MANGAL SEN Vs. SMT. KRISHNA DEVI

JUDGEMENT

(1.) THE question of law referred to us by the learned Single Judge is whether acceptance of rent after the institution of suit would amount to waiver of notice Under Section 113 of the Transfer of Property Act in a case where the UP (Temp.) Control of Rent and Eviction Act has no application? We would like to make the question more specific by adding a few words thereto. The question as reframed would be : "whether acceptance of the money, share, service or other things to be rendered periodically or on specified occasions to the lessor by the lessee called the rent within the meaning of Section 105 of the Transfer of Property Act after the institution of suit would amount to waiver of notice Under Section 113 of the Transfer of Property Act in a case where the UP (Temp.) Control of Rent and Eviction Act has no application - We have made this alteration in the question as the word "rent" is often used to convey other meanings.

(2.) SECTION 111(h) of the Transfer of Property Act runs as follows : "A lease of immoveable property determines 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." Section 113 of the Transfer of Property Act runs as follows : "A notice given Under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting." Illustration (a) to Section 113 of the TP Act runs as follows : "A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration o £ the notice. The notice is waived." If is thus clear that if a lessor accepts as rent the amount tendered by the lessee, it indicates an intention on the part of the lessor to waive the notice. Such an act on the part of the parties to the lease shows an intention to treat the lease as subsisting which impliedly means that the notice given Under Section 111(h) of the Act stands waived.

(3.) IN the case of Ram Daval v. Jawala Prasad, AIR 1986 All. 623, this Court, following the decision in Maniklal v. Kadambani, AIR 1926 Col. 763 held that the rent if accepted even after the institution of a suit would amount to waiver of the notice to quit the leased property within the meaning of Section 113 of the T.P. Act. We are in agreement with this view as, in our opinion, though the institution of a suit may be a circumstance to be taken into consideration while determining the intention of the lessor to treat the lease as subsisting or not, it per se cannot be a condition or circumstance which may debar the parties from treating the lease as subsisting by voluntarily waiving the notice to quit the property leased. Section 113 of the T.P. Act read with Section 116 of the Act makes it clear that the parties to the contract of lease have a right to continue the lease even after it comes to an end. If two persons have a right to create a lease at any time there can be no reason for holding that they cannot continue the lease by waiving the notice to quit. The notice to quit being the act of a party himself can always be waived by him. The effect of waiver on the suit will only be that the Plaintiff will no longer be entitled to get the relief of ejecting the tenant. The suit for ejectment of a tenant is filed on the ground that the expiry of the notice to quit given Under Section 111, Clause (h) of the T.P. Act had rendered the possession of the lessee without title and the landlord with title seeks to eject him. But once the notice to quit is waived, i.e. to say withdrawn by accepting the rent subsequent to the date of expiration of the notice, the lease becomes subsisting and the possession of the lessee becomes one with title and the decree for ejectment cannot be passed.