MALIK, CJ. :- These two special appeals are connected and can be disposed of by one judgment. Letters Patent Appeal No. 4 of 1952 is against the decree in Second Appeal No. 855 of 1946 and Letters Patent Appeal No. 3 of 1952 is against an order in Execution Second Appeal No. 231 of 1950.

2. The facts are not complicated but some difficulty has been created by reason of a recent enactment. The defendant had taken a house on rent under a registered lease dated 27-4-1938, for a period of one year. On the expiry of the year the defendant continued to remain in possession. The plaintiff alleged in the plaint that after the expiry of the year the tenancy became a month to month tenancy according to the Hindi calendar and the defendant was liable to pay to the plaintiff rent at the rate of Rs. 55/- per month. These averments were admitted by the defendant in the written statement. The fact being admitted in the pleadings, it is not possible for learned counsel now to urge that the tenancy was not a month to month tenancy according to the Hindi calendar and the notice to quit was, therefore, defective.

3. On 8-12-1944, the plaintiff said that rent for four months had been in arrears and gave the defendant a notice to quit with effect from the end of the Hindi month. A second notice was given on the 23rd of December but we are not concerned with it, as that notice was given as a matter of extra precaution. On 10-1-1945, the plaintiff filed a suit for realisation of rent and for ejectment of the defendant.

4. One of the pleas taken in defence and repeated before us was that the notice to quit was not in accordance with law. This argument was based on the ground that the tenancy was not a month to month tenancy in accordance with the Hindi month. The lower Courts have on the basis of evidence recorded a finding that the tenancy was a month to month tenancy according to the Hindi month. In view, however, of the admission in the written statement it was not open to the defendant to urge that the tenancy was not in accordance with the Hindi calendar month. Be that as it may, on the findings recorded that the tenancy was a month to month tenancy according to the Hindi month and the notice dated 8-12-1944, required the defendant to vacate the premises at the end of the Hindi month, the notice was rightly held to be a valid notice.

5. As regards the arrears, the plaintiff had claimed that a sum of Rs. 220/- was due for four months in accordance with the Hindi month commencing from the 3rd of September and ending with 29-12-1944. The defence was that on 2-11-1944, the defendant had sent a draft on the Jwala Bank to the plaintiff at Calcutta for a sum of Rs. 110/- to cover the rent of the first two months that was in arrears. The plaintiffs case was that this draft never reached him and he had already, when on a previous occasion the defendant had sent rent by a bank draft, written to the defendant that it caused inconvenience to him and that he should sent rent by money order and not by bank drafts.

6. The Manager of the Jwala Bank gave evidence that the draft had not been cashed. The plaintiffs statement has been believed that the draft was lost in the post and it never reached him. The defendant was examined as a witness and he did not say that the plaintiff had ever agreed to any arrangement that payment may be made by frank drafts. The fact, therefore, that, the defendant sent a bank draft to the plaintiff on 2-11-1944, which, however, never reached him, cannot be treated either as a valid payment or even as a valid tender. On 11-12-1944, the defendant sent a money order for Rs. 55 /- but this was addressed to Rajnarain Phoolchand. The learned Munsif has observed as follows :

"The money order for Rs. 55/- was sent on 11-12-1944, to Rajnarain and Phoolchand. It is not shown who is Rajnarain and Phoolchand."

Even if it be assumed that Rajnarain Phoolchand represented the plaintiff and the plaintiff had refused to receive the money order,