Arumuga Nadar (died) and Others vs Subbulakshmi Ammal

S.S. Subramani, J.—Defendant in O.S. No. 213 of 1976, on the file of District Munsif, Kovilpatti, is the appellant. After the appeal was

filed, the appellant died and his legal heirs were brought on record as appellants 2 and 3.

The suit filed by the sole respondent herein was one for recovery of possession, after terminating the lease arrangement. In the written statement

filed by the defendant, he admitted that the plaintiff is the landlady and that he is the tenant. As per Ex. A-1, dated 13.5.1976, the plaintiff

terminated the tenancy with the tenancy month and sought recovery of possession. According to the tenant, he received the notice only on

17.5.1976, as evidenced by Ex. A-2 acknowledgment. It is further contended by the defendant/tenant that if Ex. A-2 is considered as the date of

receipt of notice, 15 days'' time is not given, as provided in Section 106 of the Transfer of Property Act, and as such, the notice is invalid. On the

basis of Ex. A-1 notice, the defendant contends that the tenancy cannot be terminated and therefore, the suit for recovery also could not be

maintained.

On this issue, the trial court took evidence and came to the conclusion that the notice issued is proper. It terminated the tenancy properly and

so, recovery was also ordered.

When the matter was taken on appeal as A.S. No. 163 of 1981 on the file of Principal Subordinate Judge, Tuticorin, the lower appellate court

also confirmed the findings of the trial court and dismissed the appeal. It is against the concurrent judgments of the courts below, this second

appeal has been preferred.

The only question of law that is raised at the time of admission is as follows:

Whether the findings of the courts below that the notice to quit u/s 106 of the Transfer of Property Act is in accordance with law, is correct.

After the filing of the second appeal, the appellant has filed two C.M.Ps. seeking permission of this Court to raise additional grounds. According

to him, after filing this appeal, he came to know that the schedule property is a Government poromboke and B memos had been issued in his

favour by the Government. It is therefore, his case that he must be permitted to raise additional grounds denying the title of the plaintiff over the

schedule mentioned property. He also wanted additional evidence to be let in for the said purpose.

Both the courts below have concurrently found that the notice issued is proper and the plaintiff is entitled to recover the property. The

termination was also found to be in accordance with Section 106 of the Transfer of Property Act.

It is the case of the plaintiff that ordinarily when the notice is issued or a registered letter is posted from the place of his or her residence to the

business place of the defendant, it takes only 24 hours and the addressee receives it on the next day. To substantiate the same, he has produced

Ex. A-3, another registered letter addressed to another tenant, who is doing business in the adjacent building occupied by the defendant. That

notice was received by that tenant on the very next day, that is, on the expiry of 24 hours. Along with the same, the plaintiff has also adduced oral

evidence to prove that on the expiry of 24 hours, the notice was really tendered to the tenant, but he refused to accept the same at that time. P.W.

2, a witness of the plaintiff has spoken that he also accompanied the postman at the time when the notice was tendered to the defendant.

According to him, it was tendered on the 15th. At that time, the defendant requested the post man to bring the same on the next day saying that he

had to obtain legal advice. In view of the said request, the post man got back the postal article and tendered it again on the 17th. According to the

plaintiff, if the notice was properly tendered as on the date of tender, i.e., 15th, 15 days'' time is given and that would be a sufficient compliance

with the provisions of Section 106 of the Transfer of Property Act. According to me, the contention of the respondent is to be accepted. The

evidence of P.W. 2 was believed by the courts below. If that is believed, it was the defendant, who refused to accept the same at the time when it

was tendered. Having refused to accept the same, he cannot say that the time of actual acceptance is within 15 days. The time will have to be

reckoned from the date of tender initially. Counsel did not argue that if time is calculated from that date, even then, there is no clear 15 days''

notice. Since both the Courts below have believed the evidence of P.W. 2 and no vitiating circumstance is also shown before this Court how, the

Courts below have gone wrong, this Court will be slow to interfering with the above finding of fact.

While interpreting a notice u/s 106 of the Transfer of Property Act, the Supreme Court has held that it must be read in the context of the facts of

that particular case and it should not be interpreted too technically. In Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation

Ltd. Vs. Khaja Midhat Noor and Others, , in para 9, their Lordships have held thus:

''The question is whether there was a valid notice. The High Court held that in the facts of this case, there was a valid notice of termination and

after the valid notice of termination of the lease to the lessee, there was no need to give a fresh notice to the sub-lessee. Notice must be read in the

context of the facts of each particular case having regard to the situation of the parties to whom it is addressed. In Harihar Banerji v. Ramsashi Roy

(1917) 45 I.A. 222 the Judicial Committee observed as follows:

...that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the

test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they

purport to refer, but what they would mean to tenants, presumably conversant with all these facts and circumstances; and, further, that they are to

be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat qutam pereat.

This is how the notices should be literally construed. This decision was relied upon by this Court in Mangilal Vs. Suganchand Rathi, .

If I interpret the notice along with the evidence of P.W. 2, I do not think that any serious argument could be put forth against the concurrent

findings of the courts below.

It at this stage, counsel for the appellant wanted this Court to take notice of certain other developments that had taken place, after the

institution of the suit. According to counsel, the plaint scheduled property is a poromboke and the Government is the paramount title holder and

has issued B memos and thereafter, the appellant has also recognised the Government as his landlord. Counsel submitted that since there was no

threat of eviction from the paramount title holder, the principles of Section 116 of the Evidence Act have no application and I agree with the

counsel for the appellant regarding the correctness of the legal position, which he argued. But I do not think that the same has any relevance to the

facts of this case. The question whether the paramount title holder has a right to evict the appellant or not, is not a matter in issue in this case. In the

written statement, the landlord tenant relationship is admitted. In the pleadings, as stands to-day, the question whether the Government is a

paramount title holder or not and whether the defendant is entitled to dispute the title of the plaintiff, need not be considered. The question of non-

applicability of Section 116 of the Evidence Act also loses its importance. Even assuming that the Government is the paramount title holder and

they are entitled to issue B memos, the appellant is not going to get any better benefit. When he has admitted that he came into possession of the

property on the basis of the lease arrangement with the plaintiff, even if the principle of estoppel u/s 116 of the Evidence Act may not be applied, it

is the duty of the tenant to surrender vacant possession of the property to the person from whom he had taken possession. The additional grounds

that are sought to be taken in this case, only relate to the rights of the Government and the applicability of Section 16 of the Evidence Act. In view

of my findings as above, I do not think that any grounds have been made out to permit the appellant to raise additional grounds in the second

appeal.

In this connection, one more point was brought to my notice by counsel for the respondent. When the Government issued notice treating the

property as a poromboke, subsequently, the property was declared as absolutely belonging to her Counsel further stated that challenging the B

memos and also the action of the Government treating it as a poromboke, she filed a suit in O.S. No. 2 of 1986 on the file of the District Munsif''s

Court, Kovilpatti for declaration of her title. That suit was decreed and even though an appeal was filed, that was not successful. Counsel

submitted that since the present appellant was also a party to the above proceedings, the contention that the plaintiff has no title to the property, is

barred by res judicata Once I have dismissed the C.M.Ps. as not relevant, I do not think that I should consider the arguments of counsel for the

respondent in that regard. I only refer to the submissions of the counsel and what transpired in the court. In this case, the landlord tenant

relationship is admitted and the notice issued u/s 106 of Transfer of Property Act, as evidenced by Ex. A-1 is also found to be valued termination

of tenancy. That will be sufficient for the disposal of this second appeal.

In the result, the substantial question of law is answered against the appellant and the second appeal as well as the C.M.Ps. are dismissed. The

respondent will be entitled to her costs in the second appeal.