Report No. 70
91.31. Other defects not saved.-
The amendment, as already stated, postulates that the notice is otherwise valid. For example, a notice given on the 17th of the month to expire on the 30th of January would not be saved by the proposed amendment, as it does not give 15 clear days either with reference to the stated date of expiry (30th) or with reference to the substituted date of expiry under the amendment (31st January).
91.32. Effect of proposed amendment period.-
Here a question of detail may be considered. If the notice allows a period which does not amount to (clear) 15 days (or clear six months), according to the date of expiry mentioned therein, but which amounts to (clear) 15 days (or clear six months) if the date is substituted under the proposed amendment, should it be treated as valid? We think that it should be treated as valid, since the considerations that apply where the interval1 allowed is valid according to the stated date, apply in this case also, and the deficiency in the interval makes no material differences to the recipient of the notice. The twin objectives,2 of stability and uniformity are preserved and in other respects also there is no injustice to the recipient3 of the notice.
The failure of the giver of the notice to allow clear 15 days' interval causes no prejudice, once the effect of the amendment is to substitute the required interval. In other words, both as regards the interval (period of notice) and as regards the point of termination (date of expiry), the recommended amendment has the effect of allowing the recipient the required interval and point of termination.
The amendment thus carries out the policy of the present law and the recipient should have no cause to complain. Once the amended date is substituted, his interests are not affected. Of course, he will not have the right to complain of invalidity which he has at present. But that is the very object of the amendment, which is based on the reasoning (already elaborated)4 that there is no reason why he should have such a right.
1. Para. 91.25, supra.
2. Para. 91.30, supra.
3. Para. 91.25, supra.
4. Para. 91.30, supra.
91.33. Recommendation as to section 106.-
Having regard to these considerations, we recommend1 that the relevant portion of section 106 should be revised so as to incorporate the following propositions:-
(i) where the period given in the notice does not expire with the year or month of the tenancy, but expires on any other date, it shall be deemed to expire with the end of the year or month of2 the tenancy in which it would otherwise expire,
(ii) If the period stated in the notice does not amount to the requisite period-at least 15 days or 6 months-but amounts thereto after substituting the date as per proposition (i) above, the notice shall not be invalid merely by reason of deficiency in the period,3
(iii) Nothing in this amendment shall cure defects4 in the notice except those cured by propositions (i) and (ii) above.
1. This is not a draft.
2. Para. 91.25, supra.
3. Para. 91.27, supra.
4. Para. 91.26, supra.
91.34. Notices with alternative.-
We should now discuss the question notices offering alternatives to the person receiving them. Sometimes a notice may offer an alternative to the recipient of enhanced rent. It was held in an earlier case1 of the Allahabad High Court that a notice to quit must not be coupled with a demand for enhanced rent from the tenant. A notice in these terms "If you do not quit within a month from this, I will sue you for rent at an enhanced rate" was held to be a conditional one, and therefore not a valid notice to quit. Subsequent cases, however, take a different view, as will be seen later.2
1. Bradley v. Atkinson, ILR 7 All 899 (FB).
2. Para. 91.36, infra.
91.35. English law.-
In England, a notice otherwise sufficient, is not rendered insufficient by its being accompanied with something else, and therefore, where the lessor gave the lessee notice in writing to quit upon a specified day and then went on to say, "and I hereby further give you a notice that should you retain possession of premises after the day before mentioned, the annual rent of premises now held by you be £150," it was held that the explicit first portion of the notice was not impaired, or rendered nugatory, by the alternative given by the second portion of continuing to hold the premises at an increased rent.
91.36. Later cases.-
We have referred above to the earlier Allahabad case.1 In a later case, the Allahabad High Court has laid2 down that a notice to quit with a condition super added for the enhancement of rent on failure to quit in accordance with the notice, is good enough to terminate the tenancy, and is not to be treated as a mere offer of a new tenancy at a higher rent. The landlord is therefore entitled to a decree for ejectment.
1. Para. 91.34, supra.
2. Shankar lid v. Babu Ram, ILR 43 All 330 (332) (following Athearn v. Bellman, supra). See also Sahir Hussain v. Sirajul Hag, AIR 1951 All 853. The Bombay High Court has also taken this later view in Vaman v. .1(handerao, AIR 1935 Born 247.
91.37. The Patna High Court has1-2 held that a notice of ejectment is quite distinct from a notice of enhancement; in the former case the lease is determined by the notice and thereafter the lessee becomes a trespasser. If, in the notice, an alternative course enhancing the rent from the date mentioned in, it is proposed alongwith the date on which the defendant is required to vacate the premises, the continuance of the tenant to hold over implies an acceptance of the term proposed. This judgment by implication holds that both parts of the notice are legally valid.
1. Farzand All v. Motilal, 2 PIT 282: 62 IC 421 (422).
See also Madan Mohan v. Ram LA AIR 1934 All 115 (117), where the same view has been taken.
2. For a contrary view, see Md. Naar v. Ashik Beg, AIR 1933 Oudh 465.
91.38. Recent cases.-
According to some recent Allahabad cases,1 a demand for arrears of rent and termination of the tenancy can be made by the same notice. But one of them holds that a notice asking the tenant to pay rent by the end of a particular month and also to vacate on the expiry of the period of the notice, if preceded by a number of notices demanding rent, cannot be treated as a notice to quit,2 since the earlier notices merely demanded rent. According to a Kerala case,3 a notice to quit with a demand for enhanced rent if the tenant stays is not sufficient to terminate the tenancy, because it amounts to an offer of a fresh tenancy.
1. Mushtak Hussain v. Mahomad Saddiq, 1967 All LJ 764.
2. Sunder Lal v. Ram Kishan, AIR 1960 All 544.
3. Mohammad Nineave v. Neelachandan, AIR 1960 Ker 216.
91.39. Recommendation as to notice with alternative.-
It appears to us that the law should be clarified by providing that a notice offering an alternative does not cease to be a notice to quite merely on that ground. The same should apply to a notice coupled with a demand for rent.
91.40. Recommendation as to structural arrangement into sub-sections.-
Apart from the amendment of substance that we have recommended in section 106, we must state that the section is badly in need of structural improvement-at least by arrangement into sub-sections. We have already stated1 that the present structure of the section obscures the number of propositions enacted in the section. To facilitate understanding of the section, it is absolutely necessary that it should appear in proper form.
1. Paras. 91.1 to 91.3, supra.
In concluding this Chapter, we may stated that section 106 is one which is most often restored to by laymen-both landlords and tenants-and often competent legal advice is not available. It is not only necessary that the law should be just in its, content-and we would say that there is no justice where mere technicalities serving no higher purpose have the final word-but it is also necessary that the law should be easy of understanding and application. Its format should facilitate and not obstruct, understanding.
The Transfer of Property Act is an important measure. In that Act the Chapter on leases is very important. Section 106, of all sections in the Chapter, is of the most frequent application. And the paragraph relating to notice raises questions which are the most numerous as well as the most difficult. Our recommendations should be viewed in that light, and we hope that they will receive ready acceptance.
91.42. Provision in the lease for notice.-
It would appear that there is a conflict of decisions on the question whether, where the contract of lease provides a period for notice, the requirement as to expiry at the end of the month of tenancy is to be complied with. The majority view is to the contrary. But the High Courts of Bombay, Saurashtra and Lahore hold that the section still applies. The case law is reviewed in a recent judgment of the Delhi High Court.1 We think that it is desirable to give effect to the Minority view by an express amendment, which we recommend.2 The minority view is in harmony with the objectives which we have discussed-stability and certainty.
1. Harbhajan Singh v. P.N. Chopra, AIR 1977 (Notes of cases) 161; (1977) Rent Control Reporter 266 (Del) (Reviews case law) (Yogeshwar Dayal, J.).
2. Para. 91.43, infra.
91.43. Redraft of section 106.-
The following rough draft of revised section 106 is recommended in the light of the above discussion:
"106.(1) In the absence of a contract or local law or usage to the contrary-
(a) a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy;
(b) a lease of immovable property for purposes of office, business or profession shall be deemed to be a lease from quarter to quarter, terminable, on the part of either lessor or lessee, by one month's notice expiring with the end of a quarter of the end of a quarter of the tenancy;
(c) a lease of immovable property for any other purpose, not being a lease for the purposes of building, shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
(2) In the absence of a contract or local law or usage to the contrary, a lease for the purposes of building shall be deemed to be a lease for the period for which the buildings are to stand on the land or if the period for which the buildings are to stand cannot be ascertained with reasonable certainty, ninety-nine years.
(3) Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
(4) Where a notice under this section is so worded as to expire before the end of the year, quarter or month of the tenancy, as the case may be, it shall instead be deemed to expire with the end of that year, quarter or month of tenancy, and for the purpose of determining its validity for the purpose of this section, the date on which the year, quarter or month ends, shall be deemed to be substituted for the date on which it would have expired but for the provisions of this section.
(5) A notice otherwise valid shall not be invalid merely because it offers an alternative to the person receiving it, or because it is coupled with a deemed for arrears of rent.
(6) Where the leave provides for termination by notice and specifies a period, the provisions of this section shall, in the absence of a contract or local law or usage to the contrary, nevertheless apply as to the date of its expiry and other matters.
Explanation-In computing the period of notice for the purpose of this section, the day on which it is sent, tendered, delivered or affixed, as the case may be, shall be excluded".
The amendment recommended in section 106 as to building leases is subject to dissent by two of us.1