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IN THE HIGH COURT OF MADRAS
Eranhikal Talappil Moosa Kutty
Versus
Kozhikote Puthia Kovilakath
Decided On : 6 January, 1928
Notice to Quit - Tenancy - Section 3, T. P. Act - Section 106, T. P. Act
Fact of the Case:
The appellant contested the lack of notice terminating the tenancy, while the respondent argued that no notice was necessary due to the terms of the tenancy. The court sought a finding on whether the receipts were for the whole year and accepted the finding that the rent paid related to a specific period, not the entire year. The appellant further contended that the absence of a notice to quit rendered the suit in ejectment invalid.
Finding of the Court:
The court accepted the finding that the rent paid related to a specific period, not the entire year, and rejected the appellant's contention regarding the absence of a notice to quit.
Issues: The issues revolved around the necessity of a notice to terminate the tenancy and its impact on the suit in ejectment.
Ratio Decidendi: The court held that while notice to quit may be necessary for yearly tenancies or tenancies-at-will, it is not required if the terms of the lease do not provide for giving notice. The court emphasized that the parties are governed by the terms of the contract and the law enacted in Section 106, T. P. Act, cannot apply if there is a contract as to giving notice or waiving notice.
Final Decision: The court dismissed the second appeal with costs, upholding the finding that the absence of a notice to quit did not render the suit in ejectment invalid.
1. The contention of the appellant is that no notice was given to the appellant terminating the tenancy. It is contended for the respondent that the terms of the tenancy were such that no notice to quit was necessary as a condition precedent for bringing a suit in ejectment. Two documents, Exs. 2 and 3, have been filed in the case. They appear to be receipts granted by the respondent to the appellant for rent for the year M.E. 1097. But it is not quite clear whether the rent paid was for the whole of 1907. If the respondent had received rent for the whole of the year 1097, he was not entitled to bring a suit in ejectment before the close of the year. In order to dispose of the case satisfactorily it is necessary that there should be finding on the question
whether Exs. 2 and 8 were granted by the Kovilakam of defendant 2 (respondent) herein, for the rent for the whole of the year 1097.
2. The District Judge will record a finding on the issue and submit the same within one month after the vacation. Both sides are allowed to adduce fresh evidence. Seven days will be allowed for filing objections.
3. [The District Judge submitted the; folio win findings.]
4. I, therefore, find that the rent of Rule 75 paid under the receipts Exs. 2 and 3 relates to the period 1st December 1920 to 30th November 1921 and not to M.E. 1097.
5. [After the return of the finding the Court delivered the following judgment.]
6. The finding of the learned District Judge is not seriously challenged by the appellant. We accept the finding that the rent of Rs. 75 paid under Exs. 2 and 3 relates to the period 1st December 1920 to 30th November 1921 and not to M.E. 1097. This finding is against the appellant. If it be in his favour the second appeal would have to be allowed.
7. Mr. Kuttikrishna Menon raises a further contention that, as there had been no notice to quit before the date of suit, the plaintiffs cause of action to eject the defendant did not arise. His argument is that in every case of tenancy determination of the tenancy is the cause of action for a suit in ejectment and in order to determine the tenancy there must be notice to that effect; and in this case there was no such notice and, therefore, the suit is bad. Reliance is placed upon Deo Nandan Pershad v. Meghu Mahton [1907] 34 Cal. 57 for the position that a notice to quit is a condition precedent for a suit in ejectment whatever, may be the nature of the tenancy. In that case it was found that the defendant had been recognized as a tenant. The question was whether a demand to give up possession was necessary in order to enable the plaintiff to sue in ejectment. Mookerjee, J., observed at p. 63:
When a person has acquired possession of the lands of another, which he continues to retain, and when the holding is not for a fixed or determinate time, a manifestation of intention is required before the tenant can be called upon to surrender possession to the owner.... A refusal to surrender, or a non-compliance with the demand, furnishes the gist of an action for the recovery of the land, and the occupant may then be regarded as a wrongdoer.
8. It cannot be said that in all cases the cause of action to sue in ejectment arises only when the tenant becomes a wrongdoer by reason of his staying on after notice to quit is given. If a tenant is a yearly tenant or a tenant-at-will, no doubt notice to quit would be necessary; but if according to the terms of the lease the tenant is not entitled to notice, it cannot be said that the cause of action does not arise till the period given in the notice to quit expires. Section 3, T. P. Act, enacts how land in what cases a lease of immovable property determines, and Clause (h) says:
On the expiration of a notice to determine the lease or to quit or of intention to quit the property leased duly given by one party to the other;
and notice to quit is only one of the modes in which a tenancy could be determined.
9. In this case the lease was an oral lease and one of
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