BENODE BEHARI MUKHERJI Vs. SHEIKH MOTALEB ALI

JUDGEMENT

(1.) THE only point I have been called upon to decide in this second appeal by the plaintiffs (lessors) in an action in ejectment is whether or no the notice dated June 14, 1952, calling upon the defendant lessee "to deliver vacant and peaceful possession" of the subject of the lease (a parcel of land admeasuring 2 odd cottahs) "immediately with the end of the year of tenancy" comes on the edge of the law, both the courts below hold, it does. Vagueness, they observe, defeats such a notice which could only mislead the defendant.

(2.) A number of authorities have been cited at the Bar. But one which contributes most has not been. It is (1) Jatindra Nath Shee v. Malai Ham Shaw: 88 C. L. J. 119 which holds that a notice demanding possession, "with the end of 31st July, 1945 or at the end of a month of your tenancy which would expire next after fifteen days from the receipt of this notice" is neither "bad nor invalid nor insufficient" and "had duly determined the defendant's tenancy". Of the two alternatives, the first demanding possession "with the end of 31st July, 1945" failed, the notice having been served on July 19 preceding, three days too short. It had "no answer", to quote P, N. Mookherjee, J. , whose decision Jatindra Nath Shee's case is. But the second alternative demanding possession ":at the end of a month of your tenancy etc. " was held to be too good. (2) Ganga Prasad v, Prem Kumar Kohli: A. I. R. 1949 All. 173, and (3) Doe d. Digby v. Steel; 13 R. R. 768, cited on behalf of the appellants, are examples of notices with two alternatives-one defective and another not. Now, of the two alternatives, if one is bad and another good, the good one is good by itself. It does not need an alternative to make it good.

(3.) THAT is just the case before me. The notice dated June 14, 1952, demands possession "immediately with the end of the year of tenancy". What is the year of tenancy? And when does it end? The lease (Ex. 2) is for Falgun, 1344 B. S. to Chaitra, 1350 B. S. It is dated Falgun 3, 1344 B. S. corresponding to February 15, 1938. A unilateral document, it offends against the third paragraph of section 107 of the Transfer of Property Act. So the legal form fails. But neither for agricultural nor manufacturing purposes, it becomes a lease from month to month by the "deeming" provisions of section 106 ibid, not terminable however by fifteen days' notice but by six months' expiring with the end of the year of the tenancy, because of section 9 (1) (b) (iii) of the Non-Agricultural Tenancy Act, 20 of 1949. It is now time to answer the questions posed. The year of tenancy is from Falgun 3 of a Bengali year, as is the evidence of the first appellant (P. W. 2), to Falgun 2 of the succeeding Bengali year, just when twelve months expire [ (4) Indian Iron and Steel Co. Ltd. v. Baker Ali: 64 C. W. N. 641], And the year of the tenancy therefore necessarily end on Falgun 2 of a Bengali month.