Can a municipal corporation evict its lessee by issuing a notice granting just three days to vacate suit shop?

 It must be noted here that the notice threatened forcible eviction of respondent by granting him just 3 days time to vacate the suit shop, and, therefore, the notice was in clear violation of Section 106 of the Transfer of Property Act, with the agreement between the appellant and the respondent being one of lease and not the licence. The said Act does not confer any special power on the Corporation to forcibly evict the tenants or lessees facing a situation as in the present case, bypassing the provisions of the Transfer of Property Act and powers of Civil Court. Therefore, the rejection of its objection by both the Courts below is legal and proper and cannot be interfered with.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

S.B. SHUKRE, J.

Nagpur Municipal Corporation Vs. Bhaurao s/o. Marotrao Mohod (D) thr. Legal Heirs

Second Appeal No.205 of 1993

22nd April, 2014

Citation: 2014(6) ALL MR 537

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Whether non-payment of rent by the tenant to the landlord amounts to a forfeiture of tenancy?

  Thus, the suit of the Plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The Defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The Plaintiffs have filed a suit for possession against the Defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9918 of 2011

Decided On: 19.03.2020

 Nand Ram  Vs.   Jagdish Prasad

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Whether tenant can raise the plea that the eviction suit is barred by limitation if he fails to produce and prove quit notice issued by the landlord?

  In respect of second question of law examined by the High Court that the Plaintiff's suit was barred by limitation is based upon the notice dated 23rd September, 1960 produced in proceedings before the Reference Court as Ex. A-3. The reference to such notice was made in an application for amendment of the written statement Under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the Defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex. A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The Defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the Plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable.

{Para 28}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9918 of 2011

Decided On: 19.03.2020

 Nand Ram  Vs.   Jagdish Prasad

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Whether notice issued by landlord to tenant by certificate of posting is valid?

 On the contrary, in the case of Sumitra Devi vs.

Sampuran Singh (2011) 3 SCC 556, which has been relied

upon by learned Senior Counsel for the Appellant, this Court

has held that “it will all depend on the facts of each case

whether the presumption of service of notice sent under postal

certificate should be drawn. It is true that as observed by the

Privy Council in its above referred judgment, the presumption

would apply with greater force to letters which are sent by

registered post, yet, when facts so justify, such presumption is

expected to be drawn even in the case of a letter sent under

postal certificate.” Considering the facts and circumstances of

that case, this Court held the notice sent under certificate of

posting to be sufficient service.

In the case of Ranju vs. Rekha Ghosh (2007) 14

SCC 81, this court was considering a case where one month’s

notice was to be given to the tenant for eviction. After

considering the provisions of the relevant Tenancy Act,

Transfer of Property Act and the Bengal General Clauses Act,

it was held that “clause (6) provides mere “one month’s

notice”; in such event, the said notice can be served in any

manner and it cannot be claimed that the same should be

served only by registered post with acknowledgement due.” In

the facts of that case, it was held that service of notice sent

under certificate of posting was sufficient. Similar is the case

at hand, where the Act provides for that ‘the landlord has

given a notice…’, without specifying the mode of such notice,

and in the facts of the present case, notice sent under postal

certificate has rightly been held to be proper service.

While considering a case of service of notice under the

Companies Act, this Court, in the case of V.S. Krishnan vs.

Westfort HiTech Hospitals (2008) 3 SCC 363, has held that

service of notice sent under certificate of posting would be

sufficient where “there are materials to show that notices

were sent, the burden is on the addressee to rebut the

statutory presumption.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2375 OF 2020

MOHD. ASIF NASEER Vs WEST WATCH COMPANY 

Dated:April 24, 2020.

Vineet Saran, J.

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Whether court can relieve tenant from liability of eviction if quit notice was issued for termination of lease on expiry of statutory period?

The tenant was not found to be in default of payment of rent, as he had duly tendered a sum of Rs. 13560/- by draft in response to notice under Section 106 of the Transfer of Property Act, 1882. By applying the principles of Section 114 of the Act, the tenant was relieved from the liability of eviction. The trial Court also held that no amount was payable by the tenant towards electricity charges. It also held that the plaintiffs could not establish bona fide need for the shop in dispute, therefore, it declined to grant relief of eviction.

5. The sole submission of Sri N.C. Rajvanshi, learned senior counsel for the revisionists is that once U.P. Act No. 13 of 1972 was found to be inapplicable to the building in dispute, the relationship of the parties would stand governed by the provisions of the Transfer of Property Act, 1882. He submitted that the tenancy was terminated by giving notice under Section 106 of the Act. It was not a notice of forfeiture on the ground of non-payment of rent nor provisions of Section 114 were applicable. The tenant became liable for eviction, as service of notice is not in dispute.

6. Since the trial Court has found the provisions of U.P. Act No. 13 of 1972 to be inapplicable, the relationship between the parties was governed by the general law i.e. the Transfer of Property Act, 1882. Section 111 of the Act provides various modes and contingencies by and under which a lease of immovable property stands determined. Under Clause (g) thereof, a lease gets determined by forfeiture i.e. where the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter followed by a notice in writing by the lessor to the lessee of his intention to determine the lease. Under Clause (h), a lease determines on the expiration of the notice to determine the lease or to quit or of intention to quit, the property leased, duly given by one party to the other. The manner of serving notice to quit is that provided by Section 106.

7. The forfeiture, which is entailed upon break of express condition of lease is condonable, by virtue of provisions of Section 114 of the Act, where the leasee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days. In such a case, the Court may, in lien of passing a decree of eviction, pass an order relieving the leasee against the forfeiture.

8. Section 114 of the Transfer of Property Act, 1882 is thus applicable only where the lease is determined by forfeiture i.e. on account of breach of an express condition which entitles the lessor to re-enter. On the other hand, if the tenancy is determined by a simple notice to quit, as provided under Clause (h) of Section 111, then Section 114 would not come to the rescue of the leasee.

9. The notice dated 19.5.2010 has been brought on record and a perusal thereof reveals that it is a notice under Clause (h) of Section 111 of the Transfer of Property Act, 1882 seeking termination of tenancy upon expiry of the statutory period. The plaintiffs have specifically stated that after expiry of the statutory period, the tenant should vacate, as they do not want to continue him as tenant any more. In the said notice, it is also stated that rent and electricity charges since March 2010 have not been paid, but the tenancy has not been determined on the ground of non-payment of these amounts. In fact, the finding of the Court below is that no written lease deed has been brought on record, nor it was the case of the landlords that there was breach of express condition of any lease agreement entitling the plaintiffs to determine the lease by forfeiture.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 55 of 2013

Decided On: 18.01.2019

 Subhash Chandra  Vs.  Ajay Gupta

Hon'ble Judges/Coram:

Manoj Kumar Gupta, J.

Citation: AIR 2019(NOC) 819 ALL

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Supreme Court: Filing of eviction itself amounts notice to quit to tenant

In Nopany Investments (P) Ltd. v. Santokh Singh (HUF) MANU/SC/8184/2007 : (2008) 2 SCC 728, a two judge Bench of this Court has held:

22. ...In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary Under Section 106 of the Transfer of Property Act in order to enable the Respondent to get a decree of eviction against the Appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3873 of 2019 

Decided On: 11.04.2019

Sevoke Properties Ltd. Vs. West Bengal State Electricity Distribution Company Ltd.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

Citation: 2019(1) RCR(Rent) 586,2019 SCC OnLine SC 592

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Supreme Court: It is not necessary to issue quit notice if lease has expired by efflux of time

Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the Respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The Respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination Under Section 106.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3873 of 2019

Decided On: 11.04.2019

Sevoke Properties Ltd. Vs.  West Bengal State Electricity Distribution Company Ltd.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

Citation: AIR 2019 SC 2664

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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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Whether objection to quit notice if not taken specifically is deemed to have been waived?

 Thus when in paragraphs 1, 6 and 9 of the written statement the applicant did not dispute that the suit notice terminated the tenancy of the applicant nor did the applicant contend that the notice was illegal in any manner being contrary to section 106 of the Transfer of Property Act, in such a situation, the consequence in law is that the applicant acquiesced in the suit notice and waived its right to contend that the suit notice is illegal. The applicant thus was not permitted to take a contrary position. The law in this regard is well settled. In Dharampal v. Harbansingh 2006 (9) SCC 216 the Supreme Court has held that objection to the invalidity or insufficiency of the notice should be specifically raised in the written statement failing which it will be deemed to have been waived. It was held that in the absence of a specific plea in the written statement in regard to the said objection, such a plea would be deemed to have been waived by the appellants-tenant therein. Their Lordships in paragraphs 7 and 8 of the decision observed thus:

"7. Learned counsel for the appellants submits that none of the two recitals contained in the notice can fulfill the requirement of section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of receipt of the notice. Both are bad in the light of the requirements spelled out by section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant." The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy has not been take in the written statement.

8. Obviously, for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application (ST) No. 4255 of 2018

Decided On: 02.04.2018

 Universal Cables Ltd. Vs.  Laxmi Properties Ltd.

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Whether inadvertent error in quit notice issued U/S 106 of transfer of property Act will invalidate it?

 Justice P.N. Bhagwati, speaking for the bench and referring to the observations of Lord Justice Lindley in Sidabotham v Holland (1895) 1 SC 376 in Bhagabandas Agarwala v. Bhagwandas Kanu & ors MANU/SC/0269/1977 : AIR 1977 SUPREME COURT 1120 observed that notice to quit 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. In paragraph 3 the Supreme Court observed thus:

Now, 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 ul resmedia coolest quam pereat. The validity of a notice to quit" as pointed out by Lords Justice Lindley L.J. in Sidabotham v. Holland (1895) 1 SC 376 "ought not to turn on the splitting of a straw". It must not be read in 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. See Hariher Bannerjee v. Ramashi Roy 45 I.A. 222. The notice to quit in the present case must be judged for its validity in the light of this well recognized principle of interpretation."

17. It is thus, well-settled that notice to quit need not be worded with accuracy. It would not be in-valid merely because the period mentioned therein falls short of the period specified under subsection (1) of section 108 of the Transfer of Property Act, 1882 namely of 15 days notice in case of month-to-month tenancy when a suit or proceeding is filed after expiry of the period so specified under subsection (1) of section 108. The object and purpose being, that the leasee should have a reasonable notice before he is asked to vacate the premises. Thus, the law is not that, the notice to quit issued by the landlord must be strictly construed in favour of the tenant, but the notice is required to be construed in a common sense way. It is well settled that the notice would be required to be construed broadly and it should not be defeated by inaccuracies even in regard to the date of expiry of the notice. Even the amended section 106(3) of the Transfer of Property Act reflects this position. When the language used in the notice is clearly to convey the intention of the lessor namely that the tenant should quit and vacate the suit premises, surely, a honest and inadvertent error would not invalidate the notice. The surrounding circumstances are also of relevance while considering any issue on the landlord's notice to the tenant, terminating the tenancy.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application (ST) No. 4255 of 2018

Decided On: 02.04.2018

 Universal Cables Ltd. Vs.  Laxmi Properties Ltd.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(6) MHLJ 715

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Whether new tenancy will be created if second quit notice is issued after issuance of first quit notice?

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. 

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." 

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. 

ALLAHABAD HIGH COURT

Delivered On :22.11.2018 

CIVIL REVISION No. - 564 of 2011 

Praveen Kumar Jain Vs Jagdish Prasad Gupta 

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Whether landlord will be debarred from seeking eviction of tenant if receives rent after issuance of quit notice?

 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. 

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. 

ALLAHABAD HIGH COURT

Delivered On :22.11.2018 

CIVIL REVISION No. - 564 of 2011 

Praveen Kumar Jain Vs Jagdish Prasad Gupta 

Hon'ble Mrs. Sangeeta Chandra,J.

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Whether tenant has deemed to have waived objection to validity to quit notice if he has not replied to said notice?

 First, when the Appellant sent a quit notice dated 17.05.2012 to the Respondent Under Section 106 of the TP Act determining the tenancy and calling upon the Respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.

57. In our view, the Respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.

58. In the case of Parwati Bai v. Radhika MANU/SC/0372/2003 : AIR 2003 SC 3995, the question arose as to whether the tenancy was terminated in accordance with the provisions of Section 106 of the TP Act. The Defendant despite receiving the notice from the Plaintiff did not reply to it.

59. This Court held that if the Defendant does not raise any objection to the validity of quit notice at the first available opportunity, the objection will be deemed to have been waived. The following Para 6 of the decision is apposite which reads as under:

6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice Under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ext. P-4.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

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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 it is mandatory for licensor to issue quit notice to licensee prior to filing of eviction suit?

In view of the concurrent findings of the courts below, the fact remains that the defendant was not a tenant but was a mere licensee in possession of the land. The question, therefore, is as to whether a licensee is entitled to get a notice to quit or a demand for possession before a suit for his ejectment can be instituted. A licensee has, no real interest in the property. He uses the property by the permission of the owner with whom the legal possession continues. It gives the licensee a personal privilege with no interest in the, land (vide Associated Hotels of India Ltd. v. R. N. Kapoor, MANU/SC/0168/1959 : [1960]1SCR368 ; B. M. Lall v. Dunlop Rubber Co. (India) Ltd., MANU/SC/0334/1967 : [1968]1SCR23 ; Errington v. Errington (1952) 1 KB 290). That is why normally a licence comes to end with the death of either party. To call upon the owner in every such case to make a demand for possession before suit would be a tax on his generosity, though normally speaking one does demand possession before going in for a costly and time-consuming litigation. At the same time there may be cases where the licensee may have made commitments to others on the basis of the licence, and it would be inequitable to call upon him to vacate at once by a suit, without giving him sufficient time ahead to make suitable arrangements. There can be no universal inflexible rule that a licence has to be revoked by a demand for possession, before a suit is instituted. It will depend on the facts and circumstances of a particular case. The learned Judge has relied on a Canadian case, (The Canadian Pacific Rly. Co. v. The King) reported in AIR 1932 PC 108 and Sudhir Kumar Majumdar v. Dhirendra Nath Biswas reported in MANU/WB/0162/1957 : AIR1957Cal625 in the main. These two decisions do not support the contention that a licensee is always entitled to get a notice or demand before a suit to recover possession can be filed. In the Privy Council case their Lordships held that in circumstances where "the exercise of the right may have involved the licensee in obligations in other directions, which the determination of the license would disable him from fulfilling unless the licenses were determined after a notice sufficient, in point of time, for the making of substituted arrangements", a notice would be necessary. In Sudhir's case, MANU/WB/0162/1957 : AIR1957Cal625 also the person in occupation was a tenant at will and the facts would not be exactly similar. What is more, in Gobinda Chandra Ghose v. Nanda Dulal Sut 27 Cal LJ 523 : (AIR 1918 Cal 601 (2)) an exactly similar point came up for consideration before this Court and it was held that the licensee was not entitled to get a notice and that the Suit should be decreed. In the facts of this case, I must hold that no previous notice or demand for possession was called for.

IN THE HIGH COURT OF CALCUTTA

A.F.A.D. No. 1568 of 1961

Decided On: 14.01.1971

Smt. Sayambari Dassi Vs.  Dwijapada Naskar

Hon'ble Judges/Coram:

S.K. Chakraborty, J.

Citation: AIR 1971 Cal 435

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Whether it is necessary to issue quit notice to all legal heirs of deceased tenant?

 It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant.

It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.

In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bone (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3342 of 1979

Decided On: 28.04.1989

H.C. Pandey vs. G.C. Paul

Hon'ble Judges/Coram:

R.S. Pathak, C.J. and S. Natarajan, J.

Citation: (1989) 3 SCC 77

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Whether it is necessary to issue quit notice as per S 106 of transfer of property Act in case of exempted premises?

It is well-settled that when an eviction of a tenant is sought for in terms of the provisions of the Rent Legislation in force in the State, the procedure for the purpose of eviction of such tenant being specifically provided under such rent legislation itself, there is no need to take resort to the provisions of the general law i.e., the Transfer of Property Act and therefore the question of service of notice under Section 106 of the Transfer of Property Act in such cases does not arise. However, that is not the case in hand. Once the provisions of the new Rent Act are being exempted from their applicability to the premises in occupation of the petitioners, or the protection under the new Rent Act is being made as not available to the petitioners, nevertheless, the character or status acquired by the petitioners as the deemed tenant continues, the lessor or lessee relationship continues to exist between the parties and therefore unless the same is put to an end by the procedure known to law, i.e., by taking resort to the provisions of the Transfer of Property Act, it cannot be said that the petitioners can be evicted from the suit premises. Admittedly, in the case in hand, the petitioners have not been served wit any notice of termination of tenancy as is otherwise required under Section 106 of the Transfer of Property Act and therefore the suit filed without termination of tenancy of the petitioners cannot entitle the respondents to evict the petitioners from the suit premises.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 469 of 2003

Decided On: 26.02.2003

 Hindustan Ferrodo Ltd. Vs. Hari Lachman Hasija

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2003(4) MHLJ 50,2003(5) BOM CR790, 2003(3) ALLMR 201

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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 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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