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Report No. 70

Chapter 98

Waiver of Notice

Section 113

98.1. Section 113-Waiver of notice to quit.-

The next case of waiver is dealt with in section 113. Notice to quit may be waived under the section which reads-

"113. A notice given under section 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.

Illustrations

(a) 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.

(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived."

98.2. Recommendation as to statutory tenancies under Rent Acts.-

In connection with this section, it is to be noted that where Rent Acts are in force, the acceptance of the "rent" may be attributable to the statutory tenancies created by such Acts,1 and not to an intention, to waive the notice. It is desirable that section 113 should be modified to leave scope for excluding such cases, by adding an Explanation worded suitably.

1. Panchanan Ghase v. Haridas, (1954) 58 CWN 438;

Mahadeo Prasad v. Sulekha, AIR 1954 Cal 404;

Pulin Behary v. Lila Dey, AIR 1957 Cal 627;

Narayana lyengar v. Subba Rao, AIR 1958 Mys 113;

Jagannath v. Sayed Abdul, AIR 1962 Ass 148;

Bhagwatisinghji v. Keshulal, AIR 1963 Raj 113;

Bhagat Ram v. Keshab Deo, AIR 1965 Ass 55.

And see Ganga Dutt Murarka v. Kartik Chandra Das, (1961) 3 SCR 813: AIR 1961 SC 1067.

98.3. Recommendation.-

In order to avoid misunderstanding and unnecessary continuance of the controversy in future, we recommend that the following Explanation should be added to section 113

"Explanation.-The acceptance by the lessor of rent which has become due in respect of the property since the expiration of the notice does not amount to waiver of the notice, where such acceptance can be attributed to the fact that the lessee has, under any law relating to the control of rents and protection of tenants against eviction, a right to continue in possession notwithstanding the giving of the notice."



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