ABDUL HAMEED RAWTHER Vs. BALAKRISHNA PILLAI

JUDGEMENT

(1.) THIS is a defendant's appeal under S. 5 of the Kerala high Court Act. 1959 from the judgment of our learned brother, Raghavan J. , in s. A. No. 1242 of 1965; and it arises out of a suit for eviction of the defendant from a shop building held by him under a lease deed Ext. D-1 dated 28-9-1961, and also for arrears of rent and future rent. Ext. D-1 was executed by the defendant in favour of the first plaintiff; and the rights of the first plaintiff subsequently devolved on the third plaintiff. The lease was for a period of one year on a monthly rent of Rs. 17. 50 payable before the 30th of every month. The defendant also paid a premium or advance of Rs. 200/-in consideration of the lease. The period of the lease expired on 28-9-1962; but the defendant remained in possession of the "shop building after the expiry of the said period, and paid rent as provided in Ext. D-1, till the end of September 1963. Thereafter he defaulted payment of rent. The defendant was, therefore, called upon several times to surrender the building and pay the arrears of rent; but he did not do so in spite of notices sent to him. Ext. D-4 dated 4-2-1964 and Ext. D-3 dated 5-5-1964 are two notices issued to the defendant on behalf of the landlord. Both Exts. D-4 and D-3 required the defendant to surrender the building within 15 days of the date of the said notices. The defendant did not comply with the demand; and therefore this suit was instituted.

(2.) THE defendant contended among other things that the suit was not maintainable, as the tenancy of the building had not been validly terminated. This contention was apparently based on the provisions contained in s. 106 and 116 of the Transfer of property Act, 1882. S. 106, the first part of which alone is relevant, reads as follows: "106. In the absence of a contract or local law or usage to the contrary, a lease of immovable 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 immovable 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. " Section 116 deals with the effect of holding over of the property after the determination of the lease; and it reads "116. If a lessor underlassee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in S. 106. "

(3.) THE above question arose pointedly for decision before the Federal Court in Kai Khushroo v. Bai Jerbai. AIR. 1949 F. C. 124. That case arose out of a suit for eviction of a lessee of a building. THE period of lease expired on 31-8-1942; and the landlord, had issued notice to the lessee, requiring him and the sub-lessees to vacate the building on the expiry of the period. But they did not surrender the building. THEy continued to pay the rent and the landlord continued to accept the same, till the suit was instituted on 7-12-1945. It was contended among other things that the suit was not maintainable for want of a proper notice as required by S. 106 of the Transfer of Property Act, as the tenants were holding over the. property under S. 116 of the Act. Dealing with this matter, the Federal Court said: "on the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by S. 116, T. P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of S. 106 of the Act. " THE court also added: "what S. 116, T. P. Act contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. " This decision is clear authority for the position that, in the absence of an agreement to the contrary, S. 116 of the Act would apply to a lessee continuing in possession of the property after the expiry of the period of the lease, and that in such a case, a notice satisfying the requirements of S. 106 is necessary to determine the lease.