A notice to quit given by a landlord to a tenant is valid and enforceable if it is in accordance with the agreement between the parties, even if it does not comply with the requirements of Section 106 of the Transfer of Property Act.

DAVE, J.

( 1 ) THIS is a second appeal by the defts. against the judgment and decree of the disk Judge of Jaipur, dated 22-10-1948, upholding the decree of the Munsif west, Jaipur city, dated 19-7-48, for their ejectment from the pltfs. shop and for payment of Rs. 144 as rent to the reap.

( 2 ) ON 27-7-1950 the applts. advocate had raised two grounds in appeal. His first contention was that there was a subsequent agreement for enhanced rent between the parties and therefore, the previous agreement on which the pltf had based his suit was not enforcible. This objection is untenable, because both the cts. have recorded a concurrent finding that the subsequent agreement alleged by the applts. was not proved. This is a finding of fact and a second appeal thereon does not lie.

( 3 ) THE next argument pressed by the applts. counsel was that the notice given by the resp. was invalid since it did not comply with the requirements of Section 106, Transfer of Property Act, It was argued that the notice was not for 15 days and did not terminate with the month of the tenancy. From the perusal of the notice ex. 3 dated 19-7-1946 it certainly appears that it was given for one month and the period was to begin from 1-8-1946 but the rent deed ex. p. 4 shows that there was an agreement between the parties for one months notice and this is why Ex. 3 was given in accordance with it. Section 106, T. P. Act, runs as follows: "in the absence of a contract or local law or usage to the contrary, a lease of immoveable 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 immoveable 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. 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 (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. "

( 4 ) IT is clear from the opening words of this section that a notice of 15 days terminating with the period of tenancy is necessary only in the absence of a contract to the contrary. When there was specific contract between the. parties and the notice was given according to that contract then it cannot be said to be invalid! for the reasons given by the applts. advocate.

( 5 ) AT the close of arguments on 27-7-1950 the learned advocate for the applts. presented a fresh appln. to permit him to raise a new point, because of a recent decision of this H. C. given by my learned brother Sharma J. That appln, has also been heard now. The applts. advocate has pointed out that the notice Ex. 3 was addressed to both the applts. but it was tendered by the postman srinarain p. w. 4 only to the applt. , Ghulam Mohammad who refused to accept it. It has been argued that since applt. 1 had refused to accept the notice and since it was not offered to the other applt. Maula there was no service upon the latter. It is conceded by him that if this notice were received by applt. 1 Ghulam mohammad, then applt 2. who is a joint tenant would have been bound by that notice in view of the observations made by their Lordships of the P. C. in harihar Banerji v. Ram Shahi Boy, A.. R. (5) 1918 P. C. 102 : (46 Oil. 453) and subsequent rulings of other H. Cs. to the same effect: 1. Bodardoja v. Ajijuddin Sircar, A.. R. (16) 1929 Cal. 651: (57 Cal. 10 ). 2. Mohanlal v. Governor-General in Council, A.. R. (32) 1945 Nag. 255: (. L. R. (1945) Nag. 629 ).

( 6 ) ACCORDING to him since this was not a case of acceptance but of refusal by the jo