Amarendra Nath Bose vs Peamatha Kumar Chakravortti

Chunder, J.—This is an appeal against an appellate decree of the subordinate judge, 5th court, Alipore, reversing a decree of the munsif, 2nd court, Alipore, in a suit for ejectment. The landlord wanted the premises for bona fide use and occupation and both the courts have found in his favour. So the point no longer arises in second appeal.

The whole question in this appeal is whether the notice to quit is valid in law. The notice to quit, as far as necessary for the purpose of this decision, is to the following effect:

Under instructions from my client Mr. Amarendra Nath Bose of 50/1, Wellington Street, in the town of Calcutta, I write to give you notice to quit, vacate and make over peaceful possession of premises No. 1/2A, Hazra Road which you are occupying under my client as a monthly tenant-at-will to my aforesaid client and at the expiry of the current month of your tenancy.

The learned munsif in deciding issue No. 3 says as follows:

The Defendant contends that the notice is defective inasmuch as the notice does not state the month of the tenancy, namely, whether the same is according to English calendar month or according to Bengali calendar. I do not think this contention is tenable for, in my view, this cannot be treated as a defect when there is no dispute as to the fact that the tenancy is governed by English calendar months. As such I decide this issue in favour of the Plaintiff.

The learned subordinate judge in appeal reversed the finding of the learned munsif holding, firstly, that the notice has not stated the date when the Defendant is required to vacate the premises. Secondly, it is not stated what is actually the month of the tenancy. On these grounds, he has held the notice to be legally invalid and, therefore, decreed the appeal of the tenant Defendant and dismissed the suit of the Plaintiff for ejectment.

Section 106 of the Transfer of Property Act says that in case of a property leased from month to month it is "terminable on "the part of either lessor or lessee by 15 days'' notice expiring "with the end of the month of the tenancy". In the present case the month of the tenancy is made certain by mentioning that it is the current month of the tenancy. As pointed out by the learned munsif, the tenancy was according to the English calendar month and, therefore, as the notice was given in December 9, it was a notice for longer than the period of 15 days required under the law. It has been urged before me that there is no Indian decision showing whether the name of the month of the tenancy, namely, whether December or Bengali month of Agrahayan or Pons or such like is essential. My attention has been drawn to several English decisions by both the parties, namely, Winchester Court, Ltd. v. Holmes [1941] 2 All E.R. 542, Addis v. Burrows L.R. [1948] 1 K.B. 444; and on behalf of the Defendant Respondent to P. Phipp and Company (Northampton and Towcester Breweries), I Amited v. Rogers L.B. [1925] 1 K.B. 14 which was examined at length by all the three Lord Justices in Addis v. Burrows (supra) and the distinction pointed out. My attention has also been drawn to Foa''s Law of Landlord and Tenant, p. 602, Hill and Redman''s latest edition, p. 445 and also to Form No. 251 in the third edition of the Encyclopaedia of Forms and Precedents which certainly go clearly to show that a notice in the present form is perfectly in order. It was observed by Lindley L.J''., in Sidebotham v. Holland L.B. [1895] 1 Q.B. 378, 383, in which Lord Halsbury concurred, as follows:

The validity of a notice to quit ought not to turn on the splitting of a straw. Moreover, if hypercriticisms are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. But such subtleties ought to be and are disregarded as out of place.

The first principle of law is Certumest quod certum reddi protest, or "certain is that which can be made certain." In the present case, the notice was addressed to the tenant. No one knows better than the tenant what the calendar month of the tenancy is because he is paying the rent according to it. He knows whether the tenancy is according to Bengali calendar month or the English calendar month and he also knows from what date of the month the tenancy runs. Therefore, nothing is more certain to him than the meaning of the current month of the tenancy, and also the date of its expiry. To say in the words of Lord Justice Lindley "subtleties and hypercriticisms", indulged in by the learned subordinate judge, deserves to be disregarded as out of place. Under the circumstances, I agree with the learned munsif in holding that the notice was valid, and, therefore, the decree in ejectment passed by him was the correct decree.

The appeal is accordingly allowed with costs, the decree of the learned subordinate judge is set aside and that of the learned munsif granting the ejectment is restored.

Leave to appeal under Clause 15 of the Letters Patent is asked for and refused.