PT JANKI NATH KAUL Vs. PT JIA LAL

JUDGEMENT

(1.) THIS is defendants second appeal and arises out of a suit instituted by plaintiff for ejectment from a portion of a house which had been given on rent to the defendant by virtue of a lease deed dated 26th of August, 1952. The period of tenancy was one year only. The defendant remained in possession of the suit property even after the expiry of the period of tenancy and continued paying rent to the landlord. On 1st of May, 1957 the plaintiff landlord served a notice expiring with the end of the month on the defendant for determination of the tenancy.

(2.) IT is contended on behalf of the appellant that by accepting rent by M. O. for a period subsequent to the determination of the tenancy, notice to quit the premises was waived by the plaintiff and, therefore, the suit of the plaintiff was not maintainable. Reliance is placed upon Illustration (a) to section 113 of the Transfer of Property Act and it is argued that mere acceptance of rent is sufficient to constitute waiver. The only question that falls for determination in this appeal is, therefore, whether the receipt of the amount by the plaintiff by M. O. which is alleged by the defendant to be the rent for a period subsequent to the determination of the lease would be sufficient to constitute waiver of the notice to quit the premises. Section 113, Transfer of Property Act reads as under :