MEGHJI VALLABHDAS Vs. DAYALJI LALJI AND COMPANY

JUDGEMENT

(1.) The facts in this ease are all admitted.

(2.) The defendants occupied a godown on a lease from the plaintiff which expired on October 20, 1923. On that day the defendants sent a letter to the plaintiff saying that, as the Colaba Cotton Green was being removed to Sewri on November 1, they would vacate the godown on October 30. On the same date the plaintiffs attorneys replied to the defendants saying that if they did not vacate the godown during the course of that day they would have to give a proper notice to quit to the plaintiff, otherwise he would hold them responsible for all. damages and consequences, and further that the plaintiff did not accept their proposal to vacate the godown on October 30. A somewhat similar letter was sent by the plaintiff's solicitors on October 22, in which it was said that the plaintiff would insist upon a proper notice for giving quiet and peaceful possession, otherwise he would hole them responsible for all damages and consequences. On the same day the defendants solicitors wrote to the plaintiff's solicitors denying that the plaintiff was entitled to any notice to quit as alleged, or that he could hold the defendants responsible for any damages or consequences. It was further said that the defendants would vacate the godown by the end of that month. However, as a matter of fact, the defendants vacated the godown on October 26, and a letter was sent to the plaintiff's attorneys on that date informing them of that fact. Further correspondence ensued in November; on the 12 of that month, the plaintiff's solicitors wrote claiming the sum of Rs. 1166-10-8 made up of two months proportionate rent under the old lease; one month's rent being rent for the month commencing from October 21, 1923, during part of which the defendants continued to be in possession of the godown; and another month's rent being claimed as an extra month's rent in lieu of giving a proper legal notice. Defendants attorneys replied on November 14, denying the plaintiff's right to this claim and offering to pay Rs. 117 as compensation for use and occupation for six days from October 21 to 26, 1923. The suit was filed on November 23, and the plaintiff claims the amount of Rs. 1166-10-8 with interest.

(3.) The main point for determination is whether the plaintiff is entitled to take up the position that the defendants became tenants holding over under Section 116 of the Transfer of Property Act, so that they were under an obligation to pay rent, at any rate, for the month in which there was occupation and to give a proper legal notice to quit, that is to say. notice of their in tention to quit under Section 106 of the Transfer of Property Act, modified as it is by the Bombay usage requiring one month's (instead of fifteen days ) notice. Mr. Mirza's contention is that the defendants did in fact hold over, although it was only for a period for six days; that this gave the plaintiff the option of treating the defendants either as trespassers or as tenants in accordance with the terms of Section 116; that the plaintiff exercised his right of treating them as tenants, and so is justified in demanding the two months rent claimed in the plaint. On the other hand, Mr. Kamdar's main argument is that there must be not only the assent of the plaintiff to the holding over but the consent of the defendants to their continuing as monthly tenants in accordance with Section 116.