DEVAKI Vs. ALAVI

JUDGEMENT

(1.) THE appellant sent Ext. A2 lawyer's notice dated 12-7-1971 stating that the tenancy is terminated with effect from 30-7-1971. This notice reached the respondent on 16-7-1971. He sent Ext. A3 reply notice. It is common case that rent till and inclusive of that for June 1971 has been paid and accepted and that rent offered was not accepted by the appellant thereafter. THE suit was filed on 23-8-1971.

(2.) THERE is no evidence in this case to support the contention raised on behalf of the respondent in the course of the argument before us that the appellant had made an earlier demand for surrender of possession of the leasehold at some time after the expiry of the term of three months. The evidence of pw. 1, an attestor to Ext. Al and the husband of the appellant's uncle's daughter, which was relied on by the learned counsel for the respondent is: 'after 3 months the respondent did not surrender possession. I have demanded surrender of possession. ' It is not clear as to which demand he refers; to, Ext. A2 demand or any other demand for surrender, of possession. Even assuming that the reference is to a demand other than Ext. A2 demand, we are unable to treat the demand, made by pw. 1 as one competently made in the absence of proof of his authority to do so on behalf of the plaintiff-appellant. The respondent as dw. 1 denies of any such demand for surrender after three months and prior to Ext. A2 notice. According to him the demand for surrender of the leasehold was for the first time made only by Ext. A2, lawyer's notice. We will therefore proceed to decide this appeal accepting the case advanced on behalf of the appellant that demand for surrender was made only as per Ext. A2 notice.

(3.) "notice under this section (S. 106 of the Act) is not necessary, and a mere demand will suffice if the lease is on condition that the land demised should be surrendered whenever required. " (Mulla's transfer of Property Act, Setalvad's (Sixth) Edition, p. 669 ). The proposition of law stated above is beyond challenge, in so far as parties are free to create a tenancy at will simpliciter by mutual consent, and a stipulation to the effect that the lessee shall surrender possession, of the property leased on demand made in that behalf by the lessor, is nothing but a stipulation that the lease is determinable at the will of the lessor, and a 'contract to the contrary' as envisaged by S. 106 of the Act. Ext. Al in this case is a composite document creating a lease for a specified term of three months during which period neither party can except by a bilateral act terminate the lease, followed by a tenancy at will simpliciter not amounting to a renewed tenancy by holding over under S. 116 of the Act, and therefore, neither of the two sections S. 106 and 116 of the Act, is a bar to a suit for recovery of possession of the property leased nor is any notice under S. 106 of the Act required to determine the tenancy; A tenancy at will stands determined by any demand for surrender of possession of the property made by the landlord and such demand may be the one contained in the plaint. By Ext. A2 lawyer's notice the lease was determined with effect from 30-7-1971 and the landlord-appellant demanded surrender of possession of the property as on that date. The landlord-appellant therefore was entitled to sue for recovery of possession of the property from and after that date.