1. This appeal by defendant 1 tenant is against a decree for ejectment. Defendant 2, who was tenant of defendant 1, has left the premises and is not interested in the result of the appeal. He is not represented.
2. The premises in dispute were leased out to defendant 1 by Madhojibhai. This lease was given, according to defendant 1, in 1945. Madhojibhai died leaving behind the plaintiffs as his heirs. The eldest son Balarambhai is the ‘Karta’ of the family. On 22-4-1947 he made an application (Ex. D-1) to the Rent Controller for permission to determine the lease of defendant 1 and obtained it. On behalf of Balarambhai as ‘Karta’ of the joint family, Shri M. Bhaduri, Advocate, Raipur, sent to the defendant the notice (Ex. D-2), dated 2-1-1948, determining the lease. This notice was received on 7-1-1948. A second notice (Ex. D-3), dated 14-4-1948, was apparently sent on 16-4-1948.
3. Defendant 1 was not able to say when he received it. This notice determined the tenancy with the expiry of the April month of the tenancy; but it is apparently invalid because it does not allow the tenant the period required by Section 106 of the Transfer of Property Act. The third notice (Ex. D-4), dated 6-5-1948, was received by the defendant on 13-5-1948.
4. It is not disputed that the tenancy was from month to month according to the English calendar, beginning with the first and ending with the last day of the month. According to the plaintiffs, the lease was validly determined by the notice Ex. D-2 given after obtaining the permission of the Rent Controller. The lower appellate Court decreed the suit for ejectment.
5. Shri M.R Bobde appearing for the appellant has raised the following contentions.
(a) That Shri V.K Mehta, E.A.C, not having been appointed a Rent Controller in the manner required by cl. 3, Central Provinces and Berar House Rent Control Order, 1947, had no jurisdiction to grant the permission.
(b) That alternatively, the permission having been obtained by Balarambhai in his personal capacity cannot be availed of by the plaintiffs to determine the tenancy.
(c) That the notice Ex. D-2 is not valid as it is not in accordance with Section 111(h), read with Section 106 of the Transfer of Property Act.
(d) That the notice Ex. D-2 was waived by the notices Exs. D-3 and D-4, giving rise to a fresh tenancy which could be determined by a fresh notice after obtaining afresh the permission of the Rent Controller.
6. These contentions were raised in the lower appellate Court and were negatived.
7. Clause 3, Rent Control Order, 1947, runs thus:
“For any area within his jurisdiction to which this Order is extended, the Deputy Commissioner shall appoint an officer, being a gazetted officer, to be Controller.”
8. It is not disputed that Shri V.K Mehta was a gazetted officer. The Deputy Commissioner had by his distribution memorandum (Ex. D-5), dated 27-5-1947, allotted to him the work of the Rent Controller. The learned Counsel submits that the Deputy Commissioner had no power to allot the work to Shri Mehta unless his appointment was first made by him purporting to act under Cl. 3 of the Order.
9. No doubt there was no order prior to Ex. D-5, appointing Shri Mehta as Rent Controller. A similar contention was not accepted in — ‘V.P Thatte v. Vithaldas’, SA No. 258 of 1951 D/- 15-6-1951 (Nag) (A). It was held that where a Deputy Commissioner/District Magistrate allots to a gazetted officer the work of a Rent Controller, that is ‘appointment’ within the meaning of Cl. 3 of the Order. I respectfully agree.
10. The ‘Karta’ of a joint Hindu family represents it in suits by or against the family. It is not necessary that the capacity in which he sues or is sued should be specifically mentioned in the pleadings. It is sufficient if the person suing or sued had representative capacity. This fact can be established by independent evidence. ‘Trimbak v. Lonkaran’, AIR 1948 Nag 324 (B). Balarambhai being the eldest male member of the family was entitled to manage the affairs of the family and the family properties.
11. He is presumed to be the ‘karta’ until the contrary is shown. — ‘Bhaktavatsaladu v. Venkatanarasimha Rao’, AIR 1940 Mad 530 (C). To rebut this presumption the learned Counsel relies on the averments in paras 3 and 4 of the application to the Rent Controller (Ex. D-1), and submits that Balarambhai acted in his individual capacity as a co-owner. In paras 3 and 4 it was averred that the applicant Balarambhai needed the premises in suit for the purpose of his ‘bona fide’ business of Electrical and Mill Stores, which he had started two years earlier and was carrying on in the town of Raipur.
12. There is no evidence that this business was started with his separate funds and was not the joint family business. On the contrary, defendant 1 as D.W 1 has admitted that the plaintiffs dealt in machinery parts and had their shop in the Ramdeo market and that it was not in a prominent place. It is, therefore, manifest that the business referred to in the application Ex. D-1 was a joint family business run by the ‘karta’ Balarambhai.
13. Agreeing with the lower appellate Court, I therefore hold that Balarambhai made the application Ex. D-1 as a ‘Karta’ of the joint family and the order passed thereon enues to the benefit of all the plaintiffs. ‘Abdul Hamid v. Bhuwaneshwar Prasad’, AIR 1953 Nag 18 (D) and ‘Abani Bhusan Mukherjee…Defendant, v. Prodyut Kumar Singha & Ors.…Plaintiffs, * 461 (E), relied on by the learned Counsel are distinguishable on their own facts.
14. The next contention of the learned Counsel is as regards the validity of the notice Ex. D-2 under Section 111(h), read with Section 106 of the Transfer of Property Act. This contention was not raised in the trial Court. All that was alleged was that the notice was void because the Rent Controller had no jurisdiction to grant the permission, and that if it was valid, then it was waived by a subsequent notice.
15. This contention was however raised in the lower appellate Court and was examined. Since the respondents did not point out this omission and Shri Bobde was allowed to argue this point on the assumption that his client had raised the contention in the trial Court and since the lower appellate Court has decided it, I proceed to examine it.
16. According to the learned Counsel, the notice should have been to vacate the premises on the last day of the month. The notice to vacate on the next day i.e the 1st, is invalid. Reliance was placed on — ‘Chand Mohamad v. Murtaza Khan’, AIR 1950 Nag 233 (F). As pointed out by the lower appellate Court, this decision is not an authority for the proposition advanced by the learned Counsel.
17. Rao, J. who delivered the opinion of the Court in that case has held in — ‘Gayaprasad v. Munnilal Narayan’, AIR 1952 Nag 101 (G) that notices to quit are to be construed not with a desire to find faults in them which would render them defective but are to be construed ‘utres magis valeat quam pareat’ and that a notice to quit on a day which is a periodical recurrence of the day on which the tenancy be-fgan is not ineffective. A similar view was taken in — ‘Gnanaprakasam v. F.S Vaz’, AIR 1931 Mad 352 (H). Reliance was placed on the leading case on the subject, — ‘Harihar Banerji v. Ramshashi Roy’, AIR 1918 PC 102 (I).
18. This is the consistent view of this Court. See — ‘L.S Agnihotri v. Gangaram’, SA No. 644 of 1949 D/- 26-2-1953 (Nag) (J), — ‘Nagorao v. M. Shriniwasrao’, SA No. 623 of 1952 D/- 9-10-1953 Nag (K) and— ‘Kisanlal v. Madhaorao’, SA No. 12 of 1949 D/- 12-4-1954 (Nag) (L). In — ‘Rochaldas v. Ratanchand’, AIR 1954 Nag 292 (M) another Division Bench has held that a liberal construction has to be put upon a notice under Section 106 of the Transfer of Property Act, so as to find out the true intention of the party giving the notice and whether the party served with the notice could understand it in the sense meant by the given of the notice.
19. In Ex. D-2 it is stated:
“my client does hereby terminate the tenancy by giving you 15 days notice ending with the month of tenancy.”
“That as your monthly tenancy commences from, the first of the month and ends with 30th or 31st of each month as the case may be, you are asked to take this notice of the determination of your tenancy and should vacate possession on the 1st of February and deliver possession to my said client.”
“That if you fail to vacate possession and deliver the possession as required to my client on the 1st of February 1948, a civil suit is ejectment will be filed against you and you shall, be liable for costs.”
20. On a reasonable reading of this notice it is-manifest that it terminates the tenancy by giving 15 days notice ending with the calendar month of the tenancy. Defendant 1 was therefore not entitled to remain in possession beyond the month of January 1948. Since he was entitled to remain in possession till the midnight of the 31st January, he was naturally asked to vacate the premises on the following day. This was obviously a concession to the defendant. Agreeing with the lower appellate Court, I hold that the notice Ex. D-2 is valid.
21. The next contention of the learned Counsel was that the notice Ex. D-2 was waived by the notices Exs. D-3 and D-4, and that the notice D-3 or D-4 is not valid as it was not given after obtaining a fresh permission from the Rent Controller. According to the learned Counsel, a fresh tenancy was created on waiver of the notice Ex. D-2 by service of either of the other two notices, and brought into existence a fresh, contract of tenancy.
22. Reliance is placed on Illustration (b) to Section 113 of the Transfer of Property Act and para 153 at page 142 of Volume 20 of Halsbury's Laws of England. As already pointed out, Ex. D-3 is an invalid notice and is of no consequence. No doubt, Ex. D-4 is a valid notice. It is similar in terms to Ex. D-2.
23. Section 113 provides that when a notice given under S. III(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, that shows an intention to treat the lease as subsisting. This does not mean that a new lease has come into existence. All that it means is that by giving a second notice the lessor expressed an intention to treat the previous lease as subsisting provided the lessee agreed to the waiver.
24. The waiver of a notice to quit does not depend upon the election of any party but upon the consent of both. The tenancy is put an end to by a valid notice to quit and this determination of the tenancy cannot be waived without the assent of both. In Illustration (b) to the section the consent of the lessee is implied by his remaining in possession. If the first notice is waived, the third notice, which is valid, does determine the tenancy.
25. As held by Denning, J. in — ‘Lowenthals v. Van Houte’, (1947) 1 All ER 116 (N), when a notice to quit has been given, a subsequent notice to quit is of no effect unless it can be inferred from other circumstances that a new tenancy has been created after the expiry of the first notice. It was observed:
“The mere fact that the solicitor in order to obtain possession and to make it clear that there was no question about the matter, gives another notice to quit, is not any reason for inferring any agreement for a new tenancy.”
26. It was pointed out that the following proposition stated in Woodfall's Landlord and Tenant, 24th edition, page 981, viz.
“Generally speaking, giving a second notice to quit amounts to a waiver of a notice previously given.”
27. Was not supported by the decision of Lord Ellenborough, C.J in — ‘Doe d. Brierly v. Palmer’, (1812) 1 East 53 (O) on which it was based. Denning, J. observed:
“In my opinion the law is now well settled that where a tenancy is determined by a notice to quit, it is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect. A subsequent notice to quit is of no effect unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first.”
28. The learned Judge has drawn, and, if I may say so, rightly, a distinction between determination of a lease by forfeiture and determination of a lease by waiver of a notice to quit. In the later case the tenancy is determined and the subsequent notice is of no effect unless other circumstances form the basis for inferring creation of a new tenancy after the expiry of the first notice. The mere facts that the tenant continues in possession and a suit is not instituted are insufficient. Where forfeiture of a lease is incurred, the lease is voidable and can be waived by the lessor without the assent of the lessee. In the passage from the Halsbury's Laws of England, relied on by the learned Counsel, it is stated that after a notice is expired, a waiver of it can only operate by creating a new tenancy since the old tenancy is already at an end. This is really not inconsistent with the view expressed by Denning, J. In the 25th edition (1954) of Woodfall's Landlord and Tenant, this view is adopted at page 1053. It is stated:
“Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first.”
29. The appeal therefore fails and is dismissed with costs.
30. Appeal dismissed.