H. Swarup, J.:— The question of law referred to us by the learned Single Judge is whether acceptance of rent after the institution of suit would amount to waiver of notice under Sec. 113 of the Transfer of Property Act in a case where the U.P (Temporary) Control of Rent and Eviction Act has no application? We would like to make the question more specific by adding a few words thereto. The question as reframed would be: “whether acceptance of the money, share, service or other things to be rendered periodically or on specified occasions to the lessor by the lessee called the rent within the meaning of Sec. 105 of the Transfer of Property Act after the institution of suit would amount to waiver of notice under Sec. 113 of the Transfer of Property Act in a case where the U.P (Temporary) Control of Rent and Eviction Act has no application?” We have made this alteration in the question as the word “rent” is often used to convey other meanings.
2. Sec. 111(h) of the Transfer of Property Act runs as follows: “A lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quite, the property leased, duly given by one party to the other.” Sec. 113 of the Transfer of Property Act runs as follows: “A notice given under Sec. 111, clause (h), 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.
3. Illustration (a) to Sec. 113 of the T.P Act runs as follows: “A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.” It is thus clear that if a lessor accepts as rent the amount tendered by the lessee, it indicates an intention on the part of the lessor to waive the notice. Such an act on the part of the parties to the lease shows an intention to treat the lease as subsisting which impliedly means that the notice given under Sec. 111(h) of the Act stands waived.
4. It will however, always be a mixed question of fact and law as to whether in the circumstances of a particular case, the tender of the amount was by way of rent and its acceptance by the lessor was also as rent showing an intention to treat the lease as subsisting. Rent in this context must be understood to have the meaning assigned to it under Sec. 105 of the Transfer of Property Act. If on the facts established in a case it is proved that the amount was either not tendered as rent or was not accepted as rent then there will be no waiver of the notice to quit the property leased, but in case it is established in a case that the money was tendered as rent and was accepted as rent as contemplated by Sec. 105 of the Transfer of Property Act, there will be a waiver of the notice to quit the property leased showing intention to treat the lease as subsisting. The law laid down in the case of Mangilal v. Sugandh Chand . A.I.R 1965 S.C 101. indicates that merely from acceptance of a payment which the tenant was bound to make even after the quit notice a waiver of the notice to quit cannot be presumed and from the sole circumstance of acceptance of rent (in the broad sense) waiver cannot be inferred. The attending circumstances have to be proved for establishing a waiver under Sec. 113 of the T.P Act. It is the intention to treat the lease as subsisting that is relevant. If the amount tendered is accepted as rent for the period subsequent to the expiration of the notice to quit the property leased, the same may amount to showing an intention to treat the lease as subsisting. The basic question will however, always be whether the amount was accepted as rent within the meaning of Sec. 105. In the cases of Permanand v. L. Murari Lal . 1966 A.L.J 1074., Motilal v. Basant Lal . A.I.R 1956 All. 175., Mohammad Hanif v. Rex . A.I.R 1952 Alld. 578., Kamlapat Sahai v. Mt. Manho Bibi . A.I.R 1948 Oudh 127. and Navnitlal v. Baburao . A.I.R 1945 Bom. 132., the Court came to the conclusion on the facts of the case that the amount tendered had not been accepted as rent so as to attract the provisions of Sec. 113 of the Transfer of Property Act. The point whether waiver can be made after the institution of the suit did not remain of any significance in those cases after the finding that the money had not been accepted as rent as understood in Sec. 105 of the T.P Act. In the case of Kai Khusro v. Bai Jerbai . 1949 F.C 124. it was held on the facts of that case that money was not only paid as lent by tenants but was also received rent by the lessor and consequently the tenancy continued under Sec. 116 of the T.P Act.
5. In the case of Ram Dayal v. Jawala Prasad . A.I.R 1966 Alld. 623., this Court, following the decision in Maniklal v. Kadambani . A.I.R 1926 Cal. 763. held that the rent if accepted even after the institution of a suit would amount to waiver of the notice to quit the leased property within the meaning of Sec. 113 of the T.P Act. We are in agreement with this view as, in our opinion, though the institution of a suit may be a circumstance to be taken into consideration while determining the intention of the lessor to treat the lease as subsisting or not, it per se cannot be a condition or circumstance which may debar the parties from treating the lease as subsisting by voluntarily waiving the notice to quit the property leased. Sec. 113 of the T.P Act read with Sec. 116 of the Act makes it clear that the parties to the contract of lease have a right to continue the lease even after it comes to an end. If two persons have a right to create a lease at any time there can be no reason for holding that they cannot continue the lease by waiving the notice to quit. The notice to quit being the act of a party himself can always be waived by him. The effect of waiver on the suit will only be that the plaintiff will no longer be entitled to get the relief of ejecting the tenant. The suit for ejectment of a tenant is filed on the ground that the expiry of the notice to quit given under Sec. 111, clause (h) of the T.P Act had rendered the possession of the lessee without title and the landlord with title seeks to eject him. But once the notice to quit is waived, i.e to say withdrawn by accepting the rent subsequent to the date of expiration of the notice, the lease becomes subsisting and the possession of the lessee becomes one with title and the decree for ejectment cannot be passed.
6. The distinction between Sec. 112 and Sec. 113 of the T.P Act also indicates that the institution of the suit does not take away the right of the parties to waive the notice to quit the property leased and to continue the lease. In the case of forfeiture, the law permits the waiver of the forfeiture by acceptance of rent only till the suit for the ejectment of the lessee on the ground of forfeiture is instituted. Any acceptance of rent thereafter does not amount to waiver. On the other hand, Sec. 113 of the Act imposes no such condition and the institution of the suit cannot be a ground for debarring the parties to continue the lease. In our view a lessor has an unfettered right under Sec. 113 of the Act to waive the notice given by him under Sec. 111(h) of the T.P Act if the lessee expressly or impliedly consents to continue the lease and this right is not taken away by the institution of a suit to eject the lessee.
7. Our answer to the question in the form modified by us is in the affirmative. The case will now go back to the learned Judge for decision of the appeal on merits.
8. Question answered.