M. Karpagavinayagam, J.@mdashPlaintiff is the appellant herein. He filed a suit for ejectment and damages for use and occupation. The suit was decreed as prayed for by the trial Court. However, in the appeal preferred by the defendant/respondent herein, the judgment of the trial Court was set aside and the suit was dismissed. Hence, this Second Appeal. The plaintiff is a Muslim Educational Charitable Trust. According to the plaintiff, the defendant Siraj Begum took the property on lease on a monthly rent of Rs. 25/-. From the month of April, 1984, the rent was enhanced to Rs. 100/-. Accordingly, a fresh lease deed was executed on 01.05.1984 between the parties. The plaintiff also effected repairs to the building during the occupation of the defendant. However, the defendant has not paid rent as agreed by her. Therefore, the plaintiff issued a notice on 12.06.1985, terminating the lease and calling upon the defendant to surrender the possession and to pay the arrears. Since the same was not done, the plaintiff filed the suit for the above relief''s.
2. According to the defendant, the suit is not maintainable, as the suit has been filed not by the trustees but by the Secretary of the plaintiff. Furthermore, the notice of termination u/s 106 of the Transfer of Property Act would not satisfy the requirements of the said Section. Therefore, the notice is invalid. The allegation that the defendant has executed a rent deed on 01.05.1984 agreeing to pay Rs. 100/- is not true. Therefore, the suit is liable to be dismissed.
3. On the basis of the above pleadings, necessary issues were framed by the trial Court. During the course of trial, on the side of the plaintiff, P.W.I, Mohammed Mubarak, Secretary of the Institution, was examined and Exs.A-1 to A-40 were marked. On the side of the defendant, no witness was examined and Exs. B-1 to B-5 were marked.
4. On appreciation of the materials available on record, the trial Court decreed the suit in favour of the plaintiff, holding that the suit is maintainable and the notice u/s 106 of the Transfer of Property Act is valid. Aggrieved by the same, the defendant, namely, Siraj Begum filed an appeal before the lower appellate Court, which, in turn, allowed the appeal and dismissed the suit, holding that the suit is not filed by the trustees and Section 106 notice is not valid. Hence, this Second Appeal.
5. At the time of admission, this Court formulated the following substantial questions of law:
i) Whether the notice Ex.A-2 satisfies the requirements of Section 106 of the Transfer of Property Act?
ii) Whether the finding of the appellate Judge that Ex.A-2 was not served on the defendant is vitiated by his failure to apply the correct principles of law ?
iii) Whether the suit is bad for non-joinder of the new Secretary of the trust ?
6. I have heard the learned counsel for the appellant as well as the respondent.
7. On going through the entire records and the judgments impugned, 1 am of the view that the finding given by the trial Court is perfectly correct and the observations by the lower appellate Court for allowing the appeal regarding the validity of the notice and the maintainability of the suit are perfectly wrong. Admittedly, the suit has been filed by the plaintiff institution and on behalf of the institution, as per the authorisation of the trustees, the Secretary filed the suit. Since the said Secretary died during the pendency of the trial, another Secretary took charge and he was allowed to prosecute the suit, as per the other resolutions, which are Exs.A-28 to A-36. When the records are available to show that the institution is the plaintiff and the said plaintiff is to be represented by the Secretary, as per the resolutions passed by the Trustees, there is no point in holding that the suit is not filed by the Trustees and, as such, the suit is not maintainable. On this aspect, the trial Court elaborately discussed and correctly concluded that the suit is maintainable. With regard to the notice u/s 106 of the Transfer of Property Act, it is held by the lower appellate Court that without giving 15 days'' time, the tenancy was terminated through the notice sent by the plaintiff to the defendant. Ex.A-2 is the copy of the notice sent by the plaintiff on 12.06.1985. Ex.A-3 is the unserved notice, sent to the defendant. It is the case of the defendant that the notice, Ex.A-2, is not in accordance with the provisions of Section 106 of the Transfer of Property Act, since 15 days'' time was not given. But, on a perusal of Ex.A-2, it is clear that the tenancy was terminated only by the end of tenancy month and the defendant was requested to hand over the possession on 31.07.1985. It is also further mentioned in Ex.A-2 that the defendant was called upon to surrender the possession on or before 31.07.1985 and the defendant was liable to pay damages for the use and occupation from 01.08.1985. This would certainly indicate that the tenancy was terminated through the notice Ex.A-2 dated 12.06.1985 only at the end of 31.07.1985. By this, it is manifest that the defendant was allowed to occupy the building in question up to the end of 31.07.1985 and after termination of tenancy, the defendant is liable to pay damages for the use and occupation of the building from 01.08.1985. Merely because the notice contains the wordings "tenancy is hereby terminated", it would not mean that the tenancy is terminated on the date of notice i.e., on 12.06.1985.
8. In this context, a ruling has been cited by the learned counsel for the appellant reported in
The notice to quit requiring the tenant to vacate the premises "within the month of October 1962 otherwise he would be treated as trespasser from 1st November, 1962" made the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month. The tenancy was, therefore, sought to be determined on the expiration of the month of October, 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by Section 106, It was in the circumstances a valid notice which effectively determined the tenancy of the tenants with effect from the midnight of 31st October, 1962.
The above observation would make it clear that the plaintiffs intention, while issuing notice asking the defendant to hand over the possession on or before 01.08.1985, would clearly indicate that the tenancy would become terminated only on 31.07.1985. Under those circumstances, it cannot be contended that the notice is void.
9. Another point advanced on the side of the defendant is that the notice was not served. But, as correctly pointed out by the trial Court, the service of notice was evaded by the defendant, as is reflected in the endorsement made in the postal cover, Ex.A-3. Therefore, the findings given by the lower appellate Court, which are against the evidence, are liable to be set aside. Second Appeal stands allowed with costs. Consequently, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored.
