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Report No. 181

The controversy arises in respect of the words underlined.

It will be seen that for the purpose of termination of a lease from year to year, a notice has to be issued by the lessor or the lessee, six months in advance "expiring with the end of a year of the tenancy" In the case of a tenancy from month to month, the lessor or the lessee has to terminate the tenancy by issuing a fifteen days' notice "expiring with the end of a month of the tenancy." It is these words that have led to unnecessary litigation. In several cases, it happens that a lessor or a lessee gives a 15 days notice, in the case of a tenancy from month to month, terminating the tenancy.

Pleas in defence are taken that the notice is defective in the sense that the period of notice falls short by one day, because the person who has given the notice has not taken into account the principle accepted in Mangilal v. Sugan Chand, AIR 1965 SC 101 that the day on which the notice is served must be excluded though not the day on which the tenancy is sought to be terminated. An issue as to validity of notice is framed 6 invariably in every case. Years after the notice and the filing of the suit, the court would be compelled to declare the notice invalid, though the defendant had more than the prescribed time of six months or fifteen days by the date of filing of the suit or by the date of judgment dismissing the suit.

In some other cases, there may be a dispute as to the exact date of commencement of tenancy and therefore a further dispute arises as to the date of expiry of the tenancy. The matter will be put in issue and if the date assumed or pleaded by the plaintiff, whether he is the lessor or lessee is not accepted by the court, then the notice becomes invalid, though the defendant had, in fact, more than the prescribed time by the date of filing of the suit or by the date of the judgment.

We shall refer to an example. A tenancy was from month to month and started on the 1st of Jan., 2000, notice terminating the tenancy was issued on 31.12.1999 and served on 1.1.2000 and the notice stated that the tenancy would stand terminated w.e.f. 15.1.2000. If the day on which the notice was served namely, 1.1.2000 has to be excluded as per the judgment of the Supreme Court in Mangilal v. Sugan Chand, AIR 1965 SC 101, the notice would be short by one day.

The suit may have been filed (say) on 1.7.2001 for eviction and let us assume that the defendant raised a plea that the notice was deficient by one day. The suit might (say) go to trial and let us assume that it is dismissed in April, 2002. Even though between 31.12.1999 and 1.7.2001 or in fact, by April 2002, the lessee had several months of time at his disposal to move out, the suit is liable to be dismissed as the law stands today. The lessor, in such circumstances, 7 would have to file a fresh suit after 15.4.2002, giving fresh notice under section 106 once again.

A similar situation obtains if the lessor has pleaded a particular date of commencement of tenancy and the lessee pleaded another and the lessee's plea was accepted. This technicality has been leading to too much of an injustice to the plaintiff though no prejudice at all is caused to the defendant. Such questions can arise even in suits filed by a lessee against the lessor.

The purpose of the provision in section 106 is to terminate the relationship of lessor and lessee before the lessor sues for possession. He has no right of entry till the tenancy is disrupted. Further, the idea is that every lessee must have some reasonable notice before he is asked to vacate the premises. If these were the purposes behind section 106 but in fact, the lessee had, by the date of suit or the date of dismissal of suit years later, more than the period specified, in the statute, it is nothing but injustice to the lessor if he is compelled to file a fresh suit. Any procedure that leads to multiplicity of court cases must be avoided.

Though the Privy Council decided that notice may be for a longer period (see Benoy Krishna Das v. Salscicioni, AIR 1932 PC 279), it has also decided in another case that "where a notice falls short of the requisite period, the mere fact that the tenant is actually allowed to hold the property for the full length of the period for which notice ought to have been given and a suit for ejectment against him is brought only afterwards, will not8 cure the defect in the notice so as to make it effectual for the purpose of terminating the tenancy" (see Gooderham & Worts Ltd. v. Canadian Broadcasting Corpn. AIR 1949 PC 90.

In Dattonpant v. Vithalrao AIR 1975 SC 1111 the facts were as follows: the notice was served on the tenant on 21.11.1968 purporting to terminate the tenancy by the 8th December, 1968 treating the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. It was held that the notice did not expire with the end of the month of tenancy. The end of the month of the tenancy was the 9th day and not the 8th day. Thus it was held that there was no valid and legal termination of the contractual tenancy.

Similarly, the Supreme Court of India in Maya Chanda & others v. Krishnan Lal Dey & Anr.1969(II) SCWR 478 has decidedthat a notice which does not expire at the end of a year or a month of the tenancy will be invalid. The above decision does not specifically refer to section 106 but it is obvious that the Court was having section 106 in mind when it declared the notice invalid.

Realising that this method of interpretation was leading to injustice compelling the lessors to file fresh suits after several years have lapsed and after giving a fresh notice, the UP legislature had, by UP Act 24 of 1954, omitted 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". It had also increased the period of notice of 15 days in the case of monthly tenancies to 30 days. This was w.e.f. 30.11.54.



Amendment to Section 106 of the Transfer of Property Act, 1882 Back




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