http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: BHAGABANDAS AGARWALLA

       Vs.

RESPONDENT: BHAGWANDAS KANU & ORS.

DATE OF JUDGMENT25/02/1977

BENCH: BHAGWATI, P.N. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

       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         76         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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

       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.         78