The husband of an illiterate wife has implied authority to act on her behalf in issuing a notice of termination of lease under section 106 of the Transfer of Property Act, in the absence of evidence to suggest that they are living separately or are not on cordial terms.

JUDGMENT - PURANIK S.W., J.: - This is the original defendant's revision application challenging the concurrent judgments and decrees passed by the trial Court and the lower Appellate Court, decreeing the suit of the respondent-plaintiff for ejectment, arrears of rent and damages.

2. The respondent-plaintiff filed a Civil Suit No. 94 of 1978 which was decreed in her favour on 7-10-1980 by the Civil Judge, Junior Division, Ramtek. The lower Appellate Court of the Extra Assistant Judge, Nagpur in Civil Appeal No. 234 of 1980 confirmed the said decree by its judgment dated 14-10-1981.

3. The suit house belongs to Janabai wife of Rajaramji Ambagade, the plaintiff-respondent. The applicant-defendant was her tenant. The plaintiff-Janabai is illiterate. Her husband Rajaram was looking after the management of her property. He instructed the Counsel on behalf of Janabai to issue notice under section 106 of the Transfer of Property Act for determination of the monthly tenancy of the defendant. Notice for termination was issued by the Counsel on behalf of Janabai, the plaintiff. The defendant did not reply to the notice. Thereafter, Janabai filed the present suit in her own name and under her own thumb impression. She, however, did not enter the witness box, but her husband Rajaram entered the witness box on her behalf as her agent. He also produced on record Exhibit 15, power of attorney, executed by the wife in his favour.

4. In the written statement, the defendant had raised a very broad contention that the notice of termination of lease issued under section 106 of the Transfer of Property Act is not legal and proper. Both the courts below found that by the notice issued by the Counsel on behalf of Janabai, the tenancy of the defendant was legally terminated.

5. During the course of evidence, the husband of the plaintiff was cross-examined at length and he had stated that his wife Janabai executed the document of Power of Attorney Exhibit 15 at Kanhan by putting her thumb impression. He further admitted that the signatures of the attesting witnesses were taken at Ramtek, where his wife had not accompanied him because of illness. He further admitted that when he had given instructions to the Counsel, his wife had not come to Ramtek to the Counsel's office. He further admitted that at the time of issuing notice through the Counsel, his wife Janabai had not executed power of attorney in his favour. The Power of Attorney was executed after the plaint was filed in the Court.

6. It was contended on behalf of the applicant-defendant by Shri V.C. Daga, Advocate, that both the courts below have erred in finding that the notice under section 106 is legal and proper and has validly terminated the tenancy. He urged that the notice under section 106 has to be issued by the owner of the property, the lessor, either under his signature or on his behalf. He also pointed out that in view of the admission of Rajaram, the instructions were given to the Counsel not by the lessor, but by her husband. As such, it could not be termed to be a notice given on behalf of Janabai. Moreover, the power of attorney Exhibit 15 was not properly executed because admittedly, Janabai put her thumb mark at Kanhan While the attesting witnesses have put their signatures at Ramtek. He also relied upon the ruling in A.I.R. 1917 Cal. 621 (Cassim Ahmed Molla v. Eusuf Haji Ajam Pepardi another)1.

7. Shri P.T. Trivedi, Advocate, appearing for the respondent-plaintiff supported the impugned judgment.

8. The only question for determination is whether the peculiar facts and circumstances of the case, the notice issued for determination of lease was legal and proper.

9. Relevant part of section 106 of the Transfer of Property Act provides that:

“Every such notice 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 deliver personally to such party, or to one of his family or servan

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