Devarapalli Satyanarayana vs Sista Sanjeeva Rao and Another

P.L.N. Sarma, J.—The defendant-tenant is the appellant is this Second Appeal. He is challenging the judgments of the Courts below decreeing the suit filed by the landlord for eviction and for other reliefs.

The defendant-tenant took the suit premises on lease from the plaintiff on a monthly rent of Rs. 450/-. Though the tenancy was oral, it is now held by the Courts below as a fact that it is a month to month tenancy, commencing from 11-8-1985. Alleging that the defendant committed default in payment of rent, the palintiff-landlord issued quit notice, dated 17-3-1986, u/s 106 of the Transfer of Property Act determining the tenancy and calling upon the tenant to vacate and deliver the premises on or before 10-4-1986. Since the tenant-appellant has not complied with the demand made in the notice, the suit was filed.

It is not necessary for us to go into the questions of fact as the relevant facts have been concluded by the findings of fact recorded by the Courts below, which are final and cannot be interfered with in exercise of the jurisdiction of this Court u/s 100 of the Code of Civil Procedure.

The main question raised in this Second Appeal is with reference to the validity or otherwise of the quit notice, dated 17-3-1986, Ex.A-2, issued u/s 106 of the Transfer of Property Act (for short ''the Act'')- The relevant portion of the notice, Ex.A-2, is as follows:

"Your tenancy is hereby terminated and you are called upon to vacate and deliver the premises on or before 10-4-1986 and pay the arrears of rent up to date."

When the Second Appeal came up before the learned single Judge, Ms. Justice S.V. Maruthi, two decisions - Krishnamurthy v. Subba Rao, 1986 (2) ALT 625. and S. Appa Rao v. K. V. Chalapathi Rao, 1987 (1) ALT 80 (NRC) - (CCCA No. 115/82, dt.11-3-87). - were relied on by the Counsel on either side with regard to interpretation and the effect of a similar notice. The learned Judge was of the view that there is an apparent conflict between the two judgments referred to above. Therefore, the learned Judge directed that the papers be placed before the Hon''ble the Chief Justice for constituting a Bench to resolve the conflict. That is how the matter has come up before us.

The tenancy is a month to month tenancy commencing with effect from 11-8-1985. The notice to quit, Ex.A-2, is dated 17-3-1986 and it says that the ''tenancy is hereby terminated'' and the defendant-tenant was "called upon to vacate and deliver the premises on or before 10-4-1986......"

The argument of the learned Counsel for the appellant is that the words "hereby terminated" contained in Ex.A-2 indicate that the landlord-respondent herein, intended to determine the lease with effect from the date of the notice itself and if it is so construed, it runs counter to the provisions of Section 106 of the Act and therefore, it is invalid. The decision in Krishnamurthy''s case1 fully supports this argument of the learned Counsel for the appellant-tenant.

On the other hand, the learned Counsel for the respondent-landlord, relying upon the judgment in S. Appa Rao''s case1 contended that the words ''hereby" contained in the quit notice do not indicate that the tenancy was terminated with effect from the date of the said notice itself. In other words it is contended, that the word ''hereby'' does not ipso facto terminate the tenancy on the date of the notice itself.

We have to necessarily construe the meaning and effect to be given to the words "your tenancy is hereby terminated".

It is well settled that a notice to quit must be construed liberally and broadly so as to find the intention of the parties and not with a desire to find faults and render it defective. The quit notice u/s 106 of the Act should be read in a pragmatic and not in a pedantic manner. Keeping this well established principle of law in mind we have to construe the words used in the quit notice, Ex.A-2. The quit notice will have to comply with the statutory requirement of Section 106 of the Act. The present lease, not being one for agricultural purposes and it being one from month to month, is terminable on the part of either party by giving 15 days notice expiring with the end of a month of tenancy. If the present notice, dated 17-3-1986, is construed as one terminating the tenancy with effect from 10-4-1986, it will be valid as it complies with the requirements of Section 106 of the Act. Therefore, we have to consider in this case as to what is the meaning to be given to the words "hereby terminated".

In Krishna Murthy''s case1 the notice contained the words "that my client hereby terminates the tenancy in your favour". While construing the words "hereby terminates", the learned Judge stated that those words indicate that the landlord intended to determine the Jease by that notice from that date itself and in the said view held that the notice is invalid.

In Appa Rao''s case (2 supra) the learned Judge had to construe the words "I hereby give you notice of termination of your tenancy" occurring in the quit notice. The words used in the quitnotice are practically identical with the words used in the quit notice considered in Krishna Murthy''s case (1 supra). The learned single Judge rejected the contention of the tenant in the said case that the words occurring in the notice indicate that the tenancy was terminated on the date on which the notice was issued. The learned Judge came to the conclusion that the said words do not indicate ipsofacto termination of the tenancy on the same day, namely, on the date of the notice. The judgment in Krishna Murthy''s case (1 supra) was placed before the learned Judge. The learned Judge, however, distinguished the same having regard to the language employed in the notice to quit, in Krishnamurthy''s case (1 supra).

Notice containing similar words have been the subject matter of consideration by different High Courts.

In Ahmad Ali Vs. Mohd. Jamal Uddin, ., a Division Bench of the Allahabad High Court had to construe the notice to quit which contained the words, among others,".....your tenancy is terminated......" The Division Bench, after referring to the provisions of Sections 106 and 111(h) of the Transfer of Property Act, stated that the mere use of the present tense does not mean that the tenancy is terminated in praesenti and the present tense used is quite consistent with the termination of the tenancy in futuro. Ultimately, the learned Judges stated that the tenancy was terminated by the notice and the intention of the party was that the tenancy is terminated after the expiry of 30 days from the receipt of the notice.

The next case, which considered a similar notice, is the one in Chandika Vs. Sukhnandan, . In the said case the learned Judge had to consider the notice which contained the words, among others, ".... your tenancy is hereby terminated by this notice." The learned Judge, after referring to the meaning given to the word ''hereby'' in the Legal Glossary compiled by the Government of India, Ministry of Law, Justice and Company Affairs (1969 Edition), held that the word ''hereby'' as used in the context in which it occurred, means nothing more than that the tenancy was being terminated through the notice, and that the use of the word "hereby" cannot lead to the conclusion that the landlord intended to terminate the tenancy in praesenti. The learned Judge referred to and relied on the judgment in Abdul Jalil Vs. Haji Abdul Jalil, . In the said case the Division Bench had to construe the notice issued u/s 106 of the Transfer of Property Act which contained the words - "your tenancy is terminated by this notice". The learned Judges constituting the Division Bench, after referring extensively to the case law on the subject as well as the usual notices issued u/s 106 of the Act, held that the use of present tense in relation to termination of the tenancy only refers to the present act of giving the notice by means of which the tenancy was sought to be terminated and that does not mean that the tenancy was sought to be terminated forthwith or with effect from the date of the said notice.

Another case relied upon by Mr. C. Subba Rao, learned Counsel for the landlords, is the one reported in Mohammad Haji Vs. Umananda Kamath, . In this case a learned single Judge of the Kerala High Court had to construe the notice, which contained the words, among others, "..... your tenancy is hereby terminated and you are called upon to surrender possession of the room on or before 4-7-1971 ...." On a consideration of the decisions relevant thereto, including the decision in Laxmi Devi Vs. Chandramani Devi, ., the learned Judge came to the conclusion that the expression "hereby" only means ''through the notice'' and the words cannot be construed as terminating the tenancy from that date, namely, the date of the notice and it cannot be treated as a notice terminating the tenancy forthwith.

The quit notice which fell for consideration of the learned Judge in Mohammad Haji Vs. Umananda Kamath, ., is identical with the quit notice under consideration.

To a similar effect is the judgment of the Rajasthan High Court in General Auto Agencies Vs. Hazari Singh, . . In the said case the learned Judge had to construe the words, among others, "..... hereby terminates your tenancy by this notice......". The learned Judge held, on a consideration of the case law on the subject, that the expression "hereby terminates" cannot be read to mean terminated forthwith or terminated on that day.

The Legal Glossary compiled by the Government of India (1988 Edition) gives meaning to the word "hereby'' as ''by this act or document''. In ''The Living Webster Encyclopedic Dictionary of the English Language'' the meaning given to the word ''hereby'' is - "as a result of this; by this means".

Having regard to the decisions, referred to above, and the meaning given to the word ''hereby'' in Legal Glossary and the Living Webster Encyclopedic Dictionary, referred to above, we are clearly of the opinion that the words "your tenancy is hereby terminated", contained in the quit notice - Ex.A-2, indicate that the tenancy was terminated through the said no tice but not terminated with effect from the date of the notice, namely, 17-3-1986. The notice will have to be read as a whole and the intention of the parties must be gathered. The notice cannot be construed as a statutory provision; it must be construed from a common sense point of view. The notice not only hereby terminated the tenancy but also called upon the defendant-appellant to vacate and deliver the premises on or before 10-4-1986. As mentioned in the foregoing paragraphs, the tenancy is a month to month tenancy commencing with effect from the 11th of a month and ending by the 10th of the succeeding month. The requirement of Section 106 of the Act is that fifteen days notice should be given for termination, expiring with the end of a month of the tenancy. In the case on hand the expiry of a month of tenancy is 10-4-1986. The quit notice, Ex.A-2, gives more than fifteen days notice of termination and the termination is with effect from the expiry of a month of the tenancy, namely, 10-4-1986. We are of the opinion that the intention of the party is also the same. As stated in the foregoing paragraphs, the notice will have to be construed in accordance with the well settled principles, referred to above and with a view to sustain it, not with a view to make it defective. So construed in the light of the decisions referred to above, we are of the opinion that the quit notice, Ex. A-2, is valid and it is in accordance with the terms of Section 106 of the Act.

In Krishnamurthy''s case (1 supra) the above mentioned decisions of different High Courts, which have taken a consistent view that the use of the word ''hereby'' in a quit notice does not indicate that the tenancy was terminated on the date of the notice itself, were not brought to the notice of the learned Judge.

For the foregoing reasons, we are of the view that the judgment in Krishna Murthy''s case (1 supra) does not represent the correct position in law and it is accordingly overruled, while the judgment in Appa Rao''s case (2 supra) does represent the correct position in law.

We do not find any substance in the Second Appeal and it is, therefore, dismissed but in the circumstances there will be no order as to costs.