J.V. Krishnamachary vs P.V. Ramamoorthy and Others

Bellie, J.—This is defendant tenant''s second appeal. The suit is for eviction of him from the suit premises which he is occupying as a tenant.

The plaintiffs are the trustees of Sri Sundararaja Peru-mal Devasthanam, to which the suit property belongs. The suit was contested on various

grounds. The suit was decreed by the trial Court (District Munsif Court, Madurai Town), and the appeal filed by the defendant-tenant was

dismissed by the Subordinate Judge, Madurai.

In this second appeal the only question raised is that the notice of termination of tenancy issued by the plaintiffs has been waived by reason of

acceptance of rent by the plaintiff''s tendered by the defendant-tenant after the expiry of the notice. It is not in dispute that a notice of termination

has been given i.e., Ex.A.1 dated 28-1-1987 and it is a valid notice of termination. It is also not in dispute that subsequent to the expiry of the

notice the defendant-tenant sent rents by money orders and that has been received by the plaintiffs. The Courts below have held that mere receipt

of rents tendered by the tenant after the expiry of the notice without any intention on the part of the landlord to treat the tenancy subsisting is not

enough to constitute waiver. This finding of the courts below is questioned now.

It is argued on behalf of the appellant-tenant that inasmuch as it is admitted that rent has been received subsequent to the expiry of the notice, as

per the terms of Section 113 of the Transfer of Property Act, the notice is waived by the landlord and therefore it must be held that the tenancy is

subsisting and Ex.A.1 cannot be taken to be notice of termination of that subsisting tenancy and hence the suit is bad. Section 113 is as follows:

Waiver of notice to quit:- A notice given u/s 111, clause (h) is waived, with the express or implied consent of the person to whom it is given,

by any act on the part of, the person giving it showing an intention to treat the lease as subsisting.

A close reading of the section would show that notice of termination is waived by an act on the part of the landlord showing an intention to treat the

lease as subsisting. No doubt receiving rent sent by the tenant is an act on the part of the landlord, but the question is whether that act alone, bereft

of any intention to treat the lease as subsisting, will constitute waiver. That intention can be expressed or implied from the circumstances. After the

termination of tenancy there is no question of payment of rent but the tenant is liable to pay damages as long as he does not vacate the premises in

pursuance of the notice. The landlord may take action against him in pursuance of the notice soon after the expiry of the notice or later after some

time. In any case the tenancy is at an end. If in the meanwhile the tenant sends money by money order terming it to be rent and if the landlord

receives it, it does not necessarily mean that the landlord receives rent treating the tenancy as subsisting. As said above, the tenant will be liable to

pay damages for illegally occupying the premises and if the landlord has received the money sent by money order by the tenant as rent it is more

probable that the landlord has received it for damages payable by the tenant. Therefore unless there is something more, apart from the receipt of

money sent by money order by the tenant, to show that the landlord received that money treating the tenancy subsisting it cannot be said that he

has waived the notice.

If money is tendered personally by the tenant to the landlord as rent and it is received by the landlord and if he has not said that he was receiving

the money not as rent for the premises but as damages the inference could be that he received the money as rent treating the lease as subsisting. It

is very significant to, note that the section reads to the effect that the waiver must be with the express or implied consent of the person to whom the

notice of termination is given. This only shows that for waiver there must be meeting of the minds or consent by both the lessor and the lessee.

Therefore only from receipt of money sent by the tenant as rent to the landlord after the expiry of the'' notice of termination it cannot be held that

there is waiver of notice of termination. Of course in the Illustration (a) u/s 113 it is stated to the effect that if B, the lessee, tenders rent and A, the

lessor, accepts it after the expiry of the notice, the notice is waived. But this illustration must be read in consonance with the terms of the section

and not in isolation. The words ""B tenders and A accepts rent"" in the illustration must be understood as B tenders money as rent and A accepts the

money treating the same as rent which means that he treats the lease as subsisting. This point was at issue in Saleh Bros. Vs. K. Rajendran and

Another, , K.S. Abdulla v. S. Srinivasan 84 L.W. 431, and C. Sundaram Vs. V.T. Abdul Ghani, and in all these judgments it has been held, as

held above by me, that mere receipt of rent alone is not sufficient and there must be an intention to treat the lease as subsisting. Therefore there is

no merit in the contention raised by the appellant-tenant. Hence the second appeal is dismissed as devoid of merits. The appellant shall pay costs

to the respondents.