Firm Chhaju Mal Daya Ram vs Om Parkash and Others

K.V. Gopalakrishnan Nair, J.—This second appeal arises out of an ejectment suit instituted by the Respondents against the Appellant in the

court of the Munsiff at Jammu. The ground for eviction was that the Respondents landlords required that suit shop premises for their own use as

provided in Section 11(1)(h) of the Rent Control Act. The tenancy was alleged to have been duly determined by a notice to quit u/s 106 of the

Transfer of Property Act.

The Appellant-tenant resisted the action on the grounds that the Respondents did not require the suit premises for their own occupation and that

the tenancy was not terminated by a valid notice to quit

The trial court dismissed the suit. On appeal the Addl. District Judge at Jammu reversed the decision of the trial court and gave judgment for

Plaintiffs. The aggrieved tenant carried the matter in a second appeal, and Ali, J. confirmed the finding of the lower appellate court that the

landlords reasonably required the suit premises for their own use. But he remanded the case to the District Judge at Jammu for a fresh decision on

the question of the validity of the notice to quit. The District Judge who heard the case afresh on remand, arrived at the finding that the notice to

quit was valid, and consequently passed a decree in ejectment against the tenant. The tenant has again come to this Court in second appeal.

Both sides agree that the appeal is confined to the question of the validity of the notice, and if it is found against the Appellant, a decree for

ejectment has to issue against him.

The learned Counsel for the Appellant challenged the validity of the notice on two grounds. First, that it was not issued by all the lessors and

secondly that it did not expire with the end of a month of the tenancy as required by Section 106 of the T.P. Act

The suit premises were originally granted to the Defendant by two brothers, Ganga Ram and Shiv Saran under a lease dated 11-1-2003 for a

period of eleven months. The document of lease expressly stipulated that the tenancy was to commence from 1-2-2003. Ganga Ram died during

the currency of the lease. In a family partition between the Respondents who are the sons of Ganga Ram and their uncle Shiv Saran, the other co-

lessor, the suit premises are alleged to have been allotted to the share of the Respondents. After the expiry off the term of the original lease, the

Appellant has been holding over. The Respondents in their capacity as landlords have sued to eject the Appellant.

The contention on behalf of the Appellant is that the Respondents cannot successfully maintain an action in ejectment against the Appellant in the

absence of Shiv Saran or his legal heirs. This argument is founded on the proposition that one co-lessor cannot validly determine the tenancy or

successfully sue in ejectment of a tenant. The learned Counsel for the Respondents has quarrelled with this proposition of law. I think as a

proposition of law the Appellant's contention is well-founded. It is settled law in India that a tenant cannot be ejected or his tenancy determined at

the instance of only one of the landlords where the tenancy has been created by several landlords. In Gopal Ram Mohuri v. Dhakeshwar Pershad

Narain Singh ILR 35 Cal 807, at p. 811 a Division Bench of the Calcutta High Court after reviewing the previous decisions observed as follows:

We think the rule to be deduced from these cases is, as laid down in Ebrahim Pir Mohamed v. Curesetji Sorabji De Vitre ILR 11 Bom 644 that

though in England any joint tenant may put an end to his demise, as far as it operates on his own share, whether his companions join him in putting

an end to the whole lease or not, yet according to the Indian decisions the relation created by contract with several joint landlords continues until

there exists a new and complete volition to change it.

X X X X

But where the relation of joint landlords continues it would seem the tenancy of the lessees cannot be put an end to, except by all the lessors acting

together.

In Sri Raja Simhadri Appa Rao v. Prattipati Ramayya ILR 29 Mad 29, at p. 34, the difference between the English and the Indian Law on the

subject was summarized as follows:

The difference between the English and the India cases appears to be that where there is a relation created by contract with several joint landlords

according to the English cases, that relation subsists, only so long as all of them wish it to continue, while, according to the Indian cases, it subsists

until all of them agree to put an end to it; and it is not competent to any one of them to determine a contract which is entire, unless there are any

special circumstances in the case, like collusion between a tenant and one of the lessors, etc.

In Balaji Bhikaji v. Gopal ILR 3 Bom 23, Westropp, C.J. pointed out that if any one of several tenants in common or joint tenancies who is not

acting by consent of the others is to be at liberty to enhance rent or eject tenants at his own peculiar pleasure, there manifestly would be no safety

for tenants and it would be impossible for them to know how to regulate their conduct, or whom to regard as their landlord.

In a later decision reported in Vagha Jesing Vs. Manilal Bhogilal Desai, , Broomfield J. on a review of the previous decisions bearing on the

matter stated his conclusions in the following words:

These decisions, in my opinion, establish the proposition, that where the landlords' rights belong jointly to several persons, a suit like these with

which I have to deal can only be brought by all the co-owners suing jointly as Plaintiffs. It makes no difference, in my opinion, whether the suit be

technically one for enhancement of rent or to recover rent on a new basis of calculation.

It is unnecessary to burden this judgment with more citations on the same point. The proposition of law which emerges from the decided cases is

that one co-lessor cannot at his own choice and pleasure determine the tenancy or eject a tenant except in cases where he validly represents the

other co-lessors also.

This, however, does not dispose of the question in this appeal. The case of the Respondents is that they are not co-lessors but that the entire

landlord's interest belongs to them and that the Appellant-tenant has been dealing with them exclusively as lessors for long years past. If this is the

true position, it will be untenable to argue that the Respondents are only in the position of co-lessors and cannot, therefore, validly determine the

tenancy or evict the Appellant unless the other co-lessors also join in the action. The. Appellant has admittedly been a tenant by holding over

during the past nearly 12 years. The evidence in the' case shows that during this period the Appellant did not treat anybody other than the

Respondents as his landlords. All along he has been paying rent of the suit premises to the Respondents. He has been holding over only with the

consent of the Respondents. The Appellant as tenant had made an application to the Rent Controller about seven years ago in 2008 for fixation of

fair rent of the suit premises. He did not implead anybody other than the Respondents as parties in those proceedings. The Respondents in their

capacity as landlords filed a suit against the Appellant on the 13th Bhadoon 2008 for his ejectment from the suit premises and for arrears of rent.

They founded their claim on the ground that the landlords right exclusively vested in them. The Appellant did not object to that claim in any manner;

on the other hand he deposited the arrears of rent claimed and obtained a certificate from the Rent Controller that he was a good tenant According

to the then law, such a certificate was sufficient to entail a dismissal of the suit in ejectment. But the Respondents in that suit claimed their costs and

the Court awarded costs against the Appellant. These facts bear out that only the Respondents were the landlords in respect of the suit premises

and that the landlords' interest vested in none else.

In the present suit the plea that the Respondents are only co-lessors has not been specifically set up in the written statement of the Appellant.

Nor is there even a shred of evidence to show that anybody other than the Respondents has any right or title to the suit premises. Lal Chand who

was the agent of the original lessors and who executed the original lease deed in favour of the Appellant on behalf of Ganga Ram and Shiv Saran

has deposed in unmistakable terms that the suit premises exclusively belong to the Respondents. No attempt was made by the Appellant to cross-

examine him on this point. One of the Respondents, Om Prakash, has also given sworn testimony that the suit premises were obtained by the

Respondents as their share in a family partition. This testimony also was not sought to be challenged in cross-examination by the Appellant. In this

state of evidence, it is not possible to hold that the Respondents are only co-lessors and that the lessor's interest vests in some other person also.

What is significant is that the entire pleadings and the evidence in the case proceeded on the assumption that the suit property belongs exclusively

to the Respondents. As I have already indicated, the written statement does not specifically set up that the Respondents are only co-lessors. The

Appellant himself did not even attempt to say so in his evidence in the present suit. Every circumstance and every reasonable inference point to the

conclusion that the Respondents are the exclusive owners of the suit premises, and that they were recognised and dealt with as landlords by the

Appellant during the past 12 years. In the circumstances the question of only some of the co-lessors seeking to terminate the tenancy and eject the

tenant without reference to the other co-lessors does not arise in this case. It follows the Respondents were entitled to determine the tenancy and

maintain the action in ejectment against the Appellant.

The other ground on which the validity of the notice is attacked is that it did not terminate with the end of a month of the tenancy. The argument

is put thus. The original lease was for a term of 11 months, and the tenancy was expressed to commence from 1st Jeth 2003. The lease therefore

fell within the first paragraph of Section 110 of the T.P. Act according to which in computing the period of 11 months 1st Jeth 2003 has to be

exploded. Consequently the period of 11 months fixed in the original lease expired only on the 1st day of Baisakh. 2004. The tenancy by holding

over commenced from the second day of Baisakh. A valid notice determining the tenancy by holding over should therefore terminate at the

midnight of the 1st of a month. But the notice given called upon the Appellant to quit by the midnight of the 31st Mar 2012 instead of the midnight

of the next day. Such a notice, it is argued, does not comply with the requirements of Section 106 of the T.P. Act and is, therefore, ineffective.

There would have been force in this contention if the notice had not said anything more; but the notice gave the option to the tenant to vacate

either by the midnight of 31-3-2012 or on the day when the ""time of the notice expires."" The intention of the notice was that the tenant should

vacate when the current month of the tenancy expired. The actual words employed however, if taken literally mean the day when the ""time of the

notice expires."" But this literal meaning will make only no sense of the notice. We must give the notice a national interpretation. No doubt there has

been a clumsy blundering in drawing up the notice. But this should not obscure the real intention and the true import of the notice. The notice was

not addressed to a stranger, but to a person who was a tenant of the suit premises for long years and who knew every detail relating to his holding

and who could therefore be expected to understand the true purport of the notice. If the words in the notice were ""when"" the time of the tenancy

expires"" or when the ""time of a valid notice expires,"" it would have been a valid notice and would have conveyed to the tenant that he should

vacate the premises at the end of the current month of the tenancy.

This is conceded by the Appellant's learned Counsel. But he strenuously urged that the notice as it stood did not comply with the express

requirement of Section 106 that it should terminate with the end of a month of the tenancy. The notice is written in Urdu and with the substitution or

addition of just one word it would have unmistakably expressed its true intention. But by some inadvertence or bungling a wrong word was

allowed to creep in or a right word was omitted. Does this go to the root of the matter and fatally affect the validity of the notice? I am or opinion it

does not.

The principles governing the construction of a notice to quit have been clearly pointed out by the Privy Council in Harihar Benerji v. Ramshashi

Roy AIR 1918 PC 102. Their Lordships Stated:

The principles governing the construction of notice to quit laid down by English cases are equally applicable to cases arising in India and they

establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them may still be good and effective in law; 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 those facts and circumstances; and further, they are to be

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

....

But these principles are applicable to notices containing mistakes honestly but inadvertently made and not to inaccuracies deliberately inserted for

fraudulent purposes.

It is nobody's case that the inaccurate statement in the notice was deliberately inserted, nor can it be said that the landlords had any fraudulent

intention whatever in doing so. It is beyond doubt an honest but inadvertent error.. It is equally clear that any person in the position of the;

Appellant would have correctly understood the true purport of the notice. In a case like this it will be wrong to penalise the landlords for the

inadvertent error they made in the notice.

Errors of more or less similar kind committed by landlords have come up for decision before courts. In Tika Ram and Another Vs. Sri Thakur

Dooji Maharaj, , a notice given to a lessee on 19-11-1927 stating that he should vacate the land on 13-5-1927. It was obviously absurd to call

upon a tenant to vacate on a day which expired months before the date of the notice itself. But a Division Bench of the Allahabad High Court held

that the notice was valid, for it was sufficient if the person on whom the notice was served could understand what was really meant by the notice.

The notice could in that case be understood only as calling upon the tenant to vacate on 13-5-1928.

In Ganga Prasad v. Prem Kumar Kohli AIR 1949 All 173 a notice was sent requiring the tenant to vacate the premises on 18-5-1944 or on

such date as ""your then current month of tenancy will end"" and it was found that the tenancy commenced from the 1st of each English month. It

was held that the Defendant well understood what was meant by the notice, namely, that he was called upon to vacate only on the termination of

the month of tenancy and that he was not required to vacate on 18-5-1944 if the month of tenancy did not terminate on that day and that the

notice, therefore, was proper. It was further pointed out that the object of a notice u/s 106 is only to allow a tenant sufficient time to vacate the

premises and that a notice should be liberally construed and that the only point to be considered to respect of a notice is whether the person on

whom it is served could understand what was really meant by it.

It has been pointed out in English decisions that even if a notice is ""lane and inaccurate,"" the courts must endeavour to give it a rational

interpretation. It is not necessary that a notice should be worded with the accuracy of a plea, and if its meaning can reasonably be gathered, or can

reasonably be understood by the tenant on whom it is served the intention of: the landlord who gives the notice, must if possible, be given effect to.

Applying the principles already adverted to the construction of the notice in question 1 am of the view that it must be understood as having

called upon the tenant to vacate the premises at the end of the current month of the tenancy. The tenant in this case could not reasonably have

understood it in any other sense. I am, therefore, unable to agree with the Appellant's contention that the notice to quit is bad in law.

It follows from the foregoing that the appeal fails and it must be dismissed with costs.