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1932 Supreme(SC) 40
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD THANKERTON, LORD MACMILLAN, LORD WRIGHT, AND SIR GEORGE LOWNDES.
BENOY KRISHNA DAS - Appellant
Versus
SALSICCIONI (DEFENDANTS) - Respondents
On appeal from the High Court at Calcutta.
Decided On : July. 26. 1932.
Solicitors for appellants:T. L. Wilson & Co. Solicitors for respondents: Sanderson, Lee & Co.
Under the Transfer of Property Act, 1882, if a lease expires on the anniversary of its commencement date (excluding the start date), the 'month of the tenancy' for subsequent month-to-month holdings ends on that same date each month, rendering notices expiring on that date valid.
Headnote:(A) Transfer of Property Act, 1882 - Sections 106 and 110 - Lease of immovable property - Termination of month-to-month tenancy - Validity of notice - Where a lease is expressed to commence from a particular day, such day shall be excluded in computing the time - Where the term is for a number of years, the lease lasts during the whole anniversary of the day from which such time commences - If the lease ended at midnight on the first day of a month, any subsequent notice to determine a month-to-month tenancy must expire with the end of a month of the tenancy, which in such case would be the first day of any month.
(B) Interpretation of Lease Terms - A provision in a lease regarding the timing of rent payments does not constitute an express agreement to exclude the operation of Section 110 of the Transfer of Property Act, 1882, as it pertains to the payment of rent rather than the fixing of the period covered by the term.
Facts of the case:
A lease for residential premises was granted for a term of four years commencing from the first day of June. After the expiry of the fixed term, the tenants continued in possession, resulting in a month-to-month tenancy under the law. On the first day of February, the tenants gave notice to terminate the tenancy, stating they would hold possession until the last day of that month and vacate on the first day of the following month. The lessor challenged the validity of the notice, contending that the month of the tenancy ended on the last day of the calendar month (February 29) rather than the first day of the next month (March 1).
Findings of Court:
The lease ended at midnight on the first day of the month of its anniversary. Consequently, the month of the tenancy for the subsequent month-to-month holding expired at midnight on the first day of each month. The notice given on the first of February to take effect on the first of March was therefore a valid notice expiring with the end of a month of the tenancy.
Issues: Whether a notice to terminate a month-to-month tenancy is valid if it expires on the first day of a month, based on the commencement date of the original lease and the application of Sections 106 and 110 of the Transfer of Property Act, 1882.
Ratio Decidendi: Pursuant to Section 110 of the Transfer of Property Act, 1882, the day of commencement is excluded, and the lease lasts during the whole anniversary of the day from which such time commences. Since the original lease commenced from the first of June, it expired at midnight on the first of June four years later. Therefore, the "month of the tenancy" for any subsequent month-to-month arrangement ends at midnight on the first day of each month. A notice expiring on the first of the month thus satisfies the requirement of Section 106 to expire with the end of a month of the tenancy.
Result: Appeal fails.
Legal Category Hierarchy
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property law
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landlord and tenant
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lease termination
- notice to quit
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lease interpretation
- computation of time
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lease termination
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landlord and tenant
Judgement
Appeal (No. 107 of 1931) from a decree of the High Court in its appellate jurisdiction (August 13, 1930) reversing a decree of the Court in its original jurisdiction (April 17, 1930).
The respondents were tenants from the appellants of premises in Calcutta, having remained in possession after the expiry of a lease for residential purposes dated June 29, 1921, for four years. The appeal arose out of suits brought by the appellants against the respondents in the Small Causes Court for the recovery of rent for successive months ; the suits were consolidated and transferred to the High Court.
The sole question arising upon the appeal was whether a notice given by the respondents on February 1, 1928, to terminate the tenancy was a valid notice.
The trial judge (Buckland J.) held that the notice was invalid, as it did not expire at the end of a month of the tenancy as required by s. 106 of the Transfer of Property Act, 1882. Upon appeal the decision was reversed by Rankin C.J. and C. C. Ghose J., who held that the notice was valid and accordingly dismissed the suits.
The facts, and the material terms of the Transfer of Property Act, 1882, ss. 106 and 110, appear from the judgment of the Judicial Committee.
1932. July 26. Dunne K.C. and G. D. McNair for the appellants.
Sir Thomas Strangman for the respondents was not called upon.
The judgment of their Lordships was delivered by
LORD TOMLIN. Their Lordships do not think it necessary to call upon counsel for the respondents in this case.
The appellants, who are the plaintiffs in the action, are lessors claiming that a notice given by the respondents purporting to terminate their tenancy was not a good one.
The notice was given in the circumstances which will shortly be mentioned, but before stating them it may be well to refer to the sections of the Transfer of Property Act, 1882, which are relevant.
The first is s. 106, which is in these terms " In the absence of a contract of 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 year of the tenancy ; 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 expiring with the end of a month of the tenancy."
Sect. 110 is in these terms " 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 the 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."
Now the facts of this case are as follows The respondents became tenants of the appellants under a lease of certain premises dated June 29, 1921, expressed to be "from the first day of June, 1921, for the term of four years thence next ensuing." Then there followed this provision with regard to the payment of rent " Yielding and paying therefor the clear monthly rent or sum of rupees one thousand 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 one thousand nine hundred and twenty-one to be paid on or before the seventh day of July one thousand nine hundred and twenty-one and so on."
That lease expired in due course in the year 1925, but the respondents continued as tenants of the premises, and under the terms of s. 106, which has been read, their tenancy was terminable thereafter by fifteen days notice expiring with the end of a month of the tenancy.
On February 1, 1928, the respondents gave notice to terminat
