K. Kuppusamy vs Sri Vembuli Amman Temple

R. Banumathi, J.—This Second Appeal arises out of the concurrent Judgment and Decree of the Courts below - Principal District Judge,

Vellore, made in A.S. No. 24/2001, dated 28.09.2001. confirming the Judgment and Decree made in O.S. No. 1023/1985 by the Principal

District Munsif, Vellore dated 30.03.2001. Unsuccessful Defendant is the Appellant. Plaintiff is a temple Sri Vembuliamman Temple. Case of the

Plaintiff Temple is that the suit premises Shop bearing D. No. 157. Long Bazaar, Vellore was let out to the Defendant for a monthly rent of Rs.

225/-. The Defendant has been running a flour mill shop therein. Tenancy between the Plaintiff temple and the Defendant is an oral tenancy. For

insufficiency of space, for keeping articles including the temple Vaganam, the Plaintiff Temple requires the suit premises for own use and

occupation. The Plaintiff temple issued the statutory notice u/s 106 of the Transfer of Property Act, on 29.04.1985. The said notice was issued to

the Defendant giving clear fifteen days'' notice. The Defendant received the notice and issued a reply on 04.05.1985, containing false allegations.

The registered notice subsequently was returned unserved on 08.05.1985. The tenancy was terminated by giving fifteen days'' clear notice ending

with English Calendar month 31.05.1985. Since the Defendant received the said notice before 04.05.1985, the Defendant is bound to hand over

vacant possession of the demised premises to the Plaintiff on 01.06.1985. Since the Defendant failed to vacate the premises, the Plaintiff has filed

the suit for eviction. The Plaintiff being a temple, the provisions of Rent Control Act does not apply to the tenancy.

Opposing the suit for eviction, the tenant - Defendant filed the Written Statement contending that originally suit premises was old and was in

dilapidated condition without any roof and unfit for occupation. After being let out, the Defendant had put up new construction and the present

superstructure does not belong to the Plaintiff temple. The Defendant is entitled to claim the benefits under the Madras City Tenants Protection

Act. The Defendant is also willing to pay market price of the suit property to the Plaintiff Temple. The Defendant is now paying rent of a sum of

Rs. 225/- per month. The Defendant is earning his livelihood only from the suit property. The requirement of the Plaintiff temple is not bonafides.

Notice to quit is not in accordance with law. Since the premises was let out for manufacturing purpose, in law, six months'' notice ought to have

been given. For want of proper notice, the suit is liable to be dismissed. Since the Defendant is doing business in the premises, if he is evicted, it

would cause him irreparable loss. Since there is no bonafides requirement, the suit is liable to be dismissed with cost.

To substantiate their case, on behalf of the Plaintiff, PW-1, a Clerk attached to the Plaintiff Temple was examined. Exs.A-1 to A-14 were

marked. On behalf of the Defendants, D.W.s 1 and 2 were examined. Exs.C-1 and C-2 were marked. Upon consideration of the evidence, the

trial court referring to the rental receipts Exs.A-5, A-6 and A-11 and a number of other decisions, held that the lease is from month to month. The

trial court had also found that the temple had let out the premises including the building and hence the provisions of the Madras City Tenant''s

Protection Act is not applicable. Finding that the building belongs to the suit Temple, administered by the Hindu Religious and Charitable

Endowments, the trial court found that the demised premises is required for keeping the articles of the temple and Vaganam and ordered eviction.

Confirming the findings of the trial court, the learned District Judge referring to Exs.A-5, A-6, A-11 and A-14 held that those documents clearly

establish that the tenancy is only on monthly basis. Pointing out to Exs.A-11 to A-14, (wherein the Appellant himself has admitted his readiness to

pay the rent on monthly wise), the learned District Judge negatived the plea of the Appellant that the tenancy was a yearly tenancy. The contention

raised by the Appellant that the requirement of Section 106 of the Transfer of Property Act has not been complied with was negatived by the First

Appellate Court also. The First Appellate Court has also relied upon Shri Janki Devi Bhagat Trust, Agra Vs. Ram Swarup Jain (dead) by LRs., .

Aggrieved over the concurrent findings of the Courts below, the Appellant Tenant has preferred this Second Appeal. The Second Appeal was

admitted on the following substantial questions of law

When the Courts below having found the admitted case that lease of the property being immovable and also for manufacturing purposes which

u/s 106 of the Transfer of Property Act, shall be deemed to be lease from year to year terminable on the part of Lessor or Lessee by six months

notice, whether the reasoning and conclusion of the Court below that the lease is to be considered as monthly tenancy and hence Sec. 106 of

Transfer of Property Act is not applicable, is sustainable in law ?

When the Courts below has seen Sec.106 of T.P. Act which contain three main ingredients i.e. a. In the absence of a contract to the contrary;

b. Lease of immovable property; and c. lease for manufacturing purposes; and When all these conditions are satisfied u/s 106 of Transfer of

Property Act, the Courts below should have held the six months notice is absolutely necessary and not fifteen days notice ?

In the facts and circumstances of the case and the decision cited u/s 106 T.P. Act, whether the notice issued under Ex.A-1 dated 29.04.1985 is

valid in law ?

The learned counsel for the Appellant Tenant has contended that the tenancy being for manufacturing purpose, which is from year to year

terminable only by six months'' notice. The learned counsel for the Appellant further contended that there is no proper compliance of Section 106

of the Transfer of Property Act and contended that Ex.A-1 is not a valid Notice. Reiterating that the lease had been for manufacturing purpose, it

is submitted that in the absence of contract to the contrary, as per section 106 of the Transfer of Property Act, six months notice for termination of

the tenancy is necessary. In this regard, reliance has been placed upon AIR 1971 Mysore 365 and S.S.K.S. Baskaran (died) and 4 others Vs.

N.Thirugnanasundaram Pillai, . It is the contention of the Appellant that when the lease is of immovable property, let out for manufacturing

purposes, the Courts below erred in saying that Ex.A-1 satisfies the conditions u/s 106 of the T.P. Act.

Placing reliance upon JT 1995 SC 185, the learned counsel for the Respondent/Plaintiff Temple has contended that if the lease is not from year

to year, the termination of lease does not require six months notice. Drawing the attention of the Court to the findings of the Courts below, the

learned counsel for the Respondent/Plaintiff Temple has submitted that the Courts below have rightly referred to the records and on that basis,

rightly found that the lease is only on a monthly basis and that Ex.A-1 - Notice is valid under law. It is further submitted that when the concurrent

findings of the Courts below is that the lease is from month to month and that six months time of notice is not required, that concurrent finding does

not suffer from serious error of law calling for interference.

8.The suit property is the shop premises in Vellore. Long Bazaar, bearing Door No. 157. The shop was let out to the Defendant on an oral lease.

Rent was steadily enhanced and at the time of termination of the lease, the rent was Rs. 225/- per month. Case of the Defendant was that he had

put up new construction and the superstructure does not belong to the Plaintiff Temple. According to him, he is entitled to the benefits of the

Madras City Tenants Protection Act. In his evidence, PW-1 Clerk of the Plaintiff Temple has stated that the premises with the superstructure was

let out to the Defendant. The Defendant has not produced any document showing that he has put up the superstructure. Exs.A-6 and A-7 are the

receipts for property tax for the demised property for 1968 and 1974-751 for D. No. 157 evidence showing that the assessment is levied in the

name of Plaintiff Temple by its Executive Officer is the assessee for D. No. 157. The Plaintiff''s Temple had been issued Ex.A-8, Special Notice

Of Property Tax New Assessment Or Amendment for 1993-94/2. If really the Defendant had put up the superstructure, the Defendant would

have certainly raised objection tor the levy of house tax and for issuance of revised property Tax Assessment in the name of the Plaintiff Temple.

The conduct of the Defendant falsifies his contention that he has put up the superstructure.

In Exs.A-4. A-11 and A-14 representations to the Executive Officer of the Plaintiff Temple, the Plaintiff has clearly stated that he had only

repaired the superstructure. In those representations he has Stated,

When the Defendant himself has stated that he has only renovated the superstructure, his contention that he has put up the superstructure for

running rice mill has no basis.

Demonstrably, the Plaintiff Temple is the owner of the superstructure. When the Defendant has not put up the superstructure, the Defendant

cannot claim benefits under the Madras City Tenants Protection Act. Amendment Act 2 of 1996 has excluded the lands owned by Religious

Institutions and Religious Charities belonging to Hindu, Muslim. Christian and other Religious Institutions. The Amendment Act takes away the

benefit of Section 3. claiming the compensation and benefit of Section 9 Right to purchase the site. The Constitutional validity of Act 2 of 1996 has

been upheld by the Full Bench of this Court reported in N. Sreedharan Nair and Others Vs. Mottaipatti Chinna Pallivasal Muslim Jamath and

Others, . Rightly, the Courts below have recorded the concurrent finding that the Defendant is not entitled to the benefits of the Madras City

Tenants Protection Act. Rightly, that concurrent finding is not assailed by the Appellant/Defendant.

The main contention put forth is that Ex.A-1 Notice issued is not in accordance with Sec. 106, T.P. Act and is not valid. Before instituting the

suit for eviction, the Plaintiff Temple issued Ex.A-1 -Notice (dated 29.04.1985), terminating the tenancy by giving the Defendant fifteen days

notice ending with English Calendar month i.e. 31.05.1985. The Defendant was called upon to evict the premises on 31.05.1985 and hand over

vacant possession of the same to the Plaintiff Temple on 01.06.1985. Ex.A-1 Notice was returned. Though the notice was returned, the Plaintiff

had sent Ex.A-4 - Reply (Dated 4.5.1985). Thus Ex.A-1 Notice issued on 29.04.1985 terminates the tenancy with the English Calendar Month

ending with 31.05.1985. Issuance of fifteen days'' notice for terminating the tenancy is mainly objected on the ground that the lease had been for

manufacturing purposes for running the flour mill. According to the Defendant, the lease was for manufacturing purposes and u/s 106 of Transfer of

Property Act. the tenancy shall be deemed to be from year to year and six months'' clear notice is required for terminating the tenancy.

In support of the contention that in a lease for manufacturing purpose, notice for terminating tenancy is to be of six months duration, the learned

counsel for the Appellant/Tenant has relied upon AIR 1971 Mysore 365. [John Augustine Peter Mirande and another Vs. Dalhu Naik] wherein

the Court has held :

Where the tenant was carrying on bakery business and subsequently installed a saw mill in the premises with the consent of the landlord the lease

must be held to be one for a manufacturing purpose and notice for terminating such lease must be of six months duration and not of fifteen days

duration.

Contending that flour mill is a manufacturing purpose, for which six month clear notice is necessary, on behalf of the Defendant, reliance is also

placed upon Baluchamy Vs. Thayammal, . Explaining the ingredients of ""manufacturing purposes"", the Supreme Court has held that running flour

mill is a manufacturing purpose and in the absence of contract to the contrary, the lease was one from year to year, that could be terminated only

by giving six months notice u/s 106 of the Transfer of Property Act. The decision of the Supreme Court is as under::

The tests for determining whether a lease is granted for purpose of ""manufacturing process"" are as follows:-

That it must be proved that a certain commodity was produced;

That the process of production must involve either labour or machinery;

That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put

into a different use. In other words, the commodity should be so transformed so as to lose its original character. AIR 1973 SC 425; AIR 1968 SC

922 and AIR 1963 SC 791, Rel. on AIR 1946 Cal 317 and AIR 1971 Mys. 365 .

In the instant case what happened was that what was transformed, by the manufacturing process which involved both labour and machinery into

flour. Thus in the instant case all the three tests have been fully satisfied and thus the lease was one for manufacturing process and could be

terminated only by giving six months notice u/s 106 of the T.P. Act.

For the similar proposition, reliance is also placed upon S.S.K.S. Baskaran (died) and 4 others Vs. N.Thirugnanasundaram Pillai, wherein D.

Raju. J. has held that in the absence of rental agreement between the parties, the suit property let out for running saw mill is the lease from year to

year.

In the light of the contentions and the above decision, what is required to be considered is whether the leas e in the present case was a lease

for manufacturing purpose and whether the lease was a oral or monthly lease as per the terms of the oral lease. To appreciate the contentious

points urged, it is necessary to extract Section 106 of Transfer of Property Act:

Duration of certain leases in absence of written contract or local usage: In the absence of a contract or local law or usage to the contrary, a

lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of

lessor or lessee, by six months'' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to

month, terminable, on the part of either lessor or lessee, by fifteen days'' notice.

Section 106 of Transfer of Property Act would be applicable only in the absence of a contract. Emphasis is on the words, ""in the absence of a

contract to the contrary"". Only if there is no contract, or no lease agreement between the parties, the lease for immovable property or I

manufacturing purpose shall be deemed I to be lease from year to year (as per Sec. 106 of T.P. Act). Overwhelming evidence is available showing

that the lease is monthly lease. Let us elaborate the same.

Admittedly, the tenancy is a oral one. In Ex.A-1 Notice, it is clearly stated that the tenancy is a oral one and according to the English Calendar

month, in Ex.A-4 - Reply Notice. Defendant has not denied the tenancy of English Calendar Month. In Ex.A-4 Notice, the Defendant has also

stated that the rent is payable per month. Contending that the present rent of Rs. 225/- is very high, the Defendant has stated ::

The original rent of Rs. 25/- per mensem was gradually increased to Rs. 100/- in 1975. Thereafter, after exchange of notices the present rent is Rs.

225/- which is very high."" Thus the Defendant himself has admitted that the tenancy is a monthly tenancy and the rent is payable per month.

Likewise, in Exs.A-11 and A-14, representations to the Executive Officer, the Defendant has clearly stated about the monthly rent payable :

Thus the statement of the Defendant in Exs. A11 and A-14 clearly show that the lease is a monthly lease. When there is clear contract/lease

agreement between the parties for the monthly lease, it is not open to the Defendant to invoke the deeming provision of Section 106 T.P. Act,

contending that lease is for manufacturing purpose and that notice for termination of such lease must be of six months'' duration, that contention has

been rightly negatived by the Courts below.

It is relevant to note that the contention of the Defendant that the lease could be terminated only by notice of six months'' duration is neither put

forth in Ex.A-4 - Reply Notice nor during the trial. In his evidence. PW-1 Clerk of the Plaintiff Temple has stated that

On this aspect. PW-1 was not cross-examined that the tenancy is only an annual lease and for terminating the same, notice of six months duration

is necessary. He was neither cross examined nor suggestions were put to him on that aspect. In fact, as discussed earlier, the monthly lease was

admitted by the Defendant. During the entire cross-examination of PW-1. the only suggestion was that the Defendant was entitled to the benefit of

the Madras City Tenants Protection Act. Referring to Exs.A-4. A-11 and A-14, the Courts below have rightly held that the tenancy is only

monthly tenancy. In view of the lease agreement between the parties, the deeming provision of Sec. 106 Transfer of Property Act cannot be

invoked.

When the lease is from month to month, the deeming provision of Sec. 106 T.P. Act cannot be invoked. In JT 1995 (7) SC 105. [Shri Junki

Devi Bhagat Trust. Agra Vs. Rum Swarup Jain (dead by L.Rs.], the Supreme Court has held:

In the present case there is a clear finding to the effect that the lease in question was not from year to year or for a period exceeding one year.

Therefore, even though the lease may be for a manufacturing purpose, since the lease was not from year lo year, six months notice was not

required. A manufacturing lease which is not from year to year does not require six months'' notice of termination. It will fall in the second half of

Sec.106. requiring fifteen days'' notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by

fifteen days'' notice. Hence the notice in the present case is valid notice to quit. The High Court, having come to the conclusion that the lease was

not for a period exceeding one year, and was not a lease from year to year erred in holding that six months'' notice to quit was required. Such a

notice is required, provided there is no contract to the contrary, only when a manufacturing lease is. or is deemed to be, from year to year. This not

being the case, the lease is terminable by fifteen days'' notice even if the lease is a manufacturing lease.

(underlining added).

The above principle squarely applies to the case in hand.

20.The lease between the Plaintiff temple and the Defendant has been only on monthly basis. The lease was terminated by issuance of Ex.A-1

notice dated 29.04.1996. giving fifteen days'' clear notice terminating the tenancy by the end of May 1995. Fifteen days"" clear notice was given for

terminating the tenancy. Hence Ex.A-1 is well in accordance with Sec. 106 T.P. Act. No valid objection could be raised that the notice issued is in

accordance with Sec. 106 T.P. Act.

The Courts below have rightly appreciated the evidence and recorded well balanced reasonings. There is no serious or substantial error either

in the assessment of evidence or the approach of the trial court. The concurrent findings of the Courts below do not suffer from any serious error

warranting interference. This Second Appeal has no merits and is bound to fail. Therefore, Judgment and Decree passed by the Principal District

Judge. Vellore, in A.S. No. 24/2001, dated 28.09.2001, confirming the Judgment and Decree made in O.S. No. 1023/1985 by the Principal

District Munsif, Vellore Dated 30.03.2001 are confirmed and this Second Appeal is dismissed with the cost of the Plaintiff Temple. Two months

time is granted to the Appellant/Defendant to deliver vacant possession of the Plaintiff Temple.