Usharani Debi, v. The Research Industries Ltd.

The Judgment of the Court was as follows:

Gentle, J.:— The Plaintiff claims possession of a three-roomed flat, being part of No. 91, Dhurrumtolla Street, Calcutta, of which, it is alleged, the Defendant Company was the monthly tenant. The tenancy, it is common ground, commenced on September 1st, 1941. There is also a claim for Rs. 55-8 as rent for the period from February 18th, 1942, until March 19th following, and mesne profits from the latter date.

2. The Plaintiff purported to terminate the Defendant Company's holding by a notice to quit given by her attorney dated March 5th, 1943, which expired on March 31st to determine the holding on that day. The amount claimed as rent is admitted. This has not been paid either to the Plaintiff or to the Rent Controller. It is also admitted by the Defendant Company that the notice of March 5th, 1943, was received. What is disputed is its validity and effect.

3. The Defendant alleges that the flat was let expressly for manufacturing purposes and that, under sec. 106 of the Transfer of Property Act, the term of the demise should be deemed to be from year to year terminable by six months' notice expiring with the end of the year of the tenancy, such notice being given by either party. In other words, the Defendant Company was entitled to six months' notice to quit expiring on September 1st in any one year and at no other time.

4. It is also contended that there was an express agreement at the time of the original letting that instead of 15 days' notice to terminate a monthly tenancy, it was agreed that the notice should be of one month.

5. The whole of premises No. 91, Dhurrumtolla Street, originally formed part of a property belonging to a joint Hindu family. Partition was effected by a suit in this Court, No. 1697 of 1937, in which Mr. U.C Law, Barrister-at-Law, was appointed Commissioner of Partition and Receiver. The premises was sold to the Plaintiff and she acquired them by a conveyance dated February 17th, 1943, at which time the Defendant Company was the tenant of the three-roomed flat.

6. Prior to the sale to the Plaintiff, Mr. Law as the Receiver, let the flat to the Company at a rental of Rs. 40 per month. The letting was the result of an arrangement between Mr. Law and a Mr. S.C Ghosh, who described himself as a Director of the Defendant Company and a partner of the Company's managing agent firm. Mr. Law said that in August, 1943, he agreed with Mr. Ghosh to let him the flat on a monthly tenancy commencing on September 1st 1941, and that it was let as a residence for Mr. Ghosh and as his office. Mr. Law denied that there was anything mentioned, at the time of the letting, that the premises were required to be used for the purposes of manufacturing a chemical product known as “Savol” which, it is stated, is a preparation designed to increase the mileage performance of petrol in a motor car, and Mr. Law added, he had never been told that this chemical preparation was manufactured on the premises.

7. Mr. S.C Ghosh, in his evidence, said that Mr. Law was told at the time of the letting and it was agreed, that the Company required the premises for manufacturing “Savol” and at the outset, two laboratories with glass tumblers, retorts, a still and other apparatus were installed and throughout the period, from September, 1941, to the present time, “Savol” has been manufactured in the flat.

8. In August, 1941, after the arrangement between Mr. Law and Mr. Ghosh had been made to let the flat, Mr. Ghosh paid the amount of one month's rent as and by way of a security deposit in respect of the flat. Mr. Law's receipt acknowledging payment stated that the tenancy was to commence from September 1st, 1941, on a monthly basis, at a rent of Rs. 40.

9. After occupation had commenced, Mr. Ghosh, obviously on behalf of the Defendant Company, gave to Mr. Law notice to quit. The notice was contained in his letter of October 30th, 1941, in which he states that the flat was let out to the writer for the purposes of the Company con a monthly basis and notice was given of the intention to vacate on November 30th, 1941. To the same effect is a notice to quit given by Mr. Ghosh to Mr. Law dated December 1st, 1941, to terminate the letting on January 1st, 1942. In neither of the three documents, to which I have referred, is there any mention of the premises being let for manufacturing purposes. The two letters and notices to quit written by Mr. Ghosh refer to the letting as being upon a monthly basis and a notice to quit, of not more than one month, is given by the Defendant Company to terminate the holding. The fact that the Company remained in occupation is of no importance.

10. I have no hesitation in accepting Mr. Law's evidence that nothing was mentioned to him at the time of the letting that the premises were required for manufacturing purposes and he was never informed that that was the purpose to which the premises were to be put. Whatever use the Company or Mr. Ghosh may have made of the premises, in my view the letting was one which was not for manufacturing purposes. It was an ordinary monthly letting of the flat, as Mr. Law says, and there is no reason to doubt it for one moment, as a residence and as an office for Mr. Ghosh.

11. Sec. 106 of the Transfer of Property Act provides that ordinarily, in the case of a tenancy from month to month, it is terminable by 15 days' notice expiring at the end of a month of the tenancy. Mr. Meyer, on behalf of the Defendant Company, contended that the receipt dated August 20th, 1941, and the two letters and notices to quit, written and given by Mr. Ghosh on October 30th and December 1st, 1941, show that there was an express term of the letting that the notice to quit should be of one month's duration and not of 15 days. Neither Mr. Law nor Mr. Ghosh mentioned in their evidence that there was any such express term and I can find nothing in the documents to support such contention. The documents are quite clear; they are merely giving a description of the tenancy, namely, a monthly one.

12. The main argument which Mr. Meyer has very ably developed before me is with respect to the validity of the notice to quit, by reference to the commencement and termination of the monthly tenancy. It was expressly agreed, and it is common ground, that this tenancy commenced on September 1st, 1941. The notice to quit purports to terminate the holding on March 31st, 1943. Mr. Meyer's argument is that the monthly tenancy could expire, not on the last day of a calendar month, but on the first day of any month subsequent to October, 1941. His contention arises out of the provisions of sec. 110 of the Transfer of Property Act, the material words of which are as follows:

“Where the time limited toy a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded.”

13. The argument which was addressed to me is that the tenancy commenced on September 1st, by sec. 110, September 1st, must be excluded, consequently the tenancy could not be determined at the end of the calendar month, but must determine only upon the first day of some subsequent month. There is no doubt that if sec. 110 does not apply, then the tenancy which was created, determines on the last day of any calendar month.

14. What is the nature of the tenancy which was created? In my view, it was not one for any specified or limited period. A monthly tenancy is a letting for an indeterminate time which is terminable, as in the present case, upon 15 days' notice being given either by the lessor or by the lessee. The notice to quit must expire upon the last day of any current period of the tenancy.

15. Reference was made in the course of the argument to a decision of Sir John Beaumont, C.J, and Kania, J., of the Bombay High Court, sitting on appeal from a decision of Chagla, J., in the Ordinary Original Civil Jurisdiction of that Court,— the case is The Utility Articles Manufacturing Co. v. The Raja Bahadur Motilal Bombay Mills, Ltd.(1). A description of the nature of a monthly tenancy, which I have ventured to express above, appears in the course of the judgment of the learned Chief Justice at p. 563 of the Report. With/his observations I respectfully agree, except that I would prefer, in place of the words: “A monthly tenancy, that is, a tenancy subject to a month's notice, creates in the first instance a tenancy for two months certain,” words to the effect that, “a monthly tenancy is one which cannot be determined before the expiry of two months.” A monthly tenancy, in my view, is not a tenancy which commences or begins in one month and on its expiry a fresh tenancy is created in the following month or months, but is one tenancy for an unstated period which is determinable by one or other of the parties giving a notice to quit.

16. That being the position, the next question which arises is whether sec. 110 applies to the present case. Attention is required to the words which are used. They are:

“Where the time limited by a lease of immovable property is expressed as commencing from a particular day.”

17. Special attention is required to the words “The time limited.” When there is a lease for an unspecified period which is terminable upon the giving of a notice to quit, in my view there is no time limited for the period of the lease. The provisions of sec. 110 apply only to a lease in which the period of its tenure is expressed. In my view sec. 110 does not apply to a monthly tenancy, and again with respect I agree with the conclusions and the decision of the Bombay High Court. This view is in accord with the opinion expressed by an Appellate Bench of this High Court in The Calcutta Landing and Shipping Co., Ltd. v. The Victor Oil Co., Ltd.(2).

18. In support of his argument that, in the present case, the monthly tenancy should have been determined on April 1st, and not on March 31st, and on the first of a calendar month and not on the last day of a calendar month, Mr. Meyer-referred to a number of authorities, particularly he placed reliance upon a decision by their Lordships of the Judicial Committee in Benoy Krishna Das v. Salsiccioni(3). In that case a lease for years ended on June 1st, 1925. The tenants remained in occupation and became monthly tenants by reason of the provisions of sec. 116 of the Transfer of Property Act. Their Lord ships of the Privy Council applied the provisions of sec. 110 to the lease for years which commenced on June 1st, 1921, and held that that day must be excluded; consequently the tenure expired on June 1st, 1925, when, by operation of the law under sec. 116, a monthly tenancy between the landlord and the tenant commenced. It was held that a notice to quit expiring on March 1st, 1928, was a valid notice. It is clear that in that case the provisions of sec. 110 were not applied to the monthly tenancy.

19. A decision to the same effect is to be found in the authority which I have already quoted, The Calcutta Landing and Shipping Co.'s case, in which there was no previous lease for years and a monthly tenancy between the parties was the original letting, which commenced on June 1st, 1936. It was held that a notice to quit which purported to terminate the holding on December 1st, in some subsequent year, was a bad notice and that the notice should have been given to terminate the tenancy by the last day of November. As I understand it, the decision of Ameer Ali, J., in Cham Chandra Ghose v. Bankim Chandra Sett(4) is to the same effect.

20. In my opinion, the monthly tenancy leaving commenced on September 1st, 1941, the day upon which that tenancy could properly be determined was the last day of a subsequent month. Sec. 110 does not apply and the notice to quit given on March 5th, 1943, by the Plaintiff to the Defendant Company, was a valid notice and determined the tenancy.

21. I think I should refer to one matter which has arisen during the course of the argument. Reference was made to a note at p. 589 in the second edition of Sir Dinshaw Mulla's learned work on the Transfer of Property Act. The note is as follows:

“This is the effect of sec. 110 and the Privy Council have held that if the tenancy is a monthly tenancy from the 1st of a month, it expires at midnight on the first of each succeeding month.”

22. The authority for this note is the decision of the Judicial Committee to which I have referred. I cannot find support in that decision for the note which appears in Sir Dinshaw Mulla's book. I make this observation with every respect for and fully appreciating the inestimable value of the learned author's work upon the Transfer of Property Act.

23. There will be a decree for possession, together with a decree for Rs. 55-8 as rent, and for mesne profits calculated from April, 1943, at the rate of Rs. 40 a month until possession is given.

24. The Plaintiff is entitled to costs, including reserved costs if any.

25. Stay of execution solely and in so far as possession is decreed for one month. If during that time notice of appeal is given, the stay will continue until disposal of the appeal. If notice of appeal is not given, stay of execution is removed.

26. The money in the hands of the Plaintiff's attorney, which was paid in fulfilment of an order giving conditional leave to defend to the Defendant, will be appropriated towards the amount of the decree in respect of the rent and mesne profits.

27. If notice of appeal is given, stay of execution pending the disposal of the appeal is dependent upon the amount of rent and mesne profits up to date being paid within one month and the amount of mesne profits from to-day until disposal of the appeal being promptly paid by the first of each month.

28. If not paid, stay of execution is removed.

29. Payment of rent and mesne profits is without prejudice to the rights of each party with regard to the matters which will arise in the appeal.

30. There will be an order for expedition.

Solicitors: S.N Dutt for the Applicant; S.K Ganguli & Co. for the Respondent.