaintiff admitted having accepted the rent but under duress.
4. In these circumstances, therefore, it cannot be said that the acceptance of rent on the part of the plaintiff was voluntary so as to give rise to an inference of a clear intention on his part to treat the lease as subsisting. This important feature of the present case puts the defendant completely out of court. It is well settled that once a valid notice to quit is given to the defendant, the onus of proving that the notice was I waived lies on the defendant. In the pleadings, the defendant has not at all taken this point and could not have taken it because the rent was not accepted as long as the suit was pending before the trial court. Furthermore, once a decree for ejectment is passed against the defendant, the defendant becomes a trespasser and any acceptance of rent thereafter must be presumed to be acceptance of rent merely as compensation for use and occupation of the premises unless the receipt shows an intention to the contrary. Section 113 of the Transfer of Property Act, runs as follows:
“A notice given under Section 111, clause (b), is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.”
5. A perusal of this Section clearly shows that a waiver of the notice to quit would take place only if the lessor expresses his intention to treat the lease as subsisting. The word “consent” used in the section clearly implies a free consent and not a consent obtained by duress or pressure of circumstances. There can be no doubt that the acceptance of rent may be a circumstance to give rise to an inference of an intention of the lessor to treat the lease as subsisting, but such a conduct on the part of the lessor must be clear and categorical leading to an irresistible inference of his intention to treat the lease as subsisting. The conduct has to be taken in conjunction with the various circumstances in the instant case, when the plaintiff accepted the rent under protest or duress and took no action in withdrawing the suit, against the defendant and further accepted the rent only after a decree for ejectment was passed, it cannot be inferred as a matter of law that by accepting the rent the plaintiff had the intention to treat the lease as subsisting. In order to apply the provisions of Section 113 of the Transfer of Property Act the essential requisite is ‘consensus ad-idem’ and this appears to be completely wanting in the present case in Pulin Behari Shaw…Defendant v. Miss Lila Dey…Plaintiff-.. AIR 1956 Cal 106 Mookerjee, J. refused to regard mere acceptance of rent by the landlord as proof of his intention to treat the lease as subsisting. The learned Judge observed as follows:
“There is nothing in the present record to show that the plaintiff received the said monies as rents strictly so called which would operate to continue the old tenancy. On the other hand, there is sufficient denial on her part on this point and circumstances support the same in this state of things, the receipt of the monies in question may well constitute acceptance of “rents” under the Rent Control Law in respect of the statutory tenancy under that law at any rate, it is by itself insufficient to lead to the necessary inference of the requisite intention on the plaintiff's part to continue the old tenancy and thus constitute waiver of the notice to quit and in the light of the decisions of this court of which reference be made inter alia to Panchanan Ghose…Defendant, v. Haridas Banerjee…Plaintiff, ., AIR 1954 Cal 460 and Mahadeo Prasad… v. Sm. Sulekha Sarkar…., AIR 1954 Cal 404 the essential requisite the necessary consensus ad idem as it is often called — would be wanting and a finding of waiver of the notice to quit, the onus to prove which is undoubtedly on the defendant would not be justified.”
6. Similar view was taken by a previous decision of the Calcutta High Court reported in AIR 1954 Cal 404.
7. Similarly in AIR 1953 Nag 219, B.P Sinha, C.J as he then was observed as follows:
“It is true that in some cases it has been held that after a notice to quit has been served on the tenant, if the landlord has received certain payments by way of rent, he will be deemed to have waived the notice. But in this case not only had the landlord served the notice to quit but he had actually instituted the suit for ejectment and for damages for use and occupation. If the defendant wished to insist upon the plaintiff withdrawing his claims inclusive of the claim for ejectment and damages for use and occupation he could have entered into an agreement with him and then made the payment. In that case, of course, the position would have been clear. But without insisting upon the plaintiff withdrawing his suit for ejectment and for damages for use and occupation, if he made certain payments those payments cannot be taken to be inconsistent with the plaintiff's right which he sought to enforce by the suit.”
8. It is clear from the observations of lordship that acceptance of rent after having instituted the suit, without any attempt on the part of the landlord to withdraw the suit, cannot be held to amount to waiver of notice.
9. A similar view was taken by Kidwai, J. in AIR 1948 Oudh 127 wherein it has been held that once a suit has been instituted any act of the lessor accepting the rent cannot by itself be evidence of an intention on his part to treat the lease as subsisting. In this connection, the learned Judge observed as follows:
“Once a suit has been instituted it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. He may renew the lease, in which case, it would not be a question of waiver but a question of fresh lease. In the present case, not only had the lessor instituted the suit but she had obtained a decree for ejectment and she had attempted to execute that decree……………
It is no doubt true that in both the receipts the word “rent” is used instead of the words “damages for use and occupation,” but in view of her conduct, misuse of the word “rent” would not Indicate that the notice had been waived.”
10. In this case also it would appear that the rent was accepted after a decree for ejectment was passed by the court and his Lordship refused to regard the circumstance as one amounting to waiver of notice.
11. In AIR 1949 FC 124, their Lordships clearly indicated that the acceptance of rent must be as such and not without prejudice to the right of the parties. Relying upon a decision of AIR 1928 PC 146, their Lordships observed as follows:
“That in such circumstances no fresh tenancy could be implied or presumed under Section 116 of the Transfer of Property Act from payment and receipt of rents is shown by the decision of the Privy Council in Kamakhya Narayan Singh v. Ram Raksha Singh, 55 Ind App 212 : AIR 1928 PC 146. In that case the heirs of a grantee of a mokurrari istimarari patta, which was eventually construed to convey only a life estate, were in possession claiming the tenure to be heritable and paid rent which the landlord accepted giving, however, receipts in marfatdari form, that is, in the name of the original grantee, so as not to prejudice his contention that the grant was not a heritable one and the persons who paid rents were not his tenants.
12. This is to say, where the parties after the expiry of the lease pay and receive rents without prejudice to their respective contentions, it is to be inferred that they have agreed that no assent to the holding over should be implied or presumed.
13. But the position is different where the tenancy is at an end either by expiry of a notice to quit or by effluxion of time. In such a case the continuance in possession by the former tenant would be wrongful and he would be liable to pay, not rent, but only compensation for use and occupation. If in such circumstances the lessor received the money sent as “rent” it could not be said that he took it “wrongfully” and if he made it clear that he received it without prejudice to his right to insist that the tenancy had come to an end, there could be no question of his words making his act wrong, or of his electing to affirm the tenancies. A fresh tenancy could arise only by agreement of the parties and whether an agreement could be implied is a matter for proper inference to be drawn from the conduct of the parties in the light of surrounding circumstances.”
14. The observations of their Lordships of the Federal Court clearly indicate that in the present case when the plaintiff accepted the rent after the decree for ejectment against the defendant had been passed, the mere use of the word “rent” could not possibly indicate that he had assented to the continuance of the tenancy of the defendant.
15. Similarly in AIR 1945 Bom 132 their Lordships of the Bombay High Court observed as follows:
“The argument of the appellant is that because the landlord accepted the amount sent as rent, although while accepting the same he stated that he was receiving it on account of compensation for use and occupation, he must in law be deemed to have accepted it as rent, and, therefore, there was a waiver of the notice to quit. In my opinion, this line of argument is faulty, because it attempts to split the provision of S. 113 in two parts. It is an attempt to read in S. 113 the words “by acceptance of rent” as an act resulting absolutely in the waiver of the notice to quit irrespective of the question whether there was an intention to treat the lease as subsisting or not. It is true that under illustration (a) if an amount is sent as rent and is ‘received as rent’ there will be a waiver of a notice to quit. But the section does not provide that if an amount is sent as rent, but is received by the landlord and accepted by him not as rent but as compensation for use and occupation that is receipt of rent. In each case, according to the wording of S. 113 it is for the court to determine whether the act in question (whether it is a receipt of the amount sent as rent or is the receipt of the amount sent without any statement at all), discloses an intention to treat the lease as subsisting. If the answer to the question is in the affirmative then only if there is consent, express or implied, of the tenant, there is a waiver of notice to quit.”
16. Even in AIR 1959 Bom 292 which has been strenously relied upon by the counsel for the respondents, their Lordships clearly indicated that the acceptance of rent after the Institution of the suit may not itself amount to waiver of notice. While referring to a case of the Nagpur High Court relied upon by the bench, their Lordships distinguished the said case and observed as follows:
“In Ambadas v. Purushottam, Second Appeal No. 597 of 1950 D/- 26-12-1950 (Nag) on which also reliance was placed by counsel for respondents has in our judgment no bearing on this case. In that case Mr. Justice Deo observed and with respect rightly that illustration (a) to Section 113 of the Transfer of Property Act does not warrant the contention that acceptance of rent in every case is evidence to prove the intention to treat the lease as subsisting especially when a suit in ejectment is Instituted. That case, in our judgment has no application because in the present case the acceptance of rent was prior to the date of the institution of the suit by the plaintiff”
17. Similarly in the case of Davies v. Bristow, (1920) 3 KB 428, it was clearly held that mere acceptance of rent after the expiry of the notice to quit could not be taken as evidence of the assent of the landlord to the continuance of the tenancy on old terms.
18. The only case which has taken the view that acceptance of rent by the landlord even during the pendency of the suit would amount to a waiver of notice in AIR 1928 Cal 763. This was, however, a decision of a single judge and was severely criticised and dissented from in a later case of AIR 1954 Cal 404 where Mookerjee, J. dissenting from this judgment observed as follows:
“The decision of Buckland, J. in AIR 1926 Cal 763 where he inferred waiver of the notice to quit from the landlord's withdrawal of deposit from the Rent Controller did not take into consideration the various aspects from which this question of waiver ought to be approached and considered and its criticism in the case of Navnitlal Chuni-Lal v. Baburao (No. 1) AIR 1945 Bom 132 at page 134 of the report is not altogether unjustified. Lord Mansfield's observation quoted at pages 134 to 135 of this latter report from the old English case of Doe v. Batten (1775) 1 Cowp 243 deserves careful consideration and in my opinion, the view of Sarkar, J. in AIR 1951 Cal 312 and of the Bombay High Court in the case of Baldeodas Mahavirprasad…Plaintiffs v. G.P Sonavalla…Defendants, AIR 1948 Bom 385 is on the whole correct.”………………… Moreover, in view of the authorities which we have cited we are, with very great respect unable to agree with the view taken by Justice Buckland in AIR 1926 Cal 763. Moreover, as pointed above, in the instant case, the rent receipt clearly shows that the rent was accepted under protest and this by itself distinguishes the present case from the facts of the case reported in AIR 1926 Cal 763, even if the said case may be held to have been correctly decided.
19. In view, therefore, of the authorities discussed above, we are unmistakably of the view that in the facts and circumstances of the present case, the acceptance of rent by the plaintiff under protest, after a-decree for ejectment had been passed against the defendant and while an appeal against the decree was pending before the lower appellate court, does not amount to waiver of notice so as to entail a dismissal of the suit. The finding of the lower appellate court, therefore, that the plaintiff by accepting the rent had treated the tenancy as subsisting is legally erroneous and cannot be sustained.
20. For these reasons, therefore, the appeal is allowed, the judgment and the decree of the lower appellate court are set aside, and that of the trial court is restored. The plaintiff's suit is decreed with costa throughout.
21. J.N Wazir, C.J:— I agree.
HJ/JHS/D.V.C
22. Appeal allowed.