Report No. 70
91.21. Indian calendar.-
If the tenancy is created according to the Indian calendar, the notice must be given in accordance with that calendar. Thus, in an Allahabad1 case, a house was let on a monthly tenancy, the month being calculated from the 27th of one month of to the 26th of the next month of the Hindu calendar. Notice was served on the 31st December, 1915 (11th Pous) directing the tenant to vacate on the 31st January, 1916 (12th Magh). It was held that the notice was invalid. The notice, in order to be valid, ought to have directed the tenant to vacate on the 26th day of a month, the day on which every month expired according to the terms of the tenancy. A notice to vacate on the 31st July tenancy commencing from 1st day of an English calendar month, is valid.2
1. Sheoti Bibi v. Jagannath, 18 ALJ 854: 57 IC 593.
2. Tolaram v. Ayaldas, AIR 1965 MP 140.
91.22. Range of controversy.-
The propositions called above from a few judicial decisions and the situations discussed therein show, in a fair measure, the range and frequency of the controversy raised by the requirement that the notice must expire with the end of the month of the tenancy. A few other selected cases are listed below-
Section 106-Other cases on notice:
Mangilal v. Suganchand Rathi, AIR 1965 SC 101; Lachminarayan v. Shillong General Public, AIR 1965 Ass&N 16;
Harihar Banerji v. Ramsashi Roy, 1919 ILR 46 Cal 458; Secretary of State v. Madhu Sudan Mukerji, AIR 1933 Cal 260;
Gulabchand v. Kurji Bhagwanji, AIR 1962 Guj 229; Gayaprasad v. S.C. Munilal, AIR 1962 Guj 229; Aidew Sandique v. R.R. Bharadwaj, AIR 1956 Ass 96; Avisabeevi v. Aboobacker, AIR 1971 Ker 231;
Kamalaksha v. Keshava, AIR 1972 Kar 110;
Vishnu Namjoshi v. Laxminarayan, AIR 1959 MP 293.
91.23. Calcutta case.-
The hardship caused by the present law has not gone unnoticed. In one Calcutta case,1 there was an oral agreement between the parties to the effect that the defendant would take a lease of the plaintiff's godown for a period of three years "from 1st June, 1936" on a monthly rent of Rs. 250. The defendant went into possession on 1st June, 1936, and had been in possession ever since. A written lease had been contemplated, but none was actually executed. The rents had all along been paid according to the months of the English calendar. On 13th November, 1940, the plaintiff served a notice upon the defendants to give up possession of the premises "on the expiry of 1st December, 1940".
It was held that as the lease in question could be created only by a registered instrument and as no such instrument was executed, the oral agreement for a term of three years from 1st June, 1936 must be ignored. As no time was fixed by the lease itself, there would be no question of expressing it to begin from a particular date, and hence section 110 had no application.
The tenancy was governed by section 106, being from month to month according to the English calendar by virtue of the general Clauses Act. As the defendant went into possession on the first day of a calendar month, namely, 1st June, 1936, the notice to quit should have ended with a calendar month. As the plaintiff's notice was expressed to end on the expiry of 1st December, 1940, it was invalid.
Rau, J. held:
"There is no dispute that the defendant company went into possession on the first day of the calendar month, namely, 1st June, 1936. The notice to quit should therefore have ended with a calendar month. Instead of this it was expressed to end on the expiry of 1st December. Much as I regret to have to decide the case on a technicality,2 I do not think that there is any alternative but to dismiss the appeal."
1. See para. 91.25, infra.
2. Para. 91.25, supra
91.24. Object of the requirement as to expiry.-
We need not multiply the case law, since it is common knowledge that considerable time of the courts is taken up in determining the validity of notices to quit under section 106. Whether the pleas taken are or are not successful, is not material. What is material is the fact that such pleas are taken and occupy the time of the courts. The question to be considered is whether anything could be done whereby less judicial time may be consumed in deciding such questions. This is not to say that the giving of a notice is to be regarded as a formality or as a merely technical requirement that should be lightly disregarded in every case. The object of the requirement that the notice
(i) must be given; and
(ii) must expire with the year or month of the tenancy, is that each party should have at least this much certainty that
(i) if, by a particular date, such notice is not received from the other side, then the relationship is certainly to endure for the rest of the year or month, as the case may be; and
(ii) if, by a particular date, such notice is received, the tenancy will terminate on a particular date only.1
Arbitrary termination or termination on an arbitrary date is thus avoided in the case of tenancies from year to year or month to month.
1. See para. 91.25, infra.
91.25. Stability and uniformity.-
Of course, we are at the moment concerned with the second aspect-date of termination. Its object, stated in non-legal language, is to define, with certainty, from the very beginning of the tenancy, what are the permissible dates on which a tenancy would be terminated. Non-terminability on any other date is, thus, ensured. Not only does this position introduce a stability in the relationship of the particular lessor and lessee-a stability much needed in view of indefinite duration-but also it tends to introduce a uniformity in the dates of termination and commencement of tenancies of a particular class in particular areas.
The last mentioned proposition may be thus explained. Take residential tenancies. Ordinarily, such tenancies in big cities are so entered into that the month ends with the calendar month, and new tenancies commence on the first day of the calendar month. Nothing, of course, prevents a tenant from taking up vacant premises in the middle of a month, but by and large-people in residential localities in big cities change their premises on the 1st-or sometimes the 16th-of a month, computed according to the Gregorian calendar.
91.26. Uniformity how achieved.-
Now, the rule in section 106 requires that the notice must expire with the end of the month. This rule, taken with the above mentioned practice1 of changing residences on the 1st or 16th, to a large extent, ensures that premises vacant by reason of termination through notice are likely to be available for occupation on convenient dates-1st and 16th. Of course, section 106 does not enact a mandatory rule. It can be varied by contract. Also, it does not require that the parties must go by the Gregorian calendar-or for that matter, by any particular calendar at all. But it is a known fact that, by and large, in big cities the Gregorian calendar furnishes the basis.
Even this de facto practice would have been insufficient to lead to uniformity if notices were not expected to expire with the month of tenancy. A party could then give a notice on, say, 10th June, terminating the tenancy from 20th June. But notices are expected to expire with the end of January or February-though this is not a mandatory requirement, as we have already stated. The result, then, is that the end of each month according to the Gregorian calendar becomes the usual date for termination of a number of residential tenancies in big cities, ultimately leading to the uniformity to which we referred above.2
1. Para. 91.25, supra.
2. Para. 91.24, supra.
In the light of the position stated above, we recommend that the relevant portion of section 106 should be amended so that a notice which is otherwise valid should not be rendered void by reason of a defect in the date of its expiry.1
1. For draft, see para. 91.43 infra.
It should be noted that in the U.P., two amendments have been made in section 106.1 The words "expiring with the end of a year of the tenancy" and the words "expiring with the end of a month of the tenancy" having been deleted. Further, for the words "15 days' notice", the words "30 days' notice" have been substituted.
1. U.P. Act 24 of 1954.
91.29. Meaning of 'month' and year.-
It is to be noted that the expression 'month' occurring in section 106 has not been defined in the section. If taken according to the definition in the General Clauses Act, this expression would mean the month according to the Gregorian Calendar. Of course, there may be circumstances in the tenancy document or otherwise indicating the system of calendar which is intended, or there may be something in the local usage. The same discussion applies to the expression 'year'.
On the basis of sections 3(35) and 3(66) of the General clauses Act, 1897 which apply to the Transfer of Property Act, by reason of section 4 of that Act, the expressions "year to year", "month to month", "six months' notice", "year of tenancy" and "month of tenancy" should, in the absence of a contract or local usage to the contrary, be construed according to the Gregorian calendar.1 Of course, implied or express contract or local law or usage often furnishes a different test. This particularly so where the tenancy commences according to Hindu calendar.2 But it would appear that the onus of proving the contrary lies on the party so asserting:3
1. (1955) 59 CWN 1150 (1156), following AIR 1944 Cal 84 (86).
2. AIR 1963 SC 120 (127).
3. (1966) 1 Mad 14 71 (74).
91.30. Change suggested not likely to impair uniformity or cause injustice.-
We have discussed these aspects in some detail in order to give an indication that if the twin objectives of the present law-stability and uniformity-can be preserved in substance, it is permissible to devise amendments that will dispense with needless controversies as to defects in regard to the date of expiry of notices.
To anticipate what we are going to recommend,1 we may state that a possible amendment could be to the effect that if a notice does not expire with the end of the year, or month, but expire on any other date, is shall, if otherwise valid, be taken as expiring on the end of the year or month of tenancy in which it is given. To take an illustration, a tenancy is expressed to commence on the 1st of the month (not 'from' the 1st), according to the Gregorian calendar. The notice is given on, say, the 10th January so as to expire on the 26th January.
Under the present law, it is totally void since it does not expire with the end of the month. Under the proposed amendment, it will expire with the midnight of the 31st January and will be valid on that basis. Such an amendments, maintains the twin objectives of the present law, and also does substantial justice to the parties, because it allows the party receiving the notice the minimum time that he might require for making alternative arrangements. At the same time, it prevents the notice from being totally invalidated by reason of defects which should be of no consequence for the recipient.
1. See para. 91.43, infra.