S. Mariammal 6 others vs Somavalli Achi

S.S. Subramani, J.—Legal heirs of the defendant are the appellants before this Court. The Suit filed by the plaintiff was one for recovery of

possession on termination of tenancy.

Material averments are as follows:

Admittedly plaintiff is the owner of the building and the same was let out to the deceased defendant as per rent deed dated 11-4-1969. The agreed

rent was Rs. 950/- per mensem and the lease was for a term of three years. It is said that it is a composite lease and, therefore, the provisions of

the Tamil Nadu Buildings (Lease and Rent Control) Act will not apply. It is further said that rent must be paid according to English calendar month.

It is further averred in the plaint that the tenancy is as per English calendar month, and every month''s rent was agreed to be paid on or before the

10th of the succeeding month. Subsequently rent was increased to Rs. 1,000/- and the deceased defendant was paying the rent, and the rent deed

was kept intact. It is said that after the expiry of the term, the defendant (since deceased) was allowed to continue as tenant holding over on the

same terms. Finally, they say that a quit notice was issued on 3-11-19(sic)), terminating the tenancy by the end of November, 1980, and the

defendant was directed to hand over possession by 1st December 1980. Since the defendant failed to hand over possession, suit was filed, for

recovery of possession. After the death of the defendant, his legal representatives were impleaded, who are appellants before this Court in this

Second Appeal.

In the written statement filed by the defendant, he contended that the suit is not maintainable, and he also said that he received a notice, for

which he sent a reply also. In paragraph 14, he said that the notice issued by the landlord is not in accordance with law, and he ought to have been

given a three year period to terminate the tenancy. After the death of the defendant, his legal representatives were impleaded, and they filed an

additional written statement and it was also accepted.

In the additional written statement, they contended that the notice terminating the tenancy is not in accordance with S. 105of the Transfer of

Property Act. According to them, as per the terms of the lease deed, the tenancy months is from 13-4-1969 to 12-4-1972. So, the tenancy

commences on the 13th of every English month and ends with the 12th of the next English month. Hence, the notice to quit treating the tenancy as

starting from the 1st date of English month is clearly invalid in law and there is no proper termination of tenancy. It is also said that since there is no

valid termination, recovery cannot be had.

Both the courts below came to the conclusion that the notice issued is proper. Both the courts below were of the view that since the rent was

being paid according to English calendar month, the termination notice is in tune with Sec. 106of the Transfer of Property Act and, therefore, the

appellants are bound to surrender the building. The concurrent decisions are now challenged in this Second Appeal.

The following substantial question of law was raised for consideration at the time of admission of the Second Appeal:

Whether the notice dated 3-11-1980 is in accordance with the provisions of Sec. 106of the Transfer of Property Act.

Ex. A-1 is the rental agreement dated 11-4-1969. It is written in Tamil, and the document bears the date 20th Panguni, corresponding to 11-4-

1969. It says that the tenancy will commence from 13-4-1969 and will expire on 12-4-1972. The tenant has paid a sum of Rs. 10,000/- as

advance. It further provides that the rent has to be paid on or before the 10th of the succeeding month. Clause 5 of the agreement provides that if

the rent is not paid by the end of the succeeding month, the tenant is liable to pay interest at 12% per annum on the arrears. From a reading of the

entire deed, I do not find that there is any contract to the contrary incorporated in the deed. It is not disputed that after the expiry of the term, the

deceased defendant was allowed to continue in the premises, except for the enhancement of rent. Even the plaint allegations are clear in that

regard. It is also admitted that the deceased defendant was contemning in the premises on the same terms and conditions as a tenant holding over.

Both the courts below have come to the conclusion that the rent is payable according to English calendar month. The tenancy also continued in the

same way and, therefore, the termination notice is proper. Ex. A-3 is the legal notice terminating the tenancy. It was issued on 9-10-1980. Two

notices were issued and both are marked as Ex. A-3. One is dated 9-10-1980, and the other is dated 3.11.1980. In the notice dated 19.10.1980

it is stated thus:

Therefore my client hereby terminates your tenancy with the end of October, 1980 and you are directed to hand over the possession without any

let or hindrance to my client on 1st November, 1980 failing which a suit for ejectment will be filed against you and you will be held liable for all the

costs and damages.

In the notice dated 3-11-1980, it is stated thus:

Therefore my client hereby terminates your tenancy with the end of November, 1980 and you are directed to hand over the vacant possession

without any let or hindrance to my client on 1st December, 1980 failing which a suit for ejectment will be filed against you and you will be held

liable for all the costs and damages.

If the tenancy in is accordance with the English calendar month the notice is in accordance with law. Therefore, the question to be considered is,

whether Ex. A-3 notice amounts to valid termination notice.

Sec. 106of the Transfer of Property Act says thus:

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 either lessor or lessee, by six months notice expiring with the end of a month of

the tenancy.

Every notice under this Section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is

intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or is (if such

tender or delivery is not practicable) affixed to a conspicuous part of the property.

Sec. 110of the Transfer of Property Act says as to when a tenancy will commence. It reads thus:

Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall

be excluded. Where no day of commencement is named, the time so limited begins from making of the lease.

Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the

whole anniversary of the day from which such time commences.

Where the time so limited is expressed to be terminable before its expiration, and the lease admits no mention at whose option it is so terminable,

the lessee, and not the lessor, shall have such option.

In one of the earliest reports reported in AIR 1932 279 (Privy Council) the tenancy began from 1st June, 1991 for a term of four years thence

next ensuing. In so far as payment of rent is concerned, the agreement provides thus:

Yielding and paying therefore the clear monthly rent or sum of Rs. 1000/- such rent to be paid on or before the seventh day of the month

succeeding the month for which it is due the first payment being the rent for the month of June, 1921 to be paid on or before 7th July, 1921 and so

on.

That lease expired, and the lessee continued to occupy the premises as tenant holding over. On 1st February, 1928, a notice was issued with clear

one month to take effect from that day. Their Lordships said construing S. 110read with S. 106of the Transfer of Property Act, date of

commencement of the tenancy, i.e., 1-6-1921 had to be excluded. In view of the agreement for payment of rent, a contention was taken before

the Privy Council that the operation of S. 110of the Act is excluded and, therefore, the notice issued is not proper. Commenting on the same, it

was held thus:

...It clearly is not an agreement expressly excluding S. 110, because it has nothing to do with fixing the period covered by the term. It merely

provides for the payment of the rent. Mr. Dunne''s argument must really amount to this: that because he suggests there is an inconsistency between

the provision with regard to the payment of rent and the provision with regard to the length of the term, there must be implied an agreement to

exclude the operation of S. 110. Now the answer seems to be that the Section in terms applies unless there is an express agreement to the

contrary, and no express agreement to the contrary, can, in fact, be found in the lease in question...

In Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, a similar question came for consideration. Their Lordships were

considering the provisions of Bombay Rents Hotel and Lodging House and Lodging House Rates (Control) Act (57 of 1947). The validity of a

notice issued under S.12of the said Act was the subject matter under consideration. In that case, the tenant held the premises, agreeing to pay Rs.

75/- per mensem and the amount was paid according to Indian calendar month. Tenancy was terminated, asking the tenant to quit on the last day

of the month of tenancy which was Kartak Vad 30 of Samvat Year 2011. Before Court, it was contended (1) that the month of tenancy was not

by the Indian Calendar, but was by the British Calendar and that the Courts below had ignored evidence in that regard. (2) Assuming that the

month of tenancy was by the Indian Calendar according to the lease, it would be deemed to be by the British Calendar in view of the provisions of

S. 27of the Act. (3) As the arrears of rent had been paid within two months of the institution of the suit, the appellant be deemed to be ready and

willing to pay the rent and that therefore the landlord was not entitled to recover possession of the premises. (4) It is discretionary with the Court to

pass a decree for ejectment in a case under S.12 (3) (a) of the Act, as the expression used in that sub-clause is the court may pass a decree for

eviction in any such suit for recovery of possession''. Sec. 27of the Bombay Act referred to above read thus:

(1) Notwithstanding anything contained in any law for the time being in force or any contract, custom or local usage to the contrary, rent payable

by the month or year or portion of a year shall be recovered according to the British Calendar.

(2) The State Government may prescribe the manner in which rent recoverable according to any other calendar before the coming into operation

of this Act shall be calculated and charged in terms of the British Calendar.

It is on basis on S. 27(extracted above) the Courts below in that case held that the tenancy was in accordance with British calendar since the rent

was payable according to British Calendar month after commencement of that Act. The question before the Supreme Court was, what is the

impact of S. 27on the commencement of the tenancy. Whether it was in accordance within Indian Calendar month, or the monthly tenancy will

have to be calculated on the basis of rent payable which is in accordance with British Calendar month. Commenting on the same, their Lordships

held thus:

There is nothing in the aforesaid rule or the section about the conversion of the month of the tenancy from the month according to the Hindu

Calendar to the month according to the British Calendar, they only provide for the recoverability of the rent according to the British Calendar.

Since the enforcement of the Act on February 13, 1948, the monthly rent would be for the month according to the British Calendar. The monthly

rent could be recovered after the expiry of a month from that date or the rent for the period from the 13th February to the end of the month could

be recovered at the monthly rate and thereafter after the ""expiry of each calendar month. There is nothing in the section or the rule in regard to the

date from which the month for recovery of rent should commence. This provision was made, probably, as a corollary to the statute providing for

standard rents. Standard rents necessitate standard months. There are a number of calendars in use in this country. The Hindu themselves use

several calendars. The Muslims use a different one. Some calendars are used for particular purposes. It appears to be for the sake of uniformity

and standardisation that a common calendar was to govern the period of the month of the tenancy and the date for the recovery of the rent. Rule 4

provided a procedure for adjustment of the recovery of the rent according to calendar other than the British Calendar, and further provided that

the rent chargeable per month, according to the British calendar, would not exceed the rent which was chargeable followed immediately before

that date. In the absence of any specific provision in the Act with respect to any alternation to be made in the period of the month of the tenancy, it

cannot be held merely on the basis of an alteration in the ""period for the recovery of rent that the monthly period of tenancy had also been changed.

The tenancy can be from month to month and the recoverability of the rent may not be from month to month and may under the contract, be based

on any period say, a quarter or half year or a year. There is nothing in law to make the month for the period of recovering rent synchronize with the

period of the month of the tenancy. The tenancy must start on a particular date, and consequently, it 8 month would be the month from date,

according to the calendar followed. The months of tenancy according to that calendar are settled by contract from the commencement of the

tenancy. The tenancy under a lease for a certain period starts from a certain date, be it according to the British calendar or any other Calendar.

The period of lease, and consequently the tenancy, comes to an end at the expiry of that period according to the calendar followed by the parties

in fixing the commencement of the tenancy. A lease, even according to the British Calendar can start from ""any intermediate date, of the calendar

month. There is nothing in S. 27to indicate that the month of the tenancy to such a lease will start from the first of a regular month. S. 27simply

states that the rent would be recovered according to the British Calendar without fixing the first date of the month as the date from which the

month, for the purposes of the recovery of the rent, would be counted. It follows that the month of the tenancy which commences on the 14th of a

month, would be from the 14th to the 13th of the next month, according to the British Calendar. The rent would be recoverable with respect to this

period of a month. No interference with any such term of the contract has been made by any provision of the Act and therefore we hold that the

provisions of S.27of the Act and R.4 of the Rules, do not in any way convert the month of the tenancy according to the Indian Calendar to the

month of the British Calendar.

The High Court said in the judgment that Mr. Parghi, who was appearing for the appellant, was unable to cite any decision in support of the

contention raised by him. Our attention however, has been drawn to two cases decided by the Bombay High Court. They are Civil Revision

Application Nos. 247 of 1956 and 1583 of 1960 decided by Dixit and Tendulkar JJ. and Patwardhan J., on 22-2-1957 and 16-8-1961

respectively. The latter decision had to follow the earlier one. In the earlier case, the notice to quit required the tenant to give possession on May 1,

1953. The tenancy had commenced according to the Hindu Calendar. The notice was given according to the British Calendar. The High Court

held the notice to be valid, agreeing with the contention that the effect of the provisions of S.27of the Act was to make the tenancy, which was

originally according to the Hindu Calendar, a tenancy according to the British Calendar. The ratio of the decision, in the words of the learned

Judges, is:

How rent is payable for occupation by the defendant and, therefore, the tenancy must be deemed to be one according to the British Calendar from

the ""first of the month to the end of the month. . . Here is a local law which by Sec.27makes the tenancy as one according to the British Calendar.

We are of opinion that this view is wrong, We, therefore, hold that the notice to quit issued to the appellant was therefore a valid notice as held by

the Court below and determined the tenancy of the appellant.

(Emphasis supplied)

The decision reported in Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, Vwas followed by this Court in the judgment

reported in 1976 II - M.L.J. 107 - 89 L.W.48 (Ramachandran v. Lakshminarayanaswami). In paragraphs 17 and 18 of the said judgment, a

learned Judge of this Court has elaborated the point thus:

Even if the defendant is not entitled to six months notice and he is entitled to only is days notice, undoubtedly the notice in this case is not proper

under S. 106 of the Transfer of Property Act. If the tenancy is a monthly one, there can be no doubt the month of the tenancy is from 9th of a

particular month and ending with the 8th of the succeeding month as per the English Calendar. The lease deed, as already seen is dated 9th

November, 1959 and it says that the monthly rent is payable by the 10th of the succeeding month. The contention on behalf of the plaintiff is that

there is an averment in the plaint that the defendant was paying the rent according to the calendar month and there is no denial of such averment

and that therefore it must be held that the month of tenancy is from the first of the calendar month. It is clear that in spite of the abovesaid assertion

in the plaint admittedly the defendant had never paid rent according to calendar month. The only payment he made was on 31st March, 1961 for

the accrued rents from the date of the lease deed upto the date of payment. However, as the plaintiff has averred that the defendant had been

paying rent according to calendar month and such averment has not been transversed by the written statement, I may take for the present purpose

that rent was being paid according to the calendar month. But that fact would not in any way alter the month of tenancy. The month of tenancy is

from the 9th of a particular month to the 8th of the succeeding month. The mere fact that the rent was being paid not according to the month of

tenancy but according to the calendar month would not alter the month of tenancy itself, as one from the first of the calendar month.

Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, is a case where the month of tenancy was according to Hindu calendar,

but the rent was being paid according to the British Calendar. The Gujarat High Court which heard the case earlier held that as rent is payable

according to English Calendar, the tenancy must be deemed to be one according to the said calendar from the first of the month to the end of the

month. The Supreme Court pointed out that the view of the Gujarat High Court is wrong At Page 447, the Supreme Court observed:

The tenancy can be from month to month and the recoverability of the rent may not be from month to month, and may, under the contract, be

based on any period say, a quarter or half year or a year. There is nothing in law to make the month for the period of recovering rent,

synchronizing with the period of the month of the tenancy. The tenancy must start by a particular date and consequently its month would be the

month from that date, according to the calendar followed.

Therefore, assuming that the defendant had been paying rent according to calendar month, the month of tenancy is certainly not from the first of the

calendar month till the end of the said month, but it is only as provided in the document itself. There can be not doubt that the lease commenced on

the 9th of a particular month and therefore the month of tenancy would be from the 9th of a particular month till the 8th of the succeeding month.

The notice in this case terminated the tenancy by the midnight of 31st May 1965. That is certainly not in accordance with S. 106of the Transfer of

Property Act as 15 days notice ending with the month of tenancy has not been given.

A Division Bench of the Calcutta High Court has held as follows in the decision reported in Carrara Marble and Terrazo Co. Ltd. Vs. Charu

Chandra Guha,

Where a tenant after the expiry of the term of his lease on the 25th of the English Calendar month continued to hold over the premises with the

consent of the plaintiff landlord at an enhanced rent which was used to be realised according to the English Calendar month, the monthly tenancy

would not coincide with the English Calendar month but the month of the tenancy would be from the 25th of one month to the 24th of the following

month, and in order to prove that the month of the old tenancy was altered by a fresh agreement the plaintiff must prove that fact by more

satisfactory evidence. Even assuming that the tenant has become a statutory tenant under the House Rent Control Order that statutory tenancy ran

from the 25th of one month to the 24th of the following and the plaintiff must prove how the month of the original tenancy came to be altered. The

mere payment of rent from month to month according to English Calendar would not be sufficient, by itself, to prove the month of the tenancy,

because the month of the tenancy may very well be different from the month according to which rent is realised, and the payment of rent according

to English Calendar may be merely a mode of payment and nothing more.

In that case, their Lordships distinguished the decision of this Court reported in ILR 30 Madras 109 (Arunachala Chettiar v. Ramiah Naidu). In the

decision of this Court, it was held thus:

It is also a widespread practice to make the monthly letting to coincide with the calendar month. Where then we find an entry takes place in the

middle of a calendar month and rent is payable from the date of entry, but the parties agree that the rent is payable at the end of the calendar

month, we think the reasonable inference is that they intended that the monthly tenancy should coincide with the calendar month.

This according to their Lordships, goes against the principles enunciated by the Privy Council in the decision reported in AIR 1932 279 (Privy

Council)

Again, in Baidyanath Bhattacharjee Vs. Nirmala Bala Devi, their lordships held thus:

The mere fact that rents are paid and received according to English calendar months is not sufficient to show that the month of the tenancy runs

according to the English Calendar month. The manner or mode of payment of rents may be an important element or factor to be considered on the

point, but it cannot be the sure indication of the month of the tenancy in all cases.

In J. Mc. Gaffin and Another Vs. Life Insurance Corporation of India, , also, the same principle was enunciated. In that case, their Lordships

held that ''even though payment of rent by a calendar month may be some or even an important indication about the tenancy being formed month

by month according to calendar month, but that by itself would not be sufficient to hold that the tenancy was from the first day of the month to the

last day of the month, when there is other best evidence to the contrary.''

As against the said decisions, learned counsel for the respondent submitted that the oral evidence of the parties and also the recital in the rent

deed will only show that the intention of the parties was to begin the tenancy in accordance with English Calendar month. He stressed the wordings

in clause 1 and clause 5 of Ex. A-1 Clauses 1 and 5 read thus:

In paragraph 4 of the plaint, plaintiffs have stated that the tenancy was according to English Calendar month, which has not been specifically denied

in the written statement. He also brought to my notice the evidence of D.W. 1, one of the defendants in the case, wherein he said that the rent is

being paid according to English Calendar month and in the accounts also, the rental arrangement is treated in accordance with English Calendar

month. He also said that in Ex. A-2, it is stated as rent for the month of June. From this evidence, according to the learned counsel for the

respondent, it has to be concluded that the tenancy began only on the first of English calendar and, therefore, Ex.A-3 notice is properly issued,

terminating the tenancy Learned counsel relied on the following decisions, which it will consider in seriatim.

In AIR 1918 P.C. 102= 9 L.W. 148 (Harihar Banerji v. Ramshashi Roy and others), their Lordships were considering how a termination

notice has to be interpreted. It was held thus:

The principles governing the construction of a notice to quit laid down by English cases are equal 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.

The said decision was followed by the Supreme Court in Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs.

Khaja Midhat Noor and Others, and in paragraph 9, their Lordships have said thus:

The question is whether there was a valid notice. The High Court held that in the facts of this case, there was a valid notice of termination and after

the valid notice of termination of the lease to the lessee, there was no need to, give a fresh notice to the sub-lessee. Notice must be read in the

context of the facts of each particular case having regard to the situation of the parties to whom it is addressed.

In Lalbhai Ramjibhai Vs. A.V. Seth, a learned Judge of that High Court, held thus:

Where a tenant who enters into premises in the middle of a quarter by agreement pays a proportionate rent for the broken quarter and afterwards

on the regular quarter days the tenancy is deemed to commence with the first day of such quarter days which follows his entry and a notice to quit

must be given accordingly.

The said decision has no application since on the facts of that case, it is clear that the tenancy was in accordance with English Calendar month.

Mulla in ''The Transfer of Property Act'' 8th Edition (1995) has also commented as to the form and construction of notice to quit. At pages

817 and 818 of the said book, learned author says that ''a liberal construction is therefore put upon a notice to quit in order that, it should not be

defeated by inaccuracies either in the description of the premises, or the name of the tenant or the name of the landlord, or the date of the expiry of

the notice''. But the learned author has also said that ''but a liberal construction must not ignore the fact that the provision is for the benefit of

lessees, and a construction which deprives the tenant of the minimum period of notice stipulated in this section is not permissible''.

(Emphasis supplied).

Learned author also relies on the decision reported in Mangilal Vs. Suganchand Rathi, which is also followed in Burmah Shell Oil Distributing

now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Others,

In Mangilal Vs. Suganchand Rathi, their Lordships distinguished the decision reported in AIR 1918 P.C. 102= 9 L.W. 148 (supra), and

extracting a passage cited therefrom, it was held thus:-

. . .The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the

description of the demised premises and the privy council held that the recipient of a notice would be quite conversant with the actual description

and could know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum

period contemplated by S. 106of the Transfer of Property Act to the tenant within which to vacate the premises. This provision is evidently

intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility. It seems to

us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 daw within

which to vacate not permissible...

(Emphasis supplied).

Even if I agree with the learned counsel for the respondents that liberal construction has to be put on clear notice, there is a limit for that

interpretation also as held in Mangilal Vs. Suganchand Rathi,

On the basis of the above decisions, let us consider what is the date of commencement of the tenancy in this case. In Paragraph 2 of Ex A-1, it

is stated thus:

The document is written on 29th Panguni, corresponding to 11-4-1969. So, even though the document was executed on 11-4-1969, the parties

wanted a different date for commencement, i.e., from 13-4-1969. When the parties have agreed for a definite date, mode of payment of rent

cannot change the same, as held by the Supreme Court in Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, , and the date of

payment need not synchronise with the commencement of the tenancy.

Learned counsel for the respondents also contended that the deceased defendant has not disputed the validity of the notice, and the pleading

regarding the same was also brought to my notice. It is only the legal representatives who are agitating this question, and, when the original tenant

(deceased defendant) has accepted the same, the legal representatives are not entitled to challenge the validity of the same. The legal contention of

the respondents merits consideration. But when we go by the facts of the case, I find that the same may not have any application. The contention

raised by the deceased defendant regarding the validity of the notice is contained in paragraphs 13 and 14 of the written statement. In paragraph

13, he says thus:

In paragraph 14, he says thus:

In their additional written statement, the legal representatives have taken a definite stand ""that the notice to quit is not in accordance with the

Transfer of Property Act and hence invalid in law. As per the terms of the lease deed, the tenancy month is from 13-4-69 to 12-4-72. So, the

tenancy commences on the 13th of every English month and ends with the 12th of next English month. Hence, the notice to quit, treating the

tenancy as starting from the 1st date of the English month and ends with the end of the English month is clearly invalid in law and there is no proper

termination of tenancy and on this ground alone the suit is liable to be dismissed.

Paragraph 19 of the decision reported in 1976 - II - M.L.J.107= 89 L.W. 48 (supra) gives an answer to the contention of the respondents.

There also, the contention that 15 days notice was not given, was not taken But a plea was taken that the notice issued was not proper, and he

also pleaded that he is entitled to six months notice. This contention was accepted by this Court to hold that the validity of the quit notice was

challenged, and that will be sufficient to enter a finding or to decide whether the quit notice is proper or not. In paragraph 19 of the judgment, this

Court has held thus:

It is contended on behalf of the plaintiff that the defendant has not specifically stated in the written statement that even if 15 days notice is sufficient,

the notice is not proper. The plea that the notice to quit is not proper has been specifically taken. The defendant has pleaded that he is entitled to

six months'' notice. Even if it is to be held that he is not entitled to such notice one has to find whether 15 days'' notice has been given in

accordance with S. 106. Certainly it is not a case where the defendant has not taken the plea that the notice to quit is not proper.

It may be further noted that before, the trial court as well as the first Appellate Court, the parties joined issue as to the validity of the notice. We

find that the main contention that was put forward before the courts below was regarding the validity of the notice, and the finding was entered in

favour of the plaintiffs. So, the plaintiffs had also understood the scope of the (deceased) defendant''s plea, namely, that he has questioned the

validity of the termination notice. It is too late for them now to contend that the defendant has not specifically pleaded the case.

Learned counsel also wanted this Court to rely on the oral evidence of D.W. 1, and also the admission in the pleadings, in the sense that when

the plaintiffs have alleged that the tenancy is according to English Calendar month, and when the same is not disputed by the deceased defendant,

the same amounts to an admission under O.8 R.6, C.P.C.

I cannot agree with the said submission. Even in the plaint, it is admitted that the tenancy began, when the lease deed was executed on 11-4-

1969. The parties are governed by the written agreement. It is also admitted that after the expiry of the term, the tenant continued to hold over the

property on the same terms. The terms are incorporated in the deed. The same can be varied only by way of another written document. On the

basis of deposition alone, it cannot be taken that the terms of Ex. A-1 had been changed. I have also gone through the evidence of D.W. 1. He

speaks only about the payment of rent, and not about the commencement of the tenancy. So, nothing turns on the oral evidence of D.W. 1.

The courts below have held that the termination notice is proper only for the reason that the rent is being paid in accordance with English

calendar month. Once it is held that the tenancy month and payment of rent need not synchronize, that conclusion has to be only set aside, and I do

so accordingly. In the result, setting aside the judgments of both the courts below, the Second Appeal is allowed, and the suit is dismissed.

However, there will be no order as to costs.