Report No. 70
91.11. Common feature.-
While the dichotomy based on the purpose of the lease, discussed above, leads to a difference in the duration of the lease and the period of notice, it should not obscure the fact that cases falling on either side of the dichotomy share, in the scheme of the section, one broad common feature, namely, notice for the specified period and expiring with the specified date.
The case law as the notice is legion and we shall satisfy ourselves with a discussion of those decisions which relate to important and controversial points relating to this topic. The provisions can be analysed as follows;1 In this analysis, we have not adhered to the precise wording of the section.
(i) The notice must be in writing, signed by or on behalf of the person giving it;
(ii) The notice must be sent by post to the party who is intended to be bound by it, or it must be tendered or delivered personally to such party or to one of its family or servants at his residence or, if such tender or delivery is not practicable, affixed to a conspicuous part of the property;
(iii) It must be 'a notice', that is to say, it must really indicate the intention to terminate the tenancy;
(iv) The notice must satisfy the requirement of minimum period-15 days or 6 months, as the case may be; and
(v) The notice must expire with the end of the year of the tenancy or the month of the tenancy.
1. Section 106, first para, latter-half and second para.
The requirement of writing and signature is obviously intended to record, in unimpeachable terms, the intention to terminate the tenancy.
Service of the notice is either by post or by personal delivery. Although the section is silent as delivery to agent, it seems that delivery or service of the notice through or to an agent is permissible.1
In the case of joint tenants delivery to one of them seems to be sufficient.2 Of course, the notice must be addressed to all the tenants.3
As regards the place of delivery, it must be at the residence if the delivery is to a member of the family or servant, but this does not seem to be necessary where the notice is served on the tenant himself. The notice can be delivered to the tenant personally at any place.
We need not go into various questions as to service by post, since we have had an opportunity of discussing this aspect in more than one of our earlier Reports4 dealing with cognate provisions on other Central Acts. Nor do we propose to deal in detail with what a notice ought to contain or how it should be drafted.
The more difficult questions that arise concern the period of notice and the date of its expiry.
1. ILR 22 Born 754.
2. Woman v. Khandelwal, AIR 1935 Born 245.
3. AIR Cal 752 (754) distinguished in AIR 1965 All 285.
4. Report on Evidence Act, discussion as to section 114; Report on the General Clauses Act, discussion as to section 27.
91.15. Section 106-Periodic tenancies-essence.-
First as to the scheme of the section in regard to periodic tenancies. In Queen's Club Gardens Estates Ltd. v. Bignel, (1924) 1 KB 117 (134): 1923 All ER Rep 165, Salter, J., observed:
"In the case of all periodic tenancies, whether from year to year, or from quarter to quarter, or from month to month or for any other period, the law, as I find it stated in the authorities, appears to be that the tenancy is from period to period, from one fixed date to another. It is a tenancy for so many years, or quarters, or months, or weeks, as the parties may think fit. If a new period be allowed to begin, the tenancy must, in the absence of course of any other arrangement between the parties, continue until the period ends, and neither party can, against the will of the other, put an end to the tenancy during the currency of the period."
Following this Beaumont, C.J., in the undernoted case1 observed:
"A monthly tenancy, that is, a tenancy subject to a month's notice, creates in the first instance a tenancy for two months certain. But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months' tenancy and when the fourth month begins, the tenancy becomes a four month's tenancy and so on so long as the tenancy continues, until that is to say, notice to quit is given."
A month's notice is mentioned in this passage because according to local usage in Bombay in a month's notice is necessary.2 Gentle, J., in a Calcutta case3 observed:
"A monthly tenancy in my view is not a tenancy which commence or begins in one month and on its expiry a fresh tenancy is created in the following month or months, but is a tenancy for an unstated period which is determinable by one or other of the parties giving a notice to quit."
To the like effect are the observations of the Patna High Court in Ganesdas Ramgopal v. Jamuna, 1945 ILR 24 Pat 449.
1. Utility Articles Manufacturing Co. v. Raja Bahadur Motilal Mills, AIR 1943 Born 306 (Beaumont, C.J. and Kania, J.).
3. Usharani Debi v. Research Industries Ltd., (1945) 50 CWN 461.
The period of notice provided by section 106 is six months or fifteen days. We have already recommended an extension of the period to one month1 in certain cases. Whatever the period, certain points are common. What we say below as to computation of period applies to all periods-six months or fifteen days or (if so substituted) one month.
1. See supra.
91.17. Fifteen days' notice.-
For brevity, we confine ourselves to the period of 15 days. The 15 days' notice referred to in section 106 means 15 clear days' notice. Thus, where the plaintiff served his notice on the defendants on the 16th Falgoon, and required them to quit the land on the 30th of the same month, so that the defendants had only fourteen clear days, the notice to quit was held to be bad.1 In other words, the day on which the notice is given is excluded from calculation.2 But the day on which the notice is to expire is not to be excluded.
And, therefore, a notice served on the 16th Baisakh calling on the tenant to quit on the 31st is a good notice, as it gives 15 days clear time (the 31st Baisakh not being excluded from calculation).3 The date on which the notice is received is included in computing the period of 15 days.4 In the case of a monthly tenancy according to the English calendar, the notice asking the tenant to quit by the morning of 1-10-49 was held to be valid.5
1. Subadini v. Durga Charan, ILR 28 Cal 118.
2. Cf. section 110.
3. Gobinda v. Dwarka, 19 CWN 489 (493).
4. Natho (Mt.) v. Sital Prasad Sahu, AIR 1969 Pat 310.
5. Bharat Sahu v. Gadadhar Ramanui Das, AIR 1956 Ori 128.
91.18. Recommendation as to computation of period.-
In this respect, we think that the section should be made more precise by inserting the words "clear" before the word "days" in the section and by making a change similarly designed where the expression used is in terms of month. We recommend accordingly.
91.19. So much as regards the period of the notice.
91.20. "Expiring with the end of a year or month".-
It is not sufficient that the duration of the notice should be six months or 15 days, as the case may be; it is also required that the notice should expire with the end of the year or month. Thus, if the year of a tenancy is computed from the 1st Baisakh to the end of Chaitra, a notice given on the 26th Jaistha, calling upon the tenant to quit the land on the last day of Agran is not valid (even though the duration of the notice is more than 6 months). It ought to have required the tenant to vacate on the end of Chaitra.1 So also, in the case of a monthly tenancy, the notice to quit must require the tenant to vacate at the end of the month, and not before.
Thus, if the tenancy is regulated according to the English calendar, the notice must require the tenant to vacate on the 31st January, or 28th February or 31st March and so on. A notice asking the tenant to quit before the end of the month would be invalid, as the law stands at present, even though it gives 15 days' time or even a longer time. Hence a notice given on the 1st January requiring the tenant to quit on the 20th January (or even on the 20th February) is invalid. This is so even if there is an interval of more than 15 days between the date of notice and the date of the required surrender.2
Thus, in a Calcutta case,2 a notice was given on the 9th June that the lessee should vacate the premises after the lapse of a month from that date. It was held that the notice was inoperative in law, as it did not expire at the end of a month although it was of a longer duration than 15 days. If the tenancy commences from any day in the middle of the calendar month (e.g. 10th, or 12th, or 15th), the month of the tenancy must be calculated as ending on the corresponding day of the next month.
Thus, if a monthly tenancy commences from the 6th of one month to the 5th of the next month, a notice given on the 30th June requiring the tenant to quit at the end of July is bad.3-4 But where a house was taken on three years lease but no lease-deed was executed and the house was occupied in the middle of a month and the first amount of rent paid was for the period during which the house was occupied prior to the 1st of the following calendar month, the tenancy, must be deemed to begin on the 1st of each calendar month.5
1. Hemangni v. Gubinda, ILR 29 Cal 203 (205, 206).
2. Bijay Chandra v. Howrah-Amta Rly. Co., AIR 1923 Cal 524.
3. Bengal National Bank v. Janoki, ILR 54 Cal 813: 31 CWN 973: AIR 1927 Cal 725 (730).
4. Carrara Marble etc. v. Charu Chandra Guha, AIR 1957 Cal 357.
5. Ramji Lal v. Secretary of State, AIR 1936 Oudh 306 (307): 162 IC 712.