PETITIONER:
BHAGABANDAS AGARWALLA
Vs.
RESPONDENT:
BHAGWANDAS KANU & ORS.
DATE OF JUDGMENT25/02/1977
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 1120 1977 SCR (3) 75
1977 SCC (2) 646
ACT
Transfer of Property Act, S. 106, Notice to quit,
whether should be construed in a hyper-critical manner.
HEADNOTE
The appellant filed a suit for evicting his tenant
Bhagwandas Kanu etc. after giving them a notice to quit.
The Trial Court dismissed the suit but on appeal, the First
Appellate Court passed a decree for eviction against the
respondents.In second appeal before the High Court, the
respondents assailed the validity of the notice to quit, on
the ground that it did not conform with the requirements of
s. 106 of the Transfer of Property Act. The High Court
allowed the appeal holding that the notice to quit did not
clearly terminate the tenancy on the expiration of the,
month of the tenancy, and was invalid.
Allowing the appeal by special leave, the Court,
HELD: A notice to quit must be construed ut res
magis valeat quam pereat. It must not be read in a hyper-
critical manner, nor must its interpretation be affected by
pedagogic pendantism or over refined subtlety, but it should
be construed in a common sense, way. The notice to qui re-
quired the respondents to vacate "within the month of Octo-
ber 1962", otherwise they would be treated as trespassers
from 1st November, 1962. This makes 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. [76 D, F, 77-E]
Sidebotham v. Holland (1895) 1 Q.B. 378; Harihar Banerji v.
Ramsashi Roy 45 I.A. 222, applied.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2080 of 1968.
Appeal by Special Leave from the Judgment and Order dated
11-4-68 of the Assam and Nagaland High Court in Second
Appeal No. 98/65.
G.L. Sanghi and K.J. John for the Appellant.
S.K. Nandy and G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J., This appeal by special leave raises a short
question relating to the validity of a notice to quit given
by the appellant terminating the tenancy of the respondents.
The appellant, as landlord, filed a suit for eviction
against the respondents as tenants, after giving a notice to
quit dated 25th September, 1962. The Trial Court dismissed
the suit but on appeal, the First Appellate Court reversed
the judgment of the Trial Court and passed a decree of evic-
tion against the respondents. The respondents preferred a
second appeal to the High Court and the only question debat-
ed before the High Court was in regard to the validity of
the notice to quit. There were two grounds on which the
notice to quit was assailed as invalid. The first is imma-
terial since the decision of the High Court negativing it
has not been challenged before us on behalf of the respond-
ents. The second was
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that the notice to quit was invalid as it was not in con-
formity with the requirements of section 106 of the Transfer
of Property Act. That section says that in the absence of a
contract or local law or usage to the contrary, a lease from
month to month shall be terminable, "on the part of either
lessor or lessee, by fifteen days’ notice expiring with the
end of a month of the tenancy". The argument of the re-
spondents before the High Court was that the notice to quit
did not expire with the end of the month of the tenancy and
was hence invalid. This argument found favour with the High
Court and it held that the notice to quit was not clear and
unambiguous and was "open to doubt as to the date of deter-
mination of the tenancy" and did not terminate the tenancy
on the expiration of the month of the tenancy and was,
therefore, invalid and in this view it dismissed the suit of
the appellant. The appellant thereupon preferred the
present appeal with special leave obtained from this Court.
The only question which arises for determination in this
appeal is whether the notice to quit given by the appellant
to the respondents was invalid as not being in conformity
with the requirements of section 106 of ’the Transfer of
Property Act. The notice to quit, so far as material, was
in the following terms:
"You are hereby informed by this notice
that you will vacate the said house for our
possession within the month of October 1962
otherwise you will be treated as trespassers
from 1st November in respect of the said
house."
The tenancy was admittedly a monthly tenancy and hence the
notice to quit could not be said to be valid under section
106 of the Transfer of Property Act unless it expired with
the end. of the month of the tenancy. The view taken by the
High Court was that since by the notice to quit the appel-
lant called upon the respondents to. vacate the premises
"within the month of October 1962" and not on the expiration
of that month, the notice to quit was not in accordance with
law and did not operate to determine the tenancy of the
respondents. The question is whether this view taken by the
High Court can be sustained.
Now, it is settled law that a notice to quit must be
construed not with a desire to find faults in it, which
would render it defective, but it must be construed ut res
magis valeat quam pereat. "The validity of a notice to
quit", as pointed out by Lord Justice Lindley, L.J. in
Sidebotham v. Holland(1), "ought not to turn on the split-
ting of a straw". It must not be read in a hyper-critical
manner, nor must its interpretation be affected by pedagogic
pendantism or overrefined subtlety, but it must be construed
in a commonsense way. See Harihar Banerji v. Ramsashi
Roy(2). The notice to quit in the present case must be
judged for its validity in the light of this well recognised
principle of interpretation.
It is indisputable that under section 106 of the Trans-
fer of Property Act the notice to quit must expire with the
end of the month of the tenancy or in other words, it must
terminate the tenancy with effect
(1) [1895] 1 Q.B. 378. (2) 45 I.A. 222.
77
from the expiration of the month of the tenancy. If it
terminates the tenancy with effect from an earlier date, it
would be clearly invalid. Now,’ here the notice to quit
required the respondents to vacate the premises "within the
month of October 1962" and intimated to them that otherwise
they would be "treated as trespassers from 1 st November" in
respect of the premises. The question is: what is the
meaning and effect of the words "within the month of October
1962" in the context in which they are used in the notice to
quit ? Do these words mean that the tenancy of the respond-
ents was sought to be terminated at a date earlier than the
expiration of the month of October 1962 and they were re-
quired to vacate the premises before such expiration ? We
do not think so. When the notice to quit required the
respondents to vacate "within the month of October 1962";
what it meant was that the respondents could vacate at any
time within the month of October 1962 but not later than the
expiration of that month. The last moment up to which the
respondents could, according to the notice to quit, lawfully
continue to remain in possession of the premises was the
mid-night of 31st October, 1962. We fail to see any differ-
ence between a notice asking a tenant to vacate "within the
month of October 1962" and a notice requiring a tenant to
vacate latest by the mid-night of 3 l st October, 1962,
because in both cases, the tenant would be entitled to
occupy the premises up to the expiration of 31st October,
1962 but not beyond it. This position would seem to follow
logically and incontestably, as a matter of plain natural
construction, from the use of the words "within the month of
October 1962" without any thing more, but here it is placed
beyond doubt or controversy by the notice to quit proceeding
to add that otherwise the respondents would be treated as
trespassers from 1st November, 1962. This makes the inten-
tion of the authors of the notice clear that they are termi-
nating 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. If the
respondents do not vacate the premises within the month of
October 1962, they would be treated as trespassers from 1st
November, 1962 and not from any earlier date, clearly imply-
ing that they would lawfully continue as tenants up to the
expiration of the month of October 1962. 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 of the Transfer of Property Act. It was in the
circumstances a valid notice which effectively determined
the tenancy of the respondents with effect from the mid-
night of 31st October, 1962.
We accordingly allow the appeal, set aside the order of
the High Court and restore the decree for eviction passed
against the respondents. Since the respondents have been in
possession of the premises for a long time, it is but fair
that they should have some reasonable time to vacate the
premises. Hence we direct that the decree for eviction
shall not be executable against the respondents up to 31st
October, 1977 on condition that the respondents continue to
pay to the appellant regularly from month to month an amount
equivalent to the monthly rent as and by way of compensation
for use and occupation of the permises. There will be no
order as to costs throughout.
M.R. Appeal allowed.
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