Dixit, J.@mdashThis second appeal arises out of an action commenced by the Respondents for the ejectment of the Appellant from the portion of the third storey of a house situated in Sarafa Bazaar. Lashkar and for the recovery of arrears of rent. The Plaintiff''s case was that the premises in question belonged to a firm M/s Hajarimal Hukumchand and the Defendant entered into possession of the house as a tenant of M/s Hajarimal Hukumchand; that on 19th October 1948 there was a partition between the members of the him and in that partition the property tenanted by the Defendant came to their share; that thereafter the Defendant who became their tenant made a default in the payment of rent and refused to vacate the premises in spite of service of a notice calling upon him to pay the arrears of rent, and to vacate the house as the Plaintiffs themselves needed it for their own residence. ''The Defendant admitted that he was a tenant of M/s Hajarimal Hukumchand. He, however, denied that he ever made a default in the payment of rent to the Plaintiffs and added that no notice terminating the tenancy was given to him by the Plaintiffs and if any notice had been given, it was not in accordance, with the provisions of the Transfer of Property Act. The Defendant also denied the genuine requirement of the Plaintiffs. The learned Civil Judge First Class who tried the suit while decreeing the Plaintiffs'' claim for arrears of rent to the extent of Rs. 77/-, dismissed their claim for ejectment. The Plaintiffs then appealed to the District Judge, Gwalior. The learned District Judge gave to the Plaintiffs a decree for ejectment also. The Defendant has now filed this appeal against the decision of the learned District Judge, Gawlior.
2. Two points were urged before me by Mr. Patankar learned Counsel for the Appellant First it was contended that as the Appellant''s tenancy with the Plaintiffs commenced on 19th October 1943 when they got the property in question in a partition and as on that date the Gwalior Transfer of Property Act was in force the provisions of Section 102 of that Act (corresponding to Section 106, T.P. Act) applied in the case and that, therefore, the Plaintiffs were not entitled to get a decree for ejectment when both the courts below found that no such notice had been given by the Plaintiffs to the Defendant. Secondly it was submitted that even if the provisions of section 102, Gwalior Transfer of Property Act did not apply in the case, the Plaintiffs were bound to give a reasonable notice to the Defendant determining the tenancy and as no notice Of any kind was given by the Plaintiffs, they could not get any decree for possession of the property.
3. I am unable to accept the contention of the learned Counsel for the Appellant that in this case a notice u/s 102, Gwalior Transfer of Property Act (corresponding to Section 106 T.P. Act) was necessary. The Appellant''s tenancy with the original lessor, namely, M/s. Hajarimal Hukumchand commenced in 1942. At that time no Transfer of Property Act was in force in Gwalior State. The original lessor could, therefore, eject the Defendant without a notice contemplated by Section 102 Gwalior Transfer of Property Act or Section 106 Indian Transfer of Property Act.
This right of the original lessor to eject the Defendant without a notice under any of the aforesaid provisions was acquired by the Plaintiffs when on 19th October 1948 the tenanted premises came to their share in Partition. This is clear from the provisions of Section 105, Gwalior Transter of Property Act, which correspond to Section 109. Transfer of Property Act and which lays down that if the lessor transfers the property leased or any part thereof or any part of his interest therein, then the transferee, in the absence of a contract to the contrary, shall Posses all the rights.
Section 105, Gwalior T.P. Act is applicable here as on 19th October 1946 the Gwalior Transfer of Property Act Samwat 2001 was in force. The contention that the Plaintiffs should have given a notice u/s 102, Gwalior Transfer of Property Act or u/s 106, Indian Transfer of Property Act is, therefore, untenable.
4. The question then arises whether it was necessary for the Plaintiffs to give a reasonable notice to the Defendant determining the tenancy. Mr. Patankar relying on
In reply Mr. Motilal Gupta submitted on the authority of
There is overwhelming authority in support of the proposition that even in cases not governed by Section 106, Indian Transfer of Property Act, a reasonable notice terminating the tenancy is necessary before the landlord can eject a tenant. The authorities on the point have been noted in Chitaley''s Transfer of Property Act Vol. III (3rd Edn.) at pages 1752, 1753 and 1754 in Note 49 to Section 106, Transfer of Property Act.
The requirement as to a reasonable notice determining the tenancy in cases to which Section 106, T.P. Act does not apply, has not been modified in any way by the Supreme Court''s decision in AIR 1953 SO 228(E). That was a case where the possession of the demised premises was sought on forfeiture of a lease which contained the term that in case of default of payment of the rent, the tenant would have no right over the property. The question that was considered by the Supreme Court was whether the provision on Section 111(g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease was necessary in the case of leases made prior to the coming into force of the Transfer of Property Act, 1882 or to leases executed prior to 1st April 1930.
The Supreme Court held that "the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good con-science and cannot govern leases made prior to the coming into force of the Transfer of Property Act 1882, or to leases executed prior to 1-4-1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing, at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor give an indication by some unequivocal expression of intention on his part of taking advantage of the breach."
These observations and the observations made in paragraph 19 of the judgment of the Supreme Court, indicate that the decision of the Supreme Court in Namdeo v. Narmadabai (E), is an authority only for the proposition that the provision in Section 111(g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and that in cases of leases made before the coming into force of the Transfer of Property Act, 1882 or to leases executed before 1st April 1930 a notice in writing to the lessee of his intention to determine the lease is not necessary in order to complete the forfeiture.
In that case the question of the applicability of the equitable principle, if any underlying Section 106, Transfer of Property Act to leases executed before the Transfer of Property Act came into force, did not arise for consideration and their Lordships have nowhere said that in the case of a lease which does not contain a forfeiture clause and which was executed before the Transfer of Property Act came into force, a reasonable notice determining the tenancy is not necessary. It must be remembered that Section 111 Transfer of Property Act deals with the determination of leases.
Clause (g) of that section provides that a lease is determined by forfeiture in the three cases mentioned therein. Clause (h) lays down that a lease of immovable property is deter-mined on the expiration of a notice to, deter-mine the lease or to quit or of intention to quit the property leased duly given by one party to the other.
The notice duly given as reference to a notice u/s 106, T.P. Act. Now it is obvious that there can be no question of a notice determining a lease u/s 106, T.P. Act where the lease is determined by forfeiture.
The question as to when in the case of a lease containing a nullity clause the forfeiture is complete has no bearing in considering as to when a lease winch does not contain a forfeiture clause, is determined. The Supreme Court decision that in the case of a lease made prior to the coming into force of the Transfer of Property Act containing a forfeiture clause, a notice in writing as a preliminary to a suit for ejectment based on forfeiture of the lease, is not necessary, rests upon the ground that the forfeiture is complete when the breach of the condition or the denial of title occurs and that at this very moment the lease is determined and the bringing by a landlord of a suit for ejectment is in itself an expression of intention on the part of the landlord to take advantage of the breach.
The rule laid down by the Supreme Court in AIR 1953 SC 223(E) cannot, therefore, be applied to a lease which does not contain a forfeiture clause determining the tenancy on a breach of the condition. In such a case if the lease is one executed after the Transfer of Property Act came into force, a notice u/s 106, T.P. Act determining the lease would be necessary and if the lease is one executed before the Act came into force, then a reasonable notice determining the lease would be necessary.
Learned Counsel for the Respondent laid some emphasis on the observations of the Supreme Court in paragraph 23 of the judgment in Namdeo''s case (E) that the statement in 1948 Madras 275 that Sections 105 to 116 Transfer of Property Act are founded upon principles of reason and equity cannot be accepted either as correct or precise". It was argued on the basis of this observation that the provision in Section 106, T.P. Act as to a notice determining the tenancy not being an equitable one cannot be applied to leases made prior to the coming into force of the Transfer of Property Act.
I do not agree with this contention. The Supreme Court qualified the above observation by adding further that "of course, to the extent that those sections of the Act give statutory recognition to principle of justice, equity and good conscience they are applicable also to cases not governed by the Acts". In my opinion if cannot be maintained that it is inequitable to allow a tenant a reasonable time within which to make arrangements for another accommodation by giving him sufficient notice determining the tenancy.
This principle has been given statutory recognition in Clause (h) of Section 111. If then, as I think, it is reasonable and equitable to give a notice to a tenant determining the tenancy Where it is not determined by a forfeiture clause, then the observation of the Supreme Court that Sections 105 to 116 T.P. Act to the extent that they give statutory recognition to principle of justice, equity and good conscience can be applied also to cases not proved by the Act, would lend support to the view that in the case of leases made prior to the coming into force of the Transfer of Property Act and not containing a forfeiture Clause, a reasonable notice determining the tenancy would be necessary.
I am, therefore of the view that in this case where a lease was made before the Transfer of Property Act came into force and which has not been proved as containing a forfeiture clause, the Plaintiff-Respondents should have given to the Appellant a reasonable notice determining the tenancy; As to the decision in Madh BLJ 1955 HCR 522 (F), it is sufficient to say that it is distinguishable on the ground that in that case the lease contained a forfeiture clause and therefore, the learned Chief Justice following 1953 Supreme Court 228(E) held that a notice determining the tenancy was not necessary in that case.
5. In the instant case the Plaintiffs gave a notice on 23rd May 1950 asking the Appellant to vacate the premises as they needed the premises for their own use and as the Appellant was in arrears of rent. This notice was sent by registered post. The Plaintiffs alleged that this notice was returned with the postal endorsement that the Defendant refused to accept it. This endorsement was not proved by calling in evidence the postman who tendered the registered letter to the Defendant.
The Courts below, therefore, rightly held that the endorsement was not admissible in evidence in proof of the allegation that the cover was tendered to and refused by the Appellant on the date of the endorsement. In Shripad v. Kanhaiyaial Madh BLJ 1955 HCR 702 (G), it has been held that an endorsement on a cover of the letter by a postal peon drat the cover was tendered to the addressee on a certain date and was refused, is at best a record of a statement by the postal peon and that events recited therein must be proved by calling him as a witness, unless the statement becomes admissible u/s 32 or 33 Evidence Act and that such an en-horsemint is not admissible even as a statement made by a public officer in the discharge of his duty.
Learned Counsel for the Respondents did not contest before me the finding of the lower court that the Plaintiffs have failed to establish that a notice determining the tenancy had been served on the Appellant.
As no notice of any kind terminating the tenancy has been proved to have been given by the Plaintiffs to the Defendant, the Plaintiffs cannot get a decree for possession.
6. For these reasons the decision of the learned District Judge is set aside and the decision of the learned Civil Judge First Class is restored. In the circumstances of the case I would leave the parties to bear their own costs here and in the court of District Judge Gwalior.
