Questions and answer on law part 10

Q. Whether accused who has undergone imprisonment as undertrial can be granted set off if he is convicted and sentenced to rigorous imprisonment by court?

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Whether it can be inferred that new tenancy is created if second quit notice is issued?

 In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.

26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:

"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."

27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.

28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.

29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.

30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.

31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 564 of 2011

Decided On: 22.11.2018

Praveen Kumar Jain Vs.  Jagdish Prasad Gupta and Ors.

Hon'ble Judges/Coram:

Sangeeta Chandra, J.

Citation:  2019 (132) ALR 357

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Whether tenancy is deemed to have been terminated if suit for eviction is filed?

In fact, though termination of tenancy is required to be done by issuing a notice under Section 106 of the Transfer of Property Act 1882, yet the filing of a suit has been treated as a notice terminating tenancy in terms of the judgment in the case of M/s. Jeevan Diesels & Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) & Anr., MANU/DE/1277/2011; 2011 (182) DLT 402 and this judgment relies upon the ratio of the earlier judgment of the Hon'ble Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), MANU/SC/8184/2007 : (2008) 2 SCC 728.

IN THE HIGH COURT OF DELHI

RFA No. 945/2018

Decided On: 07.12.2018

 Ramesh Chander Sethi  Vs. Shashi Grover

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Golden rules for interpretation of quit notice

 The Hon'ble Apex Court has also, in the case of Bhagabandas Agarwalla v. Bhagwandas Kanu and Ors., MANU/SC/0269/1977 : (1977) 2 SCC 646, already held that,

"It is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. The validity of a notice to quit, ought not to turn on the splitting of a straw. It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pedantism or over-refined subtlety, but it must be construed in a common sense way."

22. In this reported authority also, the notice issued under Section 106 of the Transfer of Property Act, 1882, was challenged on the ground that, under the said Section, the notice to quit must expire at the end of the month of the tenancy, or, in other words, at the most, terminate the tenancy with effect from the expiration of the month of the tenancy. It was argued that, the notice to quit issued in the case required the Respondent to vacate the premises within the month of October, 1962 and intimated to him that otherwise he would be "treated as tress-passer from November 1, 1962", in respect of the premises. The question raised before the Apex Court was, therefore, 'what is the meaning and effect of the words "within the month of October 1962" in the context in which they are used in the notice to quit?'; 'Would these words mean that, the tenancy of the Respondent was sought to be terminated at the date earlier of the expiration of the month of October, 1962 and the Respondent is required to vacate the premises before such expiration?' While answering this question, the Apex Court held that,

"When the notice to quit requires the Respondent to vacate the premises within the month of October 1962, what it meant was that, Respondent could vacate any time within the month of October, 1962, but not later than the expiration of that month."

23. The last moment upto which the Respondent could, according to the notice to quit, lawfully continue to remain in possession of the suit premises was the mid-night of October 31, 1962 and hence, the Apex Court held that, it fails to see any difference between a notice asking the tenant to vacate within the month of October 1962 and a notice requiring a tenant to vacate latest by mid-night of October 31, 1962. Because, in both the cases, tenant would be entitled to occupy the premises upto the expiration of October 31, 1962, but not beyond it. Thus, it was held that, the notice makes an intention of the authors of the notice clear that they are terminating the notice only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month and hence, the notice was legal and valid. It was held that, the 'notice to quit' is required to be judged for its validity, in the light of the well recognized principles of law.

24. Here in the case also, what the 'Agreement of Leave and License' provides is, "a one week's previous notice" in writing and the termination notice issued in this case calls upon the Respondents to handover peaceful and vacant possession of the suit premises "within 7 days from the date of receipt of the notice". Therefore, it necessarily follows that the Respondents were given clear one week's previous notice and they were called upon to handover vacant possession of the suit premises within 7 days from the receipt of the notice, meaning thereby, till the expiry of 7 days, they were entitled to remain in possession thereof. The day for them to vacate the possession of the suit premises arises only after expiration of 7 days and, accordingly, their license stands terminated only on the expiry of 7 days period and not before it. Therefore, in no way, such notice can be called as illegal or unlawful.

25. As a matter of fact, interpreting this notice in such a manner by holding that, it does not give a clear 7 days previous notice, is reading it in a very hyper-critical manner and not in a common sense way. As observed by the Apex Court here-in-above, the Appellate Court has construed it in this fashion only with a desire to find faults in it, so as to render it defective; whereas, the object must be to give it a meaningful interpretation, which is to be appealable to the common sense and should not revolt against the common sense. The Appellate Court has thus read it in a hyper-critical manner, which can be called, in the words of the Apex Court, as "splitting of the straw".

26. Surprisingly, no such contention that 'notice of termination' is not legal or valid was taken up by the Respondents also, either in their reply to the notice or even before the Estate Officer; presumably because, being persons of common sense, they also understood it in its correct perspective as giving them one week's previous notice in writing. It is disturbing that, the Appellate Court has entered into hair-splitting it, just to overturn the eviction order passed by the Estate Officer, despite negativing all other contentions raised by the Respondents to challenge the said order. The interpretation of any law or even of any notice has to be in tune with the understanding and perception of the common man and not bereft of it. Over-stretching the words and giving it an absurd meaning, which is not contemplated or which is not expected by the person, who is giving the notice or receiving the same, cannot be considered legal or proper. Therefore, this finding of the Appellate Court, being against the tenets established by law, has to be held as 'perverse' and required to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4905 of 2009

Decided On: 27.04.2018

The Municipal Corporation of Greater Mumbai Vs. Suhas Shridhar Rane and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(5) MHLJ 504

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Whether issuance of notice terminating tenancy can be proved even if office copy of notice is not proved?

The learned counsel for Petitioner has vehemently submitted that in the pending proceedings before the Additional Tahsildar, the Petitioner had filed an application seeking directions to the non-applicant deceased Maruti to produce on record the original notice issued by the Petitioner for termination of tenancy and despite the order passed by the Additional Tahsildar, the non-applicant deceased Maruti had failed to produce the said notice on record. The learned counsel submits that the said order came to be confirmed even by the Tribunal when challenged by the non-applicant during the pendency of the said proceedings before the Additional Tahsildar. The learned counsel submits that therefore, the Additional Tahsildar has rightly placed reliance on the postal acknowledgment receipt produced on record. I do not find any substance in these submissions for the reason that, if such notice is not produced despite the directions given, the Petitioner was at liberty to lead secondary evidence to prove the contents of the notice by placing on record the office copy of the notice. Mere production of postal acknowledgment receipt on record cannot be construed as a due compliance of Section 19(2) first proviso. It was essential for the Petitioner to establish that six months notice in writing given to the tenant for termination of tenancy and also to prove the grounds of such termination as incorporated in the said notice.

13. In the case of Samba Motiram Alone v. Tukaram Mahadeo Chandakar (supra) relied upon by the learned counsel for Respondent, in paragraphs 12, 13 and 14 of the order, this Court has made the following observations:

"12. Mr. Ghate for the respondent contended that this was a new point being taken up now in the petition. No objection to the validity of the notices had been raised by the petitioner in the trial Court. It is true, in the trial Court, no such contention was taken. The validity of the notice as a proper notice terminating the tenancy, was the very basis on which the Tahsildar could not under section 28(1) of the Tenancy Act, and, therefore, it was for the Tahsildar to decide, irrespective of whether an objection was taken or not by the tenant, whether the tenancy had been properly terminated on a valid notice. As observed earlier, the Naib Tahsildar, Rajura did actually notice this point and he did hold that the notices were not valid and the tenancies were not properly terminated, though he again committed an error by passing a conditional order of possession. From the revision petition of the petitioner to the Revenue Tribunal, it does appear that this ground was specifically taken as ground No. (iv) in the said revision application to the Maharashtra Revenue Tribunal, but it appears the Revenue Tribunal has not taken cognizance of this point. This ground has also been specifically taken in the present petition as ground No. (iv). In fact a proper termination of the tenancy by a proper notice under section 19(2)(a)(i) of the Tenancy Act, read with the proviso below section 19(2) of the Tenancy Act would be the very basis of an action under section 28(1) of the Tenancy Act and an invalidity of such a notice would go to the rood of the whole matter and can be considered properly even in a writ petition.

13. Mr. Ghate then contended that if the notices were held to be not valid notices terminating the tenancies of the petitioner, then the case should be remanded to the trial Court. It was urged that no explanation in this respect had been got from the respondent-landlord in the trial Court, because no objections to the validity of the notices were taken in the trial Court. If this question is to be enquired into, Mr. Ghate contends that it would be necessary to get the explanation of the respondent landlord as to what he meant by saying in the notices that legal proceedings would be taken against the tenant. Therefore, Mr. Ghate requested that in that case would be necessary to remand the case to the trial Court. It is not possible to even accept this contention of Mr. Ghate. The validity of the notices terminating the tenancy has to be determined by the Court upon a proper construction of the recitals of the notices themselves, and not upon the particular manner in which the landlord chooses to interpret those recitals.

14. In the view taken by me, this writ petition will have to be allowed. The orders passed by all the Revenue Courts below are hereby quashed and instead it shall be ordered that the application of the landlord-respondent for possession filed in the Court of the Tahsildar, Rajura under section 28 read with section 19 of the Tenancy Act, shall stand rejected. The rule is made absolute with costs."

14. In the instant case, even the draft or office copy of the notice is not produced on record leave apart the grounds incorporated therein in compliance with the provisions of Section 19(2) of the Tenancy Act, 1950. The learned Member or the Tribunal has therefore, rightly held that non-compliance of the provisions of Section 19(2) of the Tenancy Act, 1950 is fatal.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1743 of 1993

Decided On: 22.12.2017

Dattatraya  Vs. Maruti and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2018(4) MHLJ 41

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Whether one trustee can validly issue quit notice to tenant?

The issue in that case was whether one co-trustee could determine a tenancy. The Court said he could not, but held: (AIR p. 116, para 8)

"But when we say that the tenancy must be determined by all co-trustees, we must make it clear that what we mean is that the decision to terminate the tenancy must be taken by all the co-trustees. The formal act of giving notice to quit pursuant to the decision taken by all the co-trustees may be performed by one co-trustee on behalf of the rest. The notice to quit given in such a case would be a notice given with the sanction and approval of all the co-trustees and would be clearly a notice given by all co-trustees."

Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly."

18. As can be seen from the aforesaid decision, the Supreme Court has clearly held that although as a rule the trustees must execute the duties and functions of their office jointly, this general principle is subject to exceptions as more particularly set out in paragraph 29. The first exception is when the Trust Deed allows the Trust to be executed by one or more or by a majority of trustees. The second exception is when there is an express sanction or approval of the act by the co-trustees.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 730 of 2014 and Civil Application No. 346 of 2014 in Civil Revision Application No. 730 of 2014

Decided On: 29.06.2017

 Life Insurance Corporation of India Vs. Digvijaysingh Gangasingh and Ors.

Hon'ble Judges/Coram:

B.P. Colabawalla, J.

Citation: 2018(1) MHLJ 259

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Whether landlord can seek eviction of tenant on basis of arrears of rent if arrears of rent are paid in accordance with notice?

It has to be pointed out that when the tenant pays the entire amount demanded by the notice under Section 12(2), the notice becomes ineffective and in case the landlord wants to claim possession on the ground of arrears of rent for the period other than that in respect of which the notice has been given, the provisions of Section 12(2) will once again come into operation and the landlord will have to serve a fresh notice because the arrears for non-payment of which possession is now claimed are not arrears in respect of which a notice contemplated by Section 12(2) had been earlier given. Service of a notice under Section 12(2) is a condition precedent to a claim for possession on the ground of arrears of rent and such a claim cannot be made unless a period of one month is allowed to expire from the date of service of the notice. We are, therefore, unable to agree with the view of the learned Judge that there is no extinction of cause of action by reason of the payment of existing arrears demanded by the notice under Section 12(2).

IN THE HIGH COURT OF BOMBAY

Spl. C.A. No. 2922 of 1978

Decided On: 30.01.1984

Decided On: 01.02.1984

 Narhar Damodar Wani Vs. Narmadabai T. Nave

Hon'ble Judges/Coram:

M.N. Chandurkar, C.J. and R.A. Jahagirdar, J.

Citation: 1984 Mh.LJ 313 

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When tenant is liable to be evicted on ground of non payment of arrears of rent?

A further indisputable position has emerged that after institution of the suit for eviction by the plaintiff, the defendant had faltered in complying with mandatory prescription stipulated under section 15 (3) of the Maharashtra Rent Control Act making deposit of arrears of rent along with interest within the period of ninety days from the date of service of suit summons and the arrears of rent were deposited with fifty three days delay, without interest @ 15% as required. Judgment in the case of "Vinayak Narayan Deshpande" (Supra) relied upon on behalf of the applicant, in paragraph No. 14 makes reference to that if the tenant chooses not to pay arrears of rent as required under section 15 (3) of the Maharashtra Rent Control Act, the landlord cannot be denied a decree for ejectment on the ground of default in making payment of rent, if he proves that the tenant is in arrears of rent.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 113 of 2016

Decided On: 23.03.2017

 Shila Ramchandra Sachdeva Vs. Vinod Harchamal Santani

Hon'ble Judges/Coram:
S.P. Deshmukh, J.

Citation: 2017(6) MHLJ 396

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Whether subletting by tenant should continue till filing of suit for eviction of tenant?

So far as the first point is concerned, Mr. Desai laid great stress, and relied very heavily, on the grammatical meaning of the words 'has sub-let'. His argument is that the meaning of the words 'has sub-let' include the element that the subletting must be continuing on the date when the plaintiff filed his suit. He stated, and there is no dispute on the point, that the words 'has sub-let' do not use of the verb 'sub- let' in the present perfect tense. He referred to page 61 of the Handbook of English Grammar by R.W. Zandvoort. In paragraph 140 of this Book it is stated that when a verb is used in present perfect tense, it denotes "a completed past action connected, through its result, with the present moment". The argument of Mr. Desai was that the subletting which started sometime after 1951, that is after the Act came into operation, must be connected with the present moment through its result; and his argument was that once the sub-tenancy was created, it must be connected with the present moment-the date of filing the suit-by its result by the sub-tenant continuing in possession of the premises upto that date. Mr. Desai thus urged before us that unless a sub-tenant were in possession of the property sublet on the date of the suit it cannot be said that the tenant 'has sub-let' the premises, even though a sub-tenancy was in fact created by the tenant. In our opinion if this interpretation were to be accepted, the result would be that a tenant can with impunity put some other person in possession of the premises as a sub- tenant and avoid an order for delivery of possession against him by seeing to it that the sub-tenant departs from the property before the plaintiff files a suit. Having regard to the scheme of the Rent Control Act, particularly the scheme of Sections 12 and 13 of the Act and the context in which the words 'has sub- let' are used, it appears to us that that is not the way in which the meaning of the words 'has sub-let' should be gathered. If the Rent Control Act were not in force and the parties were left to their ordinary rights under the Transfer of Property Act, the landlord will have a vested right to recover possession in him as soon as he terminates the tenancy of the tenant in the manner provided in the Transfer of Property Act. After terminating the tenancy he can immediately call upon the tenant to hand over possession to him. By enacting Section 12 of the Rent Control Act, the landlord's right to terminate the tenancy is not affected, but the enforcement of his right to recover possession immediately thereafter from the tenant is affected. The provisions of Section 12 prevent a landlord from recovering possession of the property from a tenant even after a lawful termination of his tenancy, provided the tenant fulfils the conditions mentioned in Section 12. Section 12 does not take away the right of the landlord to recover possession of the premises but merely postpones the enforcement of this right of the landlord so long as the tenant fulfils the conditions laid down in that section. Having put this impediment in the enforcement of the right of possession of the landlord or in other words, having clothed the tenant with an immunity from dispossession, the Legislature proceeds in Section 13 to lay down those conditions on the fulfillment of which the landlord is entitled to recover possession of the premises from the tenant. Section 13, therefore, provides for those contingencies on proof of which the tenant loses the immunity from dispossession under Section 12. Some discussion took place on the question whether the tenant has a right of possession or whether he has merely an immunity from being dispossessed. Whether it be called an immunity from dispossession or whether it be called a personal right of possession, the fact remains that by Section 13, the Legislature has provided for dispossession of tenant, despite provisions of Section 12, if the Court is satisfied that any one of the grounds mentioned in Section 13 does exist. One of such grounds is the subletting of the premises or a part thereof by the tenant. In view of this scheme of the provisions in Sections 12 and 13 of the Act, it is necessary for us to construe the meaning of the words 'has sub-let' keeping in mind that the verb 'sub-let' is used in the present perfect tense. First, it must be a completed past action, that is the subletting must be completed. A subletting is complete as soon as the sub-tenant is put in possession of the premises given to him on sublease. Now, this completed act of subletting must have a result. What would be that result in the context of Sections 12 and 13 of the Act? The result of subletting would be removal of the impediment in the way of the landlord to recover possession of the premises. In other words, the result of subletting would be to take away that personal right of possession which the tenant enjoyed under the provisions of the Rent Act. Now, this result must be connected with the present moment. The present moment will be the moment when the suit is filed. How is this result connected with the filing of the suit? The answer is quite obvious. It is this removal of the impediment in the way of the landlord's recovery of possession which induces him to go forthwith to the Court and file a suit for possession. Therefore, the words 'has sub-let' mean that a sub-letting has taken place and as a result of that subletting the impediment in the way of the landlord to recover possession has been removed, thus, inducing him to go to Court and ask for recovery of possession. It is the result of the completed act, i.e. the removal of the impediment in his way, which permits the landlord to go to the Court and ask for a decree for possession. It is not necessary, therefore, that subletting must continue enough if the premises have been sub-let sometime after the coming into operation of the Act. The provisions of Section 15 of the Saurashtra Rent Control Act make subletting unlawful. Therefore, any subletting by the tenant after the Act came into operation immediately removes the impediment in the way of the landlord to recover possession and entitles him immediately to go to the Court and ask for recovery of possession. In order to convey the correct meaning of the words 'has sub-let' it is not necessary to show that the subletting was in existence on the date of suit. It is enough that the subletting has taken place sometime after the Act came into operation; it does not matter that the subletting came to an end before the landlord gave notice or before the landlord filed a suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2805 of 2005

Decided On: 05.10.2007

Carona Ltd. Vs. Parvathy Swaminathan and Sons

Hon'ble Judges/Coram:

C.K. Thakker and P. Sathasivam, JJ.

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Whether tenant is liable to be evicted if he has subletted tenanted premises on the date of eviction notice?

The appellant repeated the same contentions which had been advanced before the High Court. The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of Section 13(1)(e), namely, that he has sublet. The language is that if the tenant as sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub tenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted. The High Court rightly rejected the revision petition.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 591 of 1974

Decided On: 29.08.1975

Gajanan Dattatraya Vs.Sherbanu Hosang Patel and Ors.

Hon'ble Judges/Coram:
A.N. Ray, C.J., K.K. Mathew and Y.V. Chandrachud, JJ.
 Citations: 1975 AIR 2156, 1976 SCR (1) 535

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Whether is basic concept of royalty as per privy council?

 In the case of (Kamakshya Narain v. I.T. Commissioner) MANU/PR/0018/1943, the Privy Council observed that the royalty is "in substance a rent; it is the compensation which the occupier pays the landlord for that species of occupation which the contract between them allows." Thus, royalty in substance is rent. It appears that the concept of royalty is to compensate a right owner of the property who permits or allows others to use his rights from his property. This concept is also understood as 'Mesne profit' in legal parlance. Strictly speaking during the tenure of contractual tenancy what is paid by the tenant to his landlord is the contractual rent. After quit notice from the date of termination of tenancy, the characteristics of the subject matter is changed to damages for use and occupation of the premises and after filing of the suit for eviction till the possession is handed over, if the decree of possession is passed in favour of the landlord, the characteristic is changed to mesne profits. To what extent the quantum changes with the change of such characteristics is for the Courts to decide which the Courts do mould according to the facts and circumstances of the case to do justice between the parties.
IN THE HIGH COURT OF BOMBAY

Chamber Summons Nos. 1539 of 2006 and 1820 of 2007 in Suit No. 1996 of 2006

Decided On: 23.04.2008

 Humayun Dhanrajgir and Ors.Vs. Ezra Aboody

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Whether suit against joint tenants are maintainable even if eviction notice is issued only to one tenant?

All these pleas were found against the appellant. It was held that the tenancy was a joint tenancy that a notice to one of the joint tenants was sufficient, and that the suit also was not bad for non-joinder of the legal representatives of Rupji Jeraj. The trial Judge held that the present agreement was enforceable, inasmuch as this case was governed by sub-s. (1) and not sub-s. 4(a) of s. 4 of the Act. For the same reason, the trial Judge also held that the suit was properly laid in the Bombay City Civil Court at Bombay. The same contentions were raised before us, and we shall deal with them in the same order.

8. The arguments about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that "........ the Assignors do and each of them doth hereby assign and assure with the Assignees as Joint Tenants.......... ". The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr. B. Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 302 of 1961

Decided On: 27.02.1962

Kanji Manji Vs.The Trustees of The Port of Bombay

Hon'ble Judges/Coram:

J.C. Shah, M. Hidayatullah and S.K. Das, JJ.

Citation: AIR 1963 SC 468

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Whether eviction notice not in accordance with S 106 of transfer of property Act is valid?

 It has been urged by the learned Advocate for the appellant that the notice under section 106 of Transfer of Property Act the tenancy is terminated, in case of monthly tenancy, by 15 days' notice expiring with the end of one month of the tenancy. In this regard, the learned Advocate for the appellant has urged that if the notice given by the landlord is perused at Exhibit (39) it does not at all show that the tenancy is to expire with the end of the month of tenancy. The said notice has been given on 12th October, 1984, the same was received by the tenant on 13th October, 1984 whereas the tenancy is admittedly from 9th of each month and this exhibit (39) does not at all show that the tenancy was to expire by 8th of November 1984. This is clearly an illegal notice. To this the learned Advocate for the respondent has urged that this notice Exhibit (39) is an omnibus notice because it shows in the first instance that the tenant had agreed to vacate the demised premises after one month after the service of notice and that the suit has been filed on 13-11-1984. There was thus clear notice of 31 days. Similarly, it is alternatively provided that if the tenant thought that the rent note is not binding on him he was directed to vacate the demised premises after 15 days after the service of notice which would expire with the end of month. In view of this alternative notice it is suggested that the said notice is an omnibus and legal notice. Now, looking to the rent note it would be clear that it nowhere provides that the notice was to be a notice under section 106 of the Transfer of Property Act. On the other hand there is a contract between the landlord and tenant that the landlord was to give one month notice by way of prior knowledge to the tenant. This term of lease would be a term of the contract which is not subject to section 106 of the Transfer of Property Act. In this behalf learned advocate cited ruling MANU/TN/0437/1975 : AIR 1976 Mad 120 in case of K. Nasir Basha and another vs. Turukhan Chatram Charities, wherein it is laid down that "where the lease deed specifically stated that the lease should vacate the property whenever needed by the landlord on his giving 30 days' notice and the notice given stated to terminate it by the end of 30 days of the receipt of notice, held that there was a contract to the contrary in relation to the provisions of section 106." In this case, it is specifically agreed in between the parties that one month's notice was to be given irrespective of the month of tenancy. I, therefore, feel that the notice Exhibit (39) is a valid notice and is capable of terminating the tenancy of the defendant.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

S.A. No. 222 of 1988

Decided On: 26.06.1990

 Abdul Sattar Khan 

Vs.

Abdul Gani Khan

Hon'ble Judges/Coram:

A.A. Halbe, J.

Citation: 1991 MHLJ183 Bom

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When tenant should not be evicted on ground of non payment of Rent?

Section 12 of the Rent Act confers protection on a tenant
who is regularly paying or is ready and willing to pay the rent.
In the present case while there is no doubt that rent has not
been paid, equally, there is no doubt that the secured
creditors including the State Bank of India had all along been
ready and willing to pay the rent and the reasons for non
payment appears to be (para 43 of the impugned order of the
High Court) lack of communication by the official liquidator to
the SBI of the precise amount of rent due. While there can be
no doubt that mere readiness and willingness to pay without
actual payment cannot enure to the benefit of the tenant in
perpetuity what is required under Sub-section (2) of Section
12 is a notice in writing by the landlord raising a demand of
rent and only on the failure of the tenant to comply with such
notice within a period of one month that the filing of a suit for
recovery of possession is contemplated. The service of notice
giving an opportunity to the tenant to pay the unpaid rent is
the first chance/opportunity that the Rent Act contemplates
as a legal necessity incumbent on the landlord to afford to the
tenant. Admittedly, in the present case, no such notice as
contemplated by Section 13 (2) has been issued by the
landlord; at least none has been brought to our notice. In
such a situation, the readiness and willingness of the tenant
to pay the rent, though may have continued for a fairly long
time without actual payment, will not deprive the tenant of the
protection under the Rent Act. 
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 3147-3149 OF 2016

Jabal C. Lashkari & Ors
V
Official Liquidator & Ors
Dated:MARCH 29, 2016.
Citation:(2016) 12 SCC 44

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Whether suit filed prior to expiry of ninety days from date of issue of notice demanding rent is tenable?

From the facts noted herein above, it is crystal clear that the suit
was filed by the respondent prior to expiry of ninety days from the service of
the demand notice.  The presentation of the suit itself being void and going
to the court's jurisdiction, the aforesaid plea would have to be permitted to
be   raised   though   it   was   not   raised   earlier.     The   aforesaid   defect   being

incurable as the landlord could not have cured the said defect after filing the
suit is without any doubt.   Even if such plea was raised in the written
statement, the defect in question was incurable.  On the other hand if it is
found that the Court has entertained the suit on the basis of presentation of
the plaint which was patently void and affecting the jurisdiction of the Court,
said legal  plea would have to be permitted to be raised.  This plea does not
call for any factual adjudication as the date of service of the notice on the
tenant   and   the   date   of   presentation   of   the   plaint   are   not   in   dispute.
Moreover, the decree for eviction has been passed only on the ground of
arrears of rent.    The observations of learned Single Judge in paragraph 6 of
the decision in Digambar Hari Sonpatki (supra) can be relied upon.   
8.  In view of aforesaid, the only conclusion that can be drawn from
the aforesaid facts is that the suit for eviction was filed in a manner contrary
to provisions of  Section 15(2) of the said Act.   The trial  Court had no
jurisdiction to entertain such a prematurely instituted suit.   The Appellate
Court by dismissing the appeal also exercised jurisdiction thereby confirming
the decree passed in the suit of which the trial Court could not have taken
cognizance.   The only inevitable result is that the decree passed by the trial
Court as maintained by the Appellate Court is without jurisdiction.   
9. In view of aforesaid, the judgment of the Appellate Court dated

27/01/2015 in R.C.A. No.41/2011 as well the judgment of the trial Court
dated 15/01/2011 in R.C.S. No.16/08 are quashed and set aside.    It is held
that the suit is liable  to be  dismissed as having been  filed prior  to  the
statutory period prescribed under Section 15(2) of the said Act.       This
adjudication however, shall not preclude the respondent from initiating fresh
proceedings for eviction of the petitioner in case any fresh cause of action
arises.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3788 OF 2015
Jitendra s/o Vasantrao Nagarkar 

­vs­ 
Mohanlal s/o Maluramji Agrawal, 

CORAM  : A.S.CHANDURKAR, J. 
DATE   :  July 07,  2016 
Citation: 2016(6) MHLJ797

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Whether notice of eviction served on one of joint tenants is binding on all joint tenants?

 It is a well established principle of law that
upon death of tenant, the legal representatives become
joint   tenants   and   not   the   tenants   in   common.     The

tenancy   right   is   indivisible.     Therefore,   it   is   an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants.   Then if by notice of determination of
tenancy,   issued   to   one   of   the   joint   tenants,   all   the
joint   tenants   would   become   tress­passers   in   case   the
suit   premises   are   not   vacated,     naturally   the   suit
against some of the joint tenants would also bind the
remaining joint tenants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,

V
 Devichand Hiralal Gandhi,

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Whether it is mandatory to issue eviction notice to sub tenant?

The     question   to   be   considered   is   whether   the
notice under Section 15(2) of the said Act was required to be  duly
served upon the sub­tenant.  The provisions of Section 15(2) of the
said Act contemplate service of such demand notice only upon the
tenant.   The landlady had not recognized the sub­tenant as her
tenant and had in fact sought eviction of the tenant on the ground
of illegal subletting.  The expression “tenant” as defined by Section

7(15)   of   the   said   Act   does   not   include   sub­tenant.     The   said
expression includes a person who is deemed to be a tenant under
Section 25 of the said Act. For the purposes of becoming a person
deemed to  be a  tenant  under  Section  25  of  the  said  Act, the
subletting should have been lawful and subsisting on the date of
commencement of the Act. In the present case, these requirements
are not met as the subletting was not lawful, but was objected to
by the landlady. Thus, when the sub­tenant did not answer the
definition of the expression “tenant” under Section 7 (15) of the
said   Act   nor   was   he   in   a   position   to   take   advantage   of   the
provisions of Section 25 of the said Act there was no requirement
whatsoever   for   the   landlady   to   issue   a   demand   notice   under
provisions of Section 15(2) of the said Act to him.  Merely because
the landlady chose to issue such notice to the sub­tenant and the
same   could   not   be   duly   served,   the   same   would   not   militate
against   the   case   of   the  landlady  while   seeking  eviction   of  the
tenant.   There being no requirement in law to issue a separate
demand   notice   to   the   sub­tenant   who   did   not   answer   the
requirements of Section 25 of the said Act, its non­service on the
sub­tenant would not prejudice the case of the landlady especially
when the demand notice was duly served on the tenant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6936 OF 2015

Shri  Sagar   Bhagwat,   ­V Smt.   Kiran   Wife   of   Ishkumar
Leekha,  
CORAM: A.S. CHANDURKAR, J.

DATED: 28­-07-­2016.
Citation: 2016(6) MHLJ368

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Whether notice terminating tenancy by one co-owner is tenable?

In nutshell the legal position which is culled out can be summarised as under:- 
(i) The notice determining tenancy has to be by the lessor which includes all lessors. It has to be on behalf of all of them and where it is by one of them the consent of the others can be assumed unless proved otherwise; 
(ii) The suit for eviction of tenant can be maintained by one of the co-owners/landlords even where there are other co-owners/lessors on the doctrine of agency assuming the consent of the other co-owners unless their disagreement is established; and 
(iii) One of the co-landlords collecting rent for the body of the landlords by consent implicit or otherwise, functions as landlord for all practical purposes and is entitle to institute proceedings qua all landlords; 
In the instant case, there is no dispute that on the death of Mathura Prasad, the original lessor, the property was inherited by his widow, two sons and the daughter who had instituted the suit. The daughter alone had been collecting rent as landlord as representative of all other co-landlords and as such was acting as landlord for all of them. Therefore, she acted on her own behalf and as an agent of the other co-landlords in terminating the tenancy and instituting the suit. The consent of other co-landlords is implicit as there is no evidence to prove the contrary. She therefore has rightly terminated the tenancy and instituted the suit qua all landlords for the eviction of the tenants. 
ALLAHABAD HIGH COURT
Case :- CIVIL REVISION No. - 590 of 2010 

Miss. Geeta Prasad,  Vs Mohd. Latif & Others 

Hon. Pankaj Mithal,J. 
Dated:January 13 , 2015 
Citation:AIR 2016 (NOC)397 ALL

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Whether notice of eviction served on one legal heir of deceased tenant is binding on other legal heirs of deceased tenant?

It is a well established principle of law that
upon death of tenant, the legal representatives become
joint   tenants   and   not   the   tenants   in   common.     The

tenancy   right   is   indivisible.     Therefore,   it   is   an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants.   Then if by notice of determination of
tenancy,   issued   to   one   of   the   joint   tenants,   all   the
joint   tenants   would   become   tres­passers   in   case   the
suit   premises   are   not   vacated,     naturally   the   suit
against some of the joint tenants would also bind the
remaining joint tenants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CIVIL REVISION APPLICATION NO. 112 OF 2012
 Rameshchandra Daulal Soni,

VERSUS
 Devichand Hiralal Gandhi,

 CORAM : M.T. JOSHI, J.

DATED : 20th JULY, 2015
Citation;2015(6) MHLJ 309 Bom

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