Mere acceptance of rent by the landlord after the expiry of the notice to quit does not constitute a waiver of the notice, where the rights of the parties are governed by a rent control law.

( 1 ) THIS second appeal was referred to a Division Bench by a learned single Judge and is thus before us.

( 2 ) THE principal question which falls to be considered in the appeal is whether acceptance of rent due after the expiry of a notice to quit constitutes a waiver of the said notice by the landlord.

( 3 ) THE appellant was a tenant under the respondent in respect of a portion of premises No. 4, Townshend Road, Calcutta. By a notice to quit, dated 4-3-1948, the respondent landlord purported to terminate the appellant's tenancy on 31st March. This was followed by a suit for ejectment instituted on 3-4-1948. Thereafter, for several months the appellant deposited current rent with the Rent Controller, but between January, 1949, and October, 1950, while the suit was still pending, he remitted to the respondent by postal money orders divers-sums by way of rent for the period commencing January 1949. The suit for possession, which was governed by the provisions of Calcutta Rent Ordinance, 1946, was decreed on 11-12-1951.

( 4 ) AS the appellant's written statement was filed long before the said acceptance of rent by the respondent, no specific case of waiver was pleaded and no amendment of the written statement was asked for to incorporate a plea of waiver before the suit came on for final hearing. Consequently, there was no issue as to waiver. The money order acknowledgment receipts were, however, tendered upon admission. This payment and acceptance of rent for the period subsequent to the expiry of the notice to quit, according to the appellant, constituted a waiver of the said notice.

( 5 ) THE learned Munsif who decreed the suit was of the opinion that although in the absence of any specific issue as to waiver, the defendant tenant was allowed to give evidence about it, such evidence was insufficient to prove that the plaintiff had waived the said notice to quit. The lower appellate court also held that no such waiver had been established. The appeal is dismissed.

( 6 ) MR. Bejoy Bhose for the appellant has argued, firstly, that the original tenancy having commenced on 14th or 15th June, 1952, a clear 15 days' notice was not given, and, secondly, that by the payment and acceptance of rent for a period subsequent to the alleged termination of the tenancy, the notice concerned was waived.

( 7 ) AS to the first point, the finding is that the tenancy in question was according to the English calendar month. That being so, the notice, in our view, was a sufficient notice.

( 8 ) AS to the question of waiver, Mr. Bhose has relied upon illustration (a) to Section 113 of the Transfer of Property Act and has contended that the mere acceptance of rent is sufficient to constitute waiver. In support of his contention, he has relied upon -- 'manicklal Dey Choudhury v. Kadambini Dassi', AIR 1926 Cal 763 (A), and -- 'karnani Industrial Bank Ltd. v. Province of Bengal', AIR 1949 Cal 47 (B ). At the same time, Mr. Bhose has drawn our attention to a number of cases which support the contention that a mere acceptance of rent does not in all cases, and in particular in this case, constitute any such waiver. Mr. Nalin Banerjee for the respondent has relied upon the latter decisions.

( 9 ) FOR a proper appreciation of the case law on the subject, it is necessary to bear in mind that a waiver is an intentional relinquishment of a known right, or such conduct as warrants an inference of such relinquishment. Naturally, the burden of proof of such relinquishment is on the person who relies on the waiver. As observed by their Lordships of the Privy Council in -- 'dawsons Bank, Ltd. v. Nippon Menkwa Kabushiki Kaisha', AIR 1935 PC 79 (C), waiver is contractual; it is an agreement to release or not to assert a right. That being the position, a waiver must, upon ultimate analysis, be a question of fact, depending upon the circumstances of the particular case before the Court. This statement of the law relating to waiver does not appear t