WILLIAM JACKS AND CO Vs. JOOSAB MAHOMED

JUDGEMENT

(1.) The plaintiffs in this suit granted to the defendant a lease of a part of a bungalow and compound in the Nesbit Road, Mazgaon, for the period of one year from April 1, 1918. The lease terminated by efflux of time on March 31, 1919. But the defendant held over. There had been a dispute as to alleged encroachments by the defendant and the plaintiffs now aver that they require the premises included in the original lease as well as those encroached upon for their own use and occupation, and gave notice on December 30, 1922, terminating the tenancy as from February 1, 1923.

(2.) It is admitted that the defendant required the premises to the knowledge of the plaintiffs for manufacturing purposes and that he has so used them. The defendant accordingly pleads that he is entitled to six months notice Under Section 105 of the Transfer of Property Act, and that the notice given on the supposition that the tenancy was monthly is ineffectual to terminate the lease. An against thisplaintiffs contend that the defendant is estopped from setting up an yearly tenancy by his letter in reply to the notice to quit. That letter is Exh. G dated January 16, 1923, of which the concluding paragraph is as follows: Your clients lease wish their superior landlord has expired long since and their possession is also that of a monthly tenant.

(3.) I have no doubt the word "also" means that you are like me a monthly tenant. This is an admission by the defendant that he is a monthly tenant but he would be entitled to show that this admission is wrong unless it operates as an estoppel. But I feel dear that there is no estoppel and for the following reasons: In the first place the facts affecting the tenancy were within the knowledge of both the parties, and when that is so, there is no scope for the doctrine of estoppel: Honapa V/s. Narsapa (1898) I.L.R. 23 Bom. 406, 408.