Usharani Debi vs Charusila Dasi and Another

P.N. Mookerjee, J.—This is another case where the landlords'' claim for ejectment is being-resisted on the plea of waiver of the notice to quit. The tenancy started about 8 or 9 years back. - It was a small tenancy according to the Bengali Calendar at a monthly rent of Us. 14 plus electric charges and it comprised only one room and a kitchen in the ground floor of premises No. 1, Sri Krishna Lane, Calcutta. In February, 1951, the landlady Sm. Charusila Dasi, who is respondent No. 1 in this appeal, gave notice to the tenant appellant Sm. Usharani Debi to quit and vacate the suit premises on the expiry of the last date of the month of Falgoon, 1357 B.S. and, the appellant having failed to comply with the said notice, the present suit for ejectment was instituted against her in the Court of Small Causes, Calcutta, on the 29th May. 1951.

In the meantime, however, on the 30th April, 1951, the rent for the month of Chaitra, 1357, B.S., sent by the tenant by postal money order, had been accepted on behalf of the plaintiff landlady and the rent for the next Bengali month, namely, Baisakh, 1358, B.S., was also remitted by the tenant by postal order and duly received and accepted by the landlady''s son on her behalf on or about the 7th June, 1951, that is, after the institution of the ejectment suit, and, accordingly one of the two principal defences, taken by the tenant, was that the notice to quit had been waived and the suit on the basis thereof was not maintainable in law. This defence succeeded before the learned trial Judge who did not, in the circumstances, deem it necessary to consider the merits of the landlady''s plea of "reasonable and bona-fide requirement" under the Rent Control Act. The learned trial Judge, however, recorded an opinion on the other question under the Act, namely, whether the tenant was defaulter and on that point he held in favour of the tenant.

Against the dismissal of her suit the plaintiff landlady took an appeal to the Special Bench of the Small Causes Court, Calcutta, as provided by law, and the learned Judges of the Appellate Bench have now reversed the decision of the learned trial Judge on the question of waiver of the notice to quit and, having held that there was no such waiver on the authority of the decision of this Court, reported in Manindra Nath De v. Man Singh (1) 85 C.L.J. 339, they have remanded the suit to the trial court for fresh trial or hearing on all the other issues including the question of the tenants'' being a defaulter, the trial Judge''s decision on this latter Question not having been found satisfactory by the Appellate Bench. From this appellate decision the present appeal has been preferred by the tenant defendant and the only point, urged by her learned Advocate, relates to the question of waiver of the notice to quit.

The law of waiver of the notice to quit has recently been discussed by me in the light of the leading cases on the point in Second Appeal No. 545 of 1953 Mahadeo Prassad v. Sm. Sulekha Sarkar (2) which came up before me sometime back and was disposed of on the 22nd January, 1954. That decision has since been approved by the Division Bench, Lahiri and Mitter. JJ., in Second Appeal No. 1166 of 1952, decided on the 24th February, 1954 since reported in Panchanan Ghose Vs. Haridas Banerjee, (8). In the case cited my final conclusion was in favour of the landlady and, as in the present case, I shall be giving effect to the tenant''s plea, it is necessary to point out the distinguishing features of this case which have brought about a difference in the final result. In course of my discussion I shall also refer to the cases which were cited at the Bar and the arguments, addressed to me, and I shall also endeavour to state clearly the reasons which have prompted me to hold in the tenant''s favour in the present case.

The learned Advocate for the appellant relied particularly on illustration (a) of section 113 of the Transfer of Property Act and the decision of Buckland. J., in Manicklal Dey Chaudhury v. Kadambini Dassi (4) (43 C.L.J. 272), and the other decision of this Court reported in Bengal-Nagpur Railway Company, Limited Vs. Firm Bal Mukunda Biseswar Lall, . He also relied on the language of section 113 of the Transfer of Property Act and further contended that, in any event, it was a case of "holding over" u/s 116 of the said Act. In support of this latter argument the learned Advocate cited the Federal Coust decision in the case of K.K.B. Kapadia v. Warden (6) [53 C.W.N. 73 (F.R.)], the same case also reported in AIR 1949 F.R. 124, and the recent Supreme Court pronouncement in the case of Karnani Industrial Bank Ltd. v. Province of Bengal (7) [(1952) S.C.A. 1], which also according to him, aided considerably his interpretation of section 118 of the Transfer of Property Act and his plea of waiver of the notice to quit. He even went to the extreme length of urging that in view of section 113 of the Transfer of Property Act acceptance of rent after service of the notice to quit must in law amount to a waiver of such notice.

Mr. Dutt on the other hand relied strongly on the decision of my learned brother Sarkar J., in (1) (85 C.L.J. 339, Manindra Nath Dey v. Man Singh) which forms the basis of the judgment of the lower Appellate Court and he contended that, in the present state of the law, acceptance of rent after service of the notice to quit cannot be held to be waiver of that notice.

I am unable to accept either of the two extreme contentions, raised by the parties before me. The law lies in between. It will not be correct to say that acceptance of rent after service of the notice to quit must in every case necessarily lead to a waiver of the notice to quit. Nor would it be proper to hold that such acceptance would in no case amount to a waiver of the notice to quit. The question must be carefully approached with an eye on the circumstances of each particular case and it must be judged and decided against the background provided 1 y those circumstances and the context in which they appear. It is not always easy to determine the legal consequence of a subsequent acceptance of rent or its legal effect on a prior notice to quit which has already taken effect and each case must be left to be decided on its own facts. It is possible, however, to lay down the general principles which must be kept in view in arriving at a proper decision and to that end, I propose to devote a few lines in this judgment.

In this country the law of waiver of the notice to quit is contained in section 113 of the Transfer of Property Act. That section is in these terms:

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.

u/s 111(h) a notice to quit may be given by either party--the landlord or the tenant and as section 113 appears to contemplate cases, where the notice has taken effect (vide the illustrations to the section) and the tenancy has accordingly, terminated, it requires the agreement or consensus of both parties or a bilateral act for its operation, that is, for reviving the dead tenancy. This is also clear from the language of the section. The giver "waives" the notice and the recipient agrees to or permits such waiver. It is true that the section speaks of an intention to treat the tenancy as subsisting, thus postulating the continuance of the old tenancy or effacing in effect the notice to quit which is more consistent with the idea of "waiver of the notice" than the English conception of a new tenancy, though on the old terms, arising from a fresh agreement. This incongruity between conception and expression has not gone unnoticed in England, where the term "waiver" in such connection has been held to be inaccurate or improper (vide the well-known English case of Davies v. Bristow (8) [(1920) 3 King''s Bench, 428 at pages 437-8 and 440-41]. There is, therefore, some ideological distinction between the law on this point as prevailing in England and as enacted in the Indian Statute, but that is, practically speaking, a distinction without difference. Under either an agreement is necessary between the landlord and the tenant--to create a new tenancy on the old terms in the one case, to revive and continue the old tenancy in the other. In either again rights of third parties, acquired on the termination of the old tenancy upon the expiry of the notice to quit, remain unaffected but as between the parties, the old terms remain fully effective and binding without a break, the new tenancy under the English law, arising by the operation of the "law of waiver of the notice to quit", taking effect from the moment the old tenancy terminates by reason of the said notice. The difference is only in conception--a new tenancy on the old terms as under the English law and the old or the dead tenancy being revived or getting into life again u/s 118 of the Transfer of Property Act. The practical result is the same in each case and, for all practical purposes, the requirements of the "law of waiver of the notice to quit" in either system and the conditions of its applicability are identical. I do not also find any material difference in the Rent Control Acts of the two countries so as to make the underlying- principle of the English decisions in Davies v. Bristow (8) [(1920) 3 K.B. 428], and Shuter v. Harsh (9) [(1922) 1 K.B. 438], inapplicable to this country. Neither of the said two decisions proceeded on the view that there was any legal compulsion on the landlord under the English Rent Control Law to accept rent of an expired or terminated tenancy and, on this aspect of the matter. I must, with all respects, differ from the view taken of these English cases in (10) (83 C.L.J. 328, Surendra Chandra Majumdar v. Panchi Bibi, at page 336).

In my opinion the law of waiver of the notice to quit--save for the ideological distinction, noticed above, --is the same in England and in this country and, if the decisions, cited from the King''s Bench Reports, are sound in principle, they should be accepted for all practical purposes as the law in this country too. The soundness of those decisions and their applicability to this country were acknowledged in the decision of this Court, reported in Bengal-Nagpur Railway Company, Limited Vs. Firm Bal Mukunda Biseswar Lall, , already cited (vide page 665), and that position has been recently affirmed also by the Federal Court in (6) ( 53 C.W.N. 73 F.R.). (Vide page 79 of the Report in Kapadia, K.K.B. v. Warden), where the later English case of Morrison v. Jacob (11) [(1945) 1 K.B. 577], was also cited with approval on this point.

What is important in this branch of the law, namely, the law of waiver of the notice to quit is the agreement or consensus to treat the old tenancy as subsisting or to put it in the light of the English idea, to create a new tenancy on the old terms. Payment and acceptance of rent after the expiry of the notice to quit may be evidence of such agreement, but whether they are so or not in particular cases depends on circumstances. If they stand alone and no other explanation is possible of such payment and acceptance they will be clear and unequivocal evidence in that behalf. If however, circumstances exist which cast doubt upon the nature of such payment and acceptance or if in the context of a particular case they are found consistent with both the existence and the non-existence of such agreement, or, in other words if they become ambiguous or equivocal evidence of the same, they by themselves alone will be insufficient to raise or justify the inference of the necessary agreement. They will then have to be judged with the other evidence in the case and the cumulative effect will have to be determined to find out whether the parties did really agree to treat the old tenancy as subsisting as required u/s 113 of the Transfer of Property Act or to create a new tenancy on the old terms as laid down in the English authorities. It is also to be remembered that the onus is on the person pleading waiver, and such onus has to be discharged before that plea can succeed.

In illustration (a) of section 113 of the Transfer of Property Act, there are no dubious circumstances and the payment and acceptance of rent is unequivocal evidence of the necessary agreement. In 83 C.L.J. 328 (Surendra Chandra Majumdar v. Panchi Bibi) (10), the payment and acceptance was found, on the other materials on record, to be unequivocably referable to an agreement--a fresh agreement of tenancy. In (1) 85 C.L.J. and (12) Navnitlal Chunilal Vs. Baburao (No. 1), and (13) AIR 1948 Bom. 385, the payment and acceptance of rent was held to be ambiguous or consistent also with the absence of the necessary agreement and the other evidence in the case did not resolve the ambiguity in the tenant''s favour and the onus that lay upon him was not therefore discharged. In (4) 43 C.L.J. 272 (Manicklal v. Kadambini) all the relevant aspects were not fully considered and the bald statement of the law of waiver there appearing in an absolute and extreme form cannot possibly be accepted. It may, however, be that there were other materials in that case which could have justified the finding of waiver of the notice to quit and it is pretty clear that the only point, there seriously argued, whether post suit acceptance of rent would have the same effect as a pre-suit acceptance : Karvani''s case (7) [(1952) S.C.A. 1], on which also the appellant relied but which was really concerned with the law of "holding over" u/s 116 of the Transfer of Property Act, in no way affects but rather supports my view of the legal principles underlying the "law of waiver of the notice to quit."

Having stated above the relevant "law of waiver" and the manner of its application, now I proceed to examine the position in the present case in the light of that statement. The suit for ejectment was admittedly filed on the 29th May, 1951. There is no question, therefore, that it will have to be decided under the Rent Control Act of 1950. The landlady in her plaint sought to make out a case for eviction of the tenant under the said Act and the tenant denied her allegations and claimed protection under the same. The first of the two relevant payments and acceptances of rent was prior to the institution of the suit and the other was immediately after such institution. It cannot be denied, however, that the Rent Control Act of 1950 was in operation at the dates of both these payments and acceptances and the relationship between the parties was governed by that Act. In these circumstances, those payments and acceptances cannot by themselves be held unequivocal evidence of an intention to waive the notice to quit. Then, however, if one turns to the other evidence in the case, no doubt remains as to the nature and character of these payments ant their acceptances. The oral evidence of the parties and the postal money order acknowledgment coupons (Exts. B series), unmistakably show that from long before the service of the notice to quit the tenant defendant had been paying the rent by postal money order month by month and the same was being duly accepted on the plaintiff''s behalf. At that time the tenancy was clearly subsisting. Then came the notice to quit, but the payment and acceptance of rent continued as before. The evidence of the tenant''s husband (D.W. 1) read along with Exhibit ''D'' series shows that these subsequent payments were made as before for rents of the original tenancy and the said exhibits read in the light of the evidence of the landlady''s son (P.W. 1) confirms that they were also accepted as such. On the materials before me, I am unable to hold that the payments and acceptances relied on, in this case as evidence of waiver u/s 113 of the Transfer of Property Act can be explained on any other hypothesis. I am wholly unimpressed by the belated and laboured explanation of P.W. 1, that the acceptance of the amounts was as "money order moneys" or "in lieu of rent" and not as rent, and I have no hesitation in rejecting the same. A point was raised by Mr. Dutt that it would be inconceivable that the landlady would be accepting rent and intending to continue the tenancy so shortly after service of the notice to quit and even immediately after the institution of the ejectment suit, but I do not think that, in the circumstances of this case, it is so improbable. The conduct of the landlady may not appear to be quite consistent, but I have no doubt in my mind on the materials before me, and, particularly, having regard to a similar piece of conduct on the landlady''s part in relation to a previous notice to quit, that, in the present case, rent was accepted after the service of the notice to quit as rent for the old tenancy on the footing that it was continuing. I, accordingly, hold that the notice to was waived in this case and the learned trial Judge was right in his finding on that point. The respondents'' suit for ejectment must, accordingly, fail.

In the above view of the matter, it is unnecessary for me to express any opinion on the plea of ''holding over u/s 116 of the Transfer of Property Act. It seems to me, however, that the scheme of the Transfer of Property Act suggests that that section has no application to cases of termination of tenancies by notice to quit. Section 113 excluded section 116 The two sections are based on different conceptions. Section 113 revives the old tenancy and continues it without break. Section 116 renews the tenancy after its termination. The idea of a new tenancy, though on the old terms is quite appropriate to this latter section although as already pointed out it is rather unsuited--although the practical result is the same--to the phraseology of the earlier section. There being this distinction--although there may not be any practical difference--it seems to me that both the sections cannot apply to a particular case. This is confirmed when we find that on the language of either section same action of the parties will continue or renew the old tenancy, but in the one case, it continues or it deemed to continue without a break, subject, of course, to rights of third parties which might have intervened in the meantime, in the other it starts again from its point of termination If, however, section 116 applies to such cases my finding as made above as to the effect of the subsequent payments and acceptances of rent also brings the present case within that section and the tenant would be protected.

It is not also necessary for me to express any opinion on the question whether the tenant defendant is a defaulter under the Rent Control Act of 1950. That question is left open between the parties and I make no pronouncement on the correctness or otherwise of the trial court''s decision on that point. In the result, therefore, this appeal is allowed The decision of the lower Appellate Court is set aside and that of the trial court is restored. The plaintiff''s suit is dismissed with costs in the trial court. Parties will bear their own costs in this Court and in the lower Appellate Court. The question whether the tenant defendant is a defaulter within the meaning of the Rent Control Act of 1950 is left Open.