TOLARAM Vs. AYALDAS

JUDGEMENT

(1.) THE only question that arises for consideration in this second appeal is whether the notice to quit (Ex. P-6) served by the plaintiffs-landlords on the defendant-tenant on 1-7-1960 under Section 106 of the Transfer of Property Act, calling upon him to vacate the suit premises on 31-7-1960, in respect of a monthly tenancy commencing on the 1st--an English Calendar month--was an invalid notice, as it did not expire with the end of the month of the tenancy.

(2.) UNDER Section 106 of the Transfer of Property Act, so far as is relevant for our purpose, in the absence of a contract or local law or usage to the contrary, a lease of immovable property from month to month is "terminable, on the part of either lessor or lessee, by fifteen days' notice 'expiring with the end of a month of the tenancy'". (Underlining (here into ' ') is mine ). The Judicial Committee of the Privy Council in Harihar Banerji v. Ramshashi Roy, ilr 46 Cal 458 at p. 472: (AIR 1918 PC 102 at p. 107), has pointed out that the principles applying to the case were similar to those which were applicable in england and that notices to quit "are to be construed not with a desire to find faults in them which would render them defective but to be construed ut res magis valeat quam pereat. " it is true that a notice to quit must be clear and certain, so as to bind the party who gives it and to enable the party to whom it is given to act upon it, at the time when it is given [doe d. Lyster v. Goldwin (1841) 2 QB 143] and that it must not be ambiguous. But even when ambiguous words are used in a notice, the rule of construction, in the words of Abbott. C. J. , in Doe d. Untingtower v. Culliford (1824) 4 Dow and Ry. 248, is as under: "there is one rule of construction in cases of this nature which is no less sound than ancient, namely, to give such a sense to ambiguous words as will effectuate the intention of the parties. " it has been pointed out in Mulla's Transfer of Property Act, 4th Edition. , at page 619-"the rule has been to make lame and inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver. A liberal construction is, therefore, put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises, or the name of the tenant or the date of expiry of the notice. "

(3.) GENERALLY speaking, a notice to quit should expire 'with the end of a month of the tenancy', which would expire at midnight of the last day, and before the anniversary of its commencement, A notice can, therefore, require a tenant to vacate at or before the midnight of the last day. But even so, as the tenant has the legal right to occupy the premises till the last moment of the midnight, a notice requiring him to vacate on the first moment of the next day cannot also be said to be bad. However, the validity of a notice ought not to depend on such hypertechnical considerations and consequently the Courts have held both-notices expiring on the last day and those expiring on the next day--to be valid, thus leaving out of account the fraction of a clay. The question has been discussed at some length in Sidebotham v. Holland (1895) 1 QB 378, where the tenancy commenced on the 19th May 1890 and the question was whether the notice to quit on 19th May 1894 given by the landlord on November 17, 1893, was a good notice when the law required six Calendar months' notice to quit. The said notice, which expired on the anniversary of the day on which the tenancy commenced, was objected to on the ground that it was bad because it expired one day too late. Lindley, L. J. , repelling the contention, said: "the contention is that, as the tenancy commenced, 'on' the 19th and not 'from' the 19th, the notice should have been to quit on the 18th and not on the 19th. Having regard to the decision in Clayton's case (1585) 5 co. Rep. la, I think that, although the agreement was signed on the 19th, and the tenant can hardly in fact have been in possession the whole of that day, yet, in point of law, that day must be treated as the first day of the tenancy and as part of the term for which the house was agreed to be let. The tenancy cannot, therefore, be treated as commencing on the 20th to the exclusion of the 19th. One year from that day, but including that clay, would expire at midnight of the 18th of the next May: Reg. v. St. Mary, Warwick (1853) 1 El and Bl 816; ackland v. Lutley (1839) 9 A and E 879. If, therefore, notice to quit on the 18th were given, it would no doubt be good. Indeed, it is well settled that a notice ought to expire on the last day of the current year: see right v. Darby (1786) 1 TR 159; Doc v. Dobell (1841) 1 QB 806. But, although a half-year's notice to quit on the 18th would be correct, it does not follow that a notice to quit on the 19th, which is the anniversary of the day on which the tenancy commenced, is bad, and I am clearly of opinion that it is not. I have looked at all the decisions which were referred to in the argument and at many more, and I can find none in which it has been held that a half-year's notice to quit on the anniversary of the day on which the tenancy commenced is bad. I should be very much surprised to find such a case. The validity of a notice to quit ought not to turn on the splitting of a straw. Moreover, if hypereriticisms are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. But such subtleties ought to be and are disregarded as out of place. There are several decisions in which notices like the present have been held sufficient. In Kemp v. Derett (1814) 3 camp 510, a yearly tenancy began on October 29; it was determinable at any time on a three months' notice to quit. Lord Ellenborough said, 'i am quite clear that the notice should have expired on January 29, April 29, July 29, or October 39. Again, in Doe v. Matthews (1851) 11 CB 675, a yearly tenancy commenced on May 7, 1850; a six months' notice to quit on May 7, 1851, was held good'". (The underlining (here into ' ') is mine ). The learned Lord Justice further pointed out that when considering the validity of a notice to quit given in time and expiring on the anniversary of the commencement of a tenancy, no distinction should be drawn between tenancies commencing 'at' a particular time or 'on' a particular day and 'from' the same day, because 'at', 'on', 'from' and 'on and from' are for this purpose equivalent expressions, and any distinction between them for such a purpose as this is far too subtle for practical use. In consonance with the aforesaid principles, in Page v. More (1850) 15 QB 684, where the notice to quit required the tenant to give up possession at 12 noon on the day when the tenancy was determinable, it was held by Lord Campbell, C. J. that the notice was bad. The learned Chief Justice ruled: "the defendant, holding as he did, was entitled to keep possession till midnight on the 25th of December. The notice is not given in technical language; but it is in terms which admit of no doubt as to the meaning. . . . I can see no difference between a wrong day and a wrong hour of the day: a demand for the 24th would have been insufficient; and this is equally so. "