Krishna Beharilal vs Hariram

P.R. Sharma, J.—This second appeal has been preferred by the plaintiff-landlord whose suit for ejectment was dismissed by the lower appellate Court.

The facts necessary for the disposal of this appeal may briefly be stated thus. The defendant Chaturbhuj took along with a room on rent from the plaintiff on the rent of Rs. 40/- per month. The defendant having fallen in arrears of rent, a notice was served on him on 12-9-1955 calling upon him to vacate the premises before 15-10-1955.

The lower appellate Court held that the tenancy commenced from the 11th of every month and that the notice to quit before the termination of the current month of tenancy was legally invalid. I do not feel called upon to determine whether the grounds on which the lower appellate Court has based its finding on this point are legally correct. It appears that the lower appellate Court has altogether overlooked the fact that the rent-note in the present case contains a distinct clause that the landlord could whenever he so desired require the defendant to quit after giving him one month''s notice. Section 106 of the Transfer of Property Act cannot apply to those cases where there is a contract at variance with its provisions. In the present case there being a specific term in the contract of tenancy according to which a month''s notice to the tenant was sufficient for his eviction, the provisions of Sec. 106 of the Transfer of Property Act would have no application.

It was contended by the learned counsel for the respondent that the notice was not served on Chaturbhuj personally but that his son Hariram received it. The learned counsel contended that the use of the words "upon him" in S. 4-A of the Accommodation Control Act indicates that notice of demand should be served personally upon the tenant. In a case governed by Sec. 106 of the Transfer of Property Act it was held by their Lordships of the Privy Council, in Hari Har Benerjee vs. Ram sahai Roy (AIR 1918 P.C. 102) that vicarious delivery of the notice at the residence of the tenant is sufficient. The fact that Chaturbhuj and his son Hariram were living in the same premises is not disputed. They were as a matter of fact both sued as defendants in the present suit. By service of a notice upon the tenant what is meant is that the notice should actually reach his hands. If an adult male member of the family accepts service of the notice, it can be presumed that the notice reached the addressee. To insist upon personal service on the tenant would require an addition of the word "personally" before the word "upon him" in S. 4-A of the Accommodation Control Act. It is not possible by a process of interpretation to introduce a change in the law of such vital character.

I would, therefore, hold that service of the notice on Hariram was for all practical purposes service on Chaturbhuj. The fact that the father and son were carrying on business jointly in the shop would lend further support to this conclusion.

Lastly it was contended that Chaturbhuj having died during the peudency of the suit his legal representatives should have been brought onrecord. An application was made by the plaintiff after Chaturbhuj''s demise that the suit should continue against Hariram alone. The premises in question were used as a shop which was run by a joint family firm of which Hariram and Chaturbhuj were the owners. On the death of Chaturbhuj, Hariram was the person in exclusive control of the business of the firm. This point having besides not been urged before the lower appellate Court cannot be considered at this stage.

This appeal is, therefore, allowed. The judgment and decree passed by the lower appellate Court are set aside and the decree passed by the trial Court for ejectment is hereby restored. There shall be no order as to costs.