Fresh tenancy created due to payment of rent subsequently.

Horwill J.-The appellant has been the tenant of the respondent for the past ten years’. As he did not pay rent for August and September, 1946, the respondent, on 1st February, 1947, filed an application under the Rent Control Act for eviction. Very shortly afterwards, on 6th March, 1947, the appellant filed an application before the Rent Controller under the same Act for fixing a fair rent An order of eviction was obtained by the respondent on 15th September, 1947. but no action could be taken by him in execution of that order, because the appellant immediately filed an appeal and obtained on 3rd October, 1947, a stav order On 1st November, 1947,on the appellant’s application, a fair rent was fixed at Rs. 41-4-0 from 1st October, 1946, as against the contractual rent of Rs.30, the order being passed “without prejudice to the order of eviction and the order that might be passed in the appeal”. In pursuance of the order of the Rent Controller fixing the fair rent at Rs. 41-4-0, the appellant, on 5th November, 1947 sent cheques for Rs. 536-4-0 and Rs. 60 to the respondent. On 21st November, 1947 the respondent accepted these cheques for the amounts due to him under the Rent Controller’s order; but he stated in acknowledging the receipt that he accepted the cheques without prejudice to the order of eviction and as damages for use and occupation. He presented the cheques to his bank four days later, on 25th November 1947. Soon realising that he had made a technical mistake in accepting these cheques, the respondent sent the appellant a cheque on 9th December, 1947, for the amount that he had received a few weeks earlier. The question for consideration before Govinda Menon, J., in C.M.A. No. 91 of 1949, which has been raised before us again in this Letters Patent Appeal, is whether in view of the acceptance of money sent by the appellant’ as rent, the appellant is to be regarded by virtue of the provisions of section 116 of the Transfer of Property Act as a tenant of the respondent from month to month and therefore entitled under the Rent Control Act to continue in possession. Govinda Menon, J., held that section 116, Transfer of Property Act, had no application and dismissed the appeal.

In his judgment, the learned Judge considered in detail the various authorities cited before him as to the effect of the acceptancef of rent from a tenant. The cases have not been read to us in appeal; because the correctness of the principles laid down by the learned Judge and the effect of the decisions discussed by him are not now in dispute. If there had been an act by the tenant which entitled the landlord to bring the tenancy to an end and the landlord thereafter accepts rent, his action is construed as a waiver of his rights arising out of the forfeiture. Similarly, if after the issue of a notice to quit but before the period determining the lease has expired, the landlord accepts rent, it may be construed as a waiver of the right that has accrued to him upon the issue of a notice to quit. Where however the period fixed by the notice has expired, the tenancy is at an end; and no money accepted after the termination of the tenancy operates as a waiver or gives the tenant any right to continue in possession. Since the learned Judge considered the various authorities on the effect of receiving rent after the determination of the lease, the authoritative decision of the Court of Appeal in England in Clarke v. Grant1, has been received, which sets at rest once for all any doubt that existed as to the law on that question. Lord Goddard, C.J., said:

“The learned deputy Judge held that the notice to quit had been waived. If one may say so with respect to the learned deputy Judge, he fell into the error of confusing an acceptance of rent after a notice to quit with an acceptance of rent after notice that an act of forfeiture has been committed. If a landlord seeks to recover possession of property on the ground that breach of covenant has entitl