RAJ BEHARI NATH Vs. KAILAS CHANDRA DUTT

JUDGEMENT

(1.) This is an appeal by the defendants in an action in ejectment. The sole question in controversy at this stage is, whether the notice to quit served by the plaintiff on the defendants is sufficient in law to terminate the tenancy. In the decision of this question, the assumption has been made that the defendants are entitled to a six months notice terminating with a year of their tenancy, provided that it be ultimately found that the defendants hold a tenancy which can at all be legally terminated by a notice to quit. The Subordinate Judge has found on this basis that the notice is sufficient and has remanded the case for adjudication on the merits.

(2.) On the 19th Aswin 1318, which corresponded to the 16th October 1911, the plaintiff served the defendants with notice to quit on the last day of Chaitra, 1318, which corresponded to the 13th April, 1912. The defendants maintain that if they are at all liable to be ejected, they are entitled to six months notice calculated according to the British Calendar. The contention of the plaintiff is that the defendants are entitled to notice of the requisite period calculated according to the Bengali Calendar. In support of the latter view, reliance has been placed upon the oases of Gopi Nath Chongdar v. Abdul Gafur 30 Ind. Cas. 886 : 22 C.L.J. 74, Hari Das Tanti v. Upendra Narain, Shaha 16 Ind. Cas. 937 : 22 C.L.J. 75 : 16 C.L.J. 74 and Debendra Nath Bhowmik v. Syama Prosanna Bhowmik 11 C.W.N. 1124. On behalf of the defendants-appellants, it has been contended that these cases are distinguishable, because in each of them the tenancy had been created before the Transfer of Property Act came into operation and consequently no question arises as to the rights and liabilities of the parties under Section 106 thereof. In the present case, it is said that the tenancy must be deemed, for the decision of the present question at any rate, to have been created on the 11th December 1885, although it is not disputed that there was a pre-existing tenancy which dated back at least to the 8th March 1878, if not to an earlier period, and was confirmed on the 16th March 1879. It is needless to determine whether a new tenancy was or was not created in 1885; we shall assume, for the purposes of the present argument and for that purpose alone, that a new tenancy was then created and that the rights and obligations of the parties in respect of ejectment must be determined according to the provisions of the Transfer of Property Act. The question arises, what is the effect of Section 106?

(3.) Section 106 provides that in the absence of a contract or local law, or usage to the contrary, a lease of immoveable property for agricultural purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee by six months notice expiring with the end of a year of the tenancy. On behalf of the appellants it is argued, with reference to Section, 4 Sub-section (1), of the General Clauses Act, 1897, read with Clauses (33) and (59) of Section 3, that the terms year and month mean year and month calculated according to the British Calendar. In our opinion this contention is of no avail to the appellant. The terms of the lease of 1885 show that there was an implied contract that the tenancy would be held from year to year according to the Bengali Calendar. The rent is made payable in instalments on certain specified dates which are the last days of months of the Bengali year, and there is no room for doubt or controversy that the parties intended that the tenancy would be regulated according to the Bengali year. If, then, there is a tenancy from year to year on the basis of a year calculated according to the Bengali Calendar, it is impossible to maintain the view that a month of that year must be calculated according to the British Calendar; clearly the month must also be calculated according to the Bengali year. Consequently the defendants are entitled to six months notice, calculated according to the Bengali Calendar, and expiring with the end of a year of their tenancy, which terminates with the Bengali year. Prom this point of view, the objection urged by the defendants turns out to be groundless. The notice was served on the 29th Aswin 1318 and the defendants were required to quit by the end of Chaitra 1318; consequently they had six months notice terminating with a year of their tenancy. This was strict compliance with the requirements of the law.