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PETITIONER: MANGILAL

       Vs.

RESPONDENT: SUGANCHAND RATHI

DATE OF JUDGMENT: 24/10/1963

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  101            1964 SCR  (5) 239  CITATOR INFO :  F          1967 SC1419  (5)  RF         1972 SC 819  (11)  RF         1974 SC 818  (15,26)  D          1976 SC 588  (8)  D          1976 SC 869  (6,7)  D          1978 SC1518  (8,9,14,17)  O          1979 SC1745  (13,17)  D          1988 SC1470  (10)  R          1992 SC  96  (14)

ACT: Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955), s. 4(a)-Notice-Whether tenant should in arrears on the  date of suit-Acceptance of arrears-If right under notice  waived- Transfer of Property Act, 1882 (4 of 1882), s. 106.

HEADNOTE: The defendant was a tenant of the plaintiffs.  The defendant was  in  arrears of rent for one year to the extent  of  Rs. 1,020.  On April 11, 1959 the plaintiffs served a notice  on the  defendant  requiring  him to remit to  them  Rs.  1,020 within one month from the date of service of notice, failing which  suit for ejectment would be filed.  This  notice  was received  by the defendant on April 16, 1959.  On  June  25, 1959 the defendant sent a reply to the notice enclosing with it  a  cheque for Rs. 1,320.  This amount consisted  of  the rental arrears as well as the rent due right up to June  30, 1959.  The plaintiffs accepted the cheque and cashed it  and gave a fresh notice on July 9, 1959 requiring the  defendant to vacate the premises by the end of the month of July.  The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the  ground that the latter was in arrears of rent  for  one year  and had failed to pay the arrears within one month  of the  service  of the notice dated April 11, 1959  upon  him. From  the undisputed facts it was clear that  the  defendant was  in  fact in arrears of rent and had failed  to  pay  it within the time prescribed by cl. (a) of s. 4 of the  Madhya Pradesh Accommodation Control Act, 1953.

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Held:(i)  Though the notice dated April 11, 1959  could be  construed  to be composite notice under s. 4(a)  of  the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective 240 under s. 106 of the Transfer of Property Act because it  was not  a  notice of 15 clear days.  In the present  case,  the defendant had only 14 clear days’ notice. Subadini v. Durga Charan Lal, I.L.R. 28 Cal. 118 and  Gobind Chandra  Saha v. Dwarka Nath Patita, A.I.R. 1915  Cal.  313, approved. Harihar Banerji v. Ramsashi Roy, L.R. 45 I.A. 222, dis- tinguished. (ii)The suit was actually based upon the notice dated  July 9,  1959 which gave more than 15 days’ clear notice  to  the defendant  to vacate the premises.  This notice was a  valid notice under s. 106 of the Transfer of Property Act. (iii)The  contention that a suit under cl. (a) of s.  4 of the Act is not maintainable unless a tenant is in arrears on  the  date  of the suit, cannot be  sustained.   If  this contention  had  to  be  accepted  it  would  be   virtually rewriting  the  section by saying "that the  tenant  was  in arrears  of rent at the date of suit" in place of  that  the "tenant has failed to make payment etc." It is certainly not open  to  a court to usurp the functions of  a  legislature. Nor   again,  is  there  scope  for  placing  an   unnatural interpretation  on the language used by the legislature  and impute to it an intention which cannot be inferred from  the language  used  by it by basing ourselves on  ideas  derived from  other laws intended to give protection to the  tenants from eviction by landlords. (iv)The ground set out in cl. (a) of s. 4 need not be shown by  the landlord to exist at the date of institution of  the suit.   All that is necessary for him to establish  is  that the  tenant  was in fact in arrears, that he was  given  one month’s  notice to pay up the arrears and that in  spite  of this  he  failed to pay these arrears within  one  month  of service of notice on him. (v)The effect of cl. (a) of s. 4 is merely to remove the bar created  by the opening words of s. 4 on the right  which  a landlord has under s. 106 of the Transfer of Property Act to terminate  a  tenancy  of a tenant from month  to  month  by giving  a notice terminating his tenancy.  The character  of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by s. 106 will be exercisable only if  one of  the grounds set out in s. 4 of the Accommodation Act  is shown to exist. (vi)By cashing the cheque for Rs. 1,320 the plaintiffs  did not waive all rights which accrued to them under the  notice dated April 11, 1959.  No right under s. 106 of the Transfer of  Property  Act  had  accrued  to  them  because  of   the ineffectiveness  of the notice in so far as the  termination of  tenancy  was concerned and, therefore,  no  question  of waiver  with respect to that part of the notice arises.   So far as the right accruing under s. 4(a) of the Accommodation Act is concerned, the defendant having been under  liability to  pay rent even after the giving of notice the  acceptance of the rent by the plaintiffs would not by itself of operate as waiver. 241

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 307 of 1963. Appeal by special leave from the judgment and decree-  dated September  27,  1962, of the Madhya Pradesh  High  Court  in Second Appeal No. 158 of 1962. S.V.  Gupte,  Additional Solicitor-General  of  India,  O.C. Mathur,   Revindra  Narain  and  J.B.  Dadachanji  for   the appellant. M.C.  Setalvad,  Rameshwar  Nath and S.N.  Andley,  for  the respondents. October  24, 1963.  The Judgment of the Court was  delivered by MUDHOLKAR J.-This is an appeal by special leave against  the judgment of the High Court of Madhya Pradesh dismissing  the defendant’s  appeal in which he had challenged the  decision of  the  courts below ordering his  ejectment  from  certain premises  which are in his occupation as the tenant  of  the plaintiffs. It  is common ground that the defendant was a tenant of  the plaintiffs  and the rent of the premises in  his  occupation was  Rs. 110 p.m. It is not disputed that the defendant  was in  arrears of rent from April 1, 1958 to March 31, 1959  to the  extent of Rs. 1,020.  On April II, 1959 the  plaintiffs served a notice on the defendant bringing to his notice  the fact  of  his  being in arrears of rent for  12  months  and requiring  him to remit to them Rs. 1,020 within  one  month from  the date of service of notice and stating that on  his failure  to  do  so, a suit for  ejectment  would  be  filed against him.  In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon  two grounds: (1)  that  the  premises  were required  by  the  plaintiffs "genuinely for business"; and (2)  that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs  and without having any right to sublet the premises. 242 This notice was received by the defendant on April 16, 1959. On  June 25, 1959 the defendant sent a reply to  the  notice enclosing  with  it  a  cheque for Rs.  1,320.   It  may  be mentioned  that this amount consisted of the rental  arrears as  well  as the rent due right up to June  30,  1959.   The plaintiffs accepted the cheque and cashed it on July 4, 1959 and  gave  a  fresh notice on July  9,  1959  requiring  the defendant to vacate the premises by the end of the month  of July.  In their notice the plaintiffs also stated that  they had cashed the cheque under protest.  The defendant did  not vacate  the  premises and, therefore, the present  suit  for eviction was instituted on August 14, 1959. The  plaintiffs claim for eviction on the grounds  that  the premises were required by them bona fide for the purpose  of their business and that the defendant had illegally let them out  was negatived by the courts below and, therefore,  must be  left out of question.  The only question is whether  the plaintiffs  are  entitled to eject the  defendant  upon  the ground  that the latter was in arrears of rent for one  year and  had failed to pay the arrears within one month  of  the service  of the notice dated April 11, 1959 upon  him.   The tenancy  being  from  month  to month it  was  open  to  the plaintiffs  to  terminate  it  by  giving  15  days’  notice expiring at the end of the month of the tenancy as  provided for  in s. 106 of the Transfer of Property Act,  1882.   The premises  are,  however, situated in Jabalpur in  which  the Madhya  Pradesh  Accommodation Control Act,1955 (No.  23  of 1955)  (herein  referred  as the Accommodation  Act)  is  in force.  Section 4 of the Act provides that no suit shall  be

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filed. in any civil court against a tenant for his  eviction from any accommodation except on one or more of the  grounds set out in that section.  One of the grounds set out in that section is that the tenant has failed to make payment to the landlord  of  any arrears of rent within one  month  of  the service  upon  him of a written notice of  demand  from  the landlord.   It is because of this provision that before  the plaintiffs 243 could  succeed it was necessary for them to  establish  that the  defendant had failed to pay rental arrears  within  one month of the receipt by him of a notice of demand.  From the undisputed facts it is clear that the defendant was in  fact in arrears of rent and had failed to pay it within the  time prescribed  by  cl. (a) of s. 4. According  to  the  learned Additional  Solicitor-General,  however, in spite  of  these circumstances  the  plaintiffs’  suit could  not  have  been decreed because: (1)  the  notice  of  April 11, 1959  was  invalid  for  the purpose  of s. 106 of the Transfer of Property Act  inasmuch as the defendant did not have 15 clear days notice  expiring by the end of the month of tenancy; (2)  that the notice as well as the default were both waived by the plaintiffs by reason of- (a)  acceptance of the cheque for Rs. 1,320, which  included rent up to June 30, 1959; (b)  giving a fresh notice on July 9, 1959 and (c)  filing  of a suit on August 14, 1959 in which  reliance was placed only on the second notice. (3)  that the second notice was not valid with reference  to the Transfer of Property Act and the Accommodation Act; and (4)  that  there  was  no cause of action for  the  suit  on August 14, 1959 under s. 5 of the Accommodation Act  because no rent was in arrears on that date. We  shall deal with the points in the order in which he  has mentioned them. The   learned  Additional   Solicitor-General   contends-and rightly-that the provisions of s. 4 of the Accommodation Act are in addition to those of the Transfer of Property Act and that before a tenant 244 can  be evicted by a landlord he must comply both  with  the provisions  of  s. 106 of the Transfer of Property  Act  and those  of s. 4 of the Accommodation Act.  The  Accommodation Act  does not in any way abrogate Ch. V of the  Transfer  of Property Act which deals with leases of immovable  property. The requirement of s. 106 of the Transfer of Property Act is that  a  lease from month to month can  be  terminated  only after giving fifteen days’ notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by  the tenant to the landlord.  Such a notice is  essential for  bringing  to an end the relationship  of  landlord  and tenant.   Unless the relationship is validly terminated  the landlord does not get the right to obtain possession of  the premises  by  evicting  the  tenant.   Section  106  of  the Transfer   of  Property  Act  does  not  provide   for   the satisfaction of any additional requirements.  But then, s. 4 of  the Accommodation Act steps in and provides that  unless one of the several grounds set out therein is established or exists,  the  landlord cannot evict the  tenant.   Here  the contention  is  that the ground set out by cl. (a)  of  that section  does exist because the defendant was in arrears  of rent  for a period of one year and despite service upon  him of  a notice to pay the amount within one month  of  receipt thereof,  he  has  failed  to  pay  it.  Now,  the   learned

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Additional  Solicitor-General  states  that  the  notice  of April, 1959 may be a good notice for the purposes of s. 4(a) of the Accommodation Act but it is not a good notice for the purposes of Is. 106 of the Transfer of Property Act for  two reasons: in the first place it does not purport to determine the  tenancy and in the second place the notice falls  short of the period of 15 days specified in s. 106 of the Transfer of Property Act.  The High Court has, however, treated  this as a composite notice under s. 4(a) of the Accommodation Act and  s.  106  of the Transfer of Property  Act  and  in  our opinion rightly.  It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears  due up to the end of March, 1959 within one month from the  date of service of the notice, Proceeded to say "failing which 245 suit  for ejectment will be filed".  These recitals  clearly indicate  the  intention of the landlord  to  terminate  the tenancy  of the defendant under the relevant  provisions  of both  the Acts.  Even so, the question would  arise  whether the  notice was ineffective under s. 106 of the Transfer  of Property  Act because it was not a notice of 15 clear  days. It was held by the Calcutta High Court in Subadini v.  Durga Charan Lal(1) that the notice contemplated by s. 106 must be notice of 15 clear days.  In calculating the 15 days’ notice the  day on which the notice is served is excluded and  even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days’  notice. Therefore,  if  the  view taken in  the  aforesaid  case  is correct the period of notice falls short of that provided in s.  1.06  of the Transfer of Property Act by one  day.   The correctness of the aforesaid decision was not questioned  by the  same High Court in Gobinda Chandra Saha v. Dwarka  Nath Patita(2). No decision was brought to our notice in which  a contrary  view  has been expressed.  But  Mr.  Setalvad  who appears  for the plaintiffs, contends that a notice to  quit should  be  liberally  construed.   In  this  connection  he referred us to a decision in Harihar Banerji v. Ramsashi Roy (3) In that case the Judicial Committee of the Privy Council has observed at p. 225:  ................ that notices to quite, though not strictly accurate  or consistent in the statements embodied in  them, may  still  be good and effective in law; that the  test  of their sufficiency is not what they would mean to a  stranger ignorant  of all the facts and, circumstances  touching  the holding to which they purport to refer, but what they  would mean  to tenants presumably conversant with all those  facts and  circumstances;  and,  further,  that  they  are  to  be construed,  not with a desire to find faults in  them  which would  render  them defective, but to be  construed  at  res magis valeat quam pereat." (1)ILR  28 Cal.118.                        (2)  A.I.R.  1915 Cal. 313, (3)  45 I.A. 222. 246 The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained  to the description of the demised premises  and the  Privy  Council held that the recipient  of  the  notice would  be quite conversant with the actual  description  and could  know  what  the  description  stood  for.   Here  the question  is  entirely  different and that  is  whether  the landlord had given the minimum period contemplated by s. 106 of  the Transfer of Property Act to the tenant within  which to  vacate  the  premises.   This  provision  is   evidently intended  to  confer  a facility on  the  tenant  and  must,

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therefore,  be  so construed as to enable him  to  have  the fullest  benefit  of that facility.  It seems to us  that  a liberal  construction  of a notice which would  deprive  the tenant of the facility of having the benefit of the  minimum period of 15 days within which to vacate is not permissible. We,  therefore,  approve  of the view  taken  in  Subadini’s case(1)  and hold that the notice dated April 11,  1959  was ineffective as it does not fulfil the requirements of s. 106 of the Transfer of Property Act. Mr. Setalvad for the plaintiffs, however, points out that  a notice  complying  with  the  requirements  of  s.  106  was actually given by the plaintiffs to the defendant on July 9, 1959  and no fault could be found with it since it  in  fact gave  more  than 15 days’ clear notice to the  defendant  to vacate  the premises.  He further points out that  the  suit was  actually  based upon this notice  and,  therefore,  was competently  instituted.   We  think the  contention  to  be correct. This brings us to the second and the fourth points raised by the learned Additional Solicitor-General which we will  deal with  together.  His contention is that there were  actually no  arrears on the date of suit and that unless a tenant  is in  arrears  on  the date of suit he is  not  liable  to  be evicted  because  of  the  provisions  of  s.  4(a)  of  the Accommodation  Act.  The opening words of s. 4, cl. (a)  are as follows: (1)  I.L.R. 28 Cal. 118. 247 "No suit shall be filed in any civil court against a  tenant for  his  eviction from any accommodation except on  one  or more of the following grounds:- (a)  that  the  tenant  has failed to make  payment  to  the landlord  of  any arrears of rent within one  month  of  the service  upon  him of a written notice of  demand  from  the landlord;" This  provision clearly speaks of a tenant having failed  to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause.  It does  not mean  that  the  ground on which eviction  is  claimed  must subsist  till the date of suit.  It is well to bear in  mind that  this Provision is quite different from  the  analogous provisions of the Bombay Rent, Hotel and Lodging House Rates (Control)  Act,  1947, or the West Bengal  Premises  Tenancy Act, 1956.  The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to  pay the arrears even after the institution of the  suit. Indeed,  in  order to bring the Madhya Pradesh law  in  line with  these Acts the Accommodation Act has been  substituted by  the  M.P.  Accommodation Control Act, 1961  (Act  41  of 1961).  Clause (a) of s. 12 of that Act entitles a  landlord to  bring  a suit for the eviction of the tenant  where  the latter  has  neither  paid nor tendered  the  whole  of  the arrears  of  rent legally recoverable from  him  within  two months  of  the  date on which a notice of  demand  for  the arrears  of rent has been served on him by the  landlord  in the  prescribed  manner.  Sub-section (3)  of  that  section provides that no order for the eviction of a tenant could be made  on the grounds specified in cl. (a) of Sub-s.  (1)  if the  tenant makes payment of deposit as required by  s.  13. Sub-section (1) of s. 25 gives a right to the tenant to make ail  application  within  certain time  for  depositing  the rental arrears in court.The scheme of the new Act is thus  a substantial  departure in this respect from that of s. 4  of the  1955  Act.  The learned  Additional  Solicitor-General, however,

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248 says that if we look to some of the other grounds  specified in  s. 4 and to the provisions of ss. 16 and 17 of  the  new Act  it would appear that when a suit is instituted  at  the instance of the landlord for the eviction of the tenant  the latter must be in arrears on the date of the institution  of the suit.  In this connection he refers us to the provisions of cls. (g),(h), (j) and (k)  of s.4 and contends  that  the grounds referred to in those  clauses    must    necessarily continue  to exist till  the  dates the institution  of  the suit and  that- cl. (a)  should    be  read as containing  a similar   condition.     Clauses   (g)  and  (h)  deal  with cases  where the landlord, broadly speaking.,  requires  the accommodation for his own residence or for his own business. Clause  (j)  deals  with a case where  a  tenant  had  given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation  or has taken any other step as a result of which his  interests would  seriously  suffer if he is not put in  possession  of that  accommodation.  Clause (k ) deals  with  accommodation which was let to the tenant for use as a residence by reason of  his being in the service of the landlord and the  tenant has ceased, whether before or after the commencement of  the Act.  to be in such service.  It is not necessary for us  to decide in this case whether the grounds referred to in these clauses  must necessarily continue to exist on the  date  of suit.  It is sufficient to say that the language of cl.  (a) must  be  given  its natural meaning and that  there  is  no warrant  for modifying that language because  while  dealing with other grounds set out in other clauses, the legislature has  used  different  language.  If we were  to  uphold  the contention  of the learned Additional  Solicitor-General  we would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in  place of that the "tenant has failed to, make payment etc." It  is certainly  not open to a court to usurp the functions  of  a legislature.   Nor  again,  is there scope  for  placing  an unnatural  interpretation  on  the  language  used  by   the legislature  and impute to it an intention which  cannot  be inferred from the language used by 249 it  by  basing ourselves on ideas derived  from  other  laws intended to give protection to the tenants from eviction  by landlords.  As far as ss. 16 and 17 are concerned, they  are of no assistance to the defendant.  It is not necessary  for us  to reproduce their provisions; but it is  sufficient  to say that they were intended to give a limited  retrospective operation  to  the provisions of the new s. 4.  We  have  no doubt, therefore, that the ground set out in cl. (a) of s. 4 need  not be shown by the landlord to exist at the  date  of institution  of the suit.  All that is necessary for him  to establish  is that the tenant was in fact in. arrears,  that he  was given one month’s notice to pay up the  arrears  and that in spite of this he failed to pay those arrears  within one month of service of notice on him. It  is  said that such an interpretation will lead  to  this result that the landlord who had served notice upon a tenant under  cl.  (a)  of s. 4 and in compliance  with  which  the tenant had failed to pay the arrears within one month of the service   of  notice,  may  continue  the  tenancy  of   the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy.  The intention  to give such a right to the landlord cannot reasonably, accord- ing   to  the  learned  Additional   Solicitor-General,   be attributed  to  the  legislature.   Theoretically  that   is

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possible; but the argument based upon it is farfetched.  The landlord who wants to evict a tenant and, therefore,  avails himself of the ground furnished by cl. (a) of s. 4 would not wait for years to file a suit against his defaulting tenant. It seems to us that in furnishing the ground to the landlord the  legislature intended to give only a limited  protection to  the  tenant  or  to put  it  slightly  differently,  the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment  of rent.   That  is  all.   Indeed,  while  it  is  open  to  a legislature  to  give  wide protection  to  ever  defaulting tenants,  it does not follow from it that whenever it  gives protection  it  must  be  deemed  to  have  given  him   the protection of the widest amplitude. 250 Then  it is said that such an interpretation will deprive  a tenant,  for whose benefit s. 4 was enacted, of the  benefit of s. 114 of the Transfer of Property Act which provides for relief against forfeiture for non-payment of rent.  What  is forfeiture  is  set  out in s. 111 (g) of  the  Transfer  of Property Act, which runs thus: "By  forfeiture;  that  is to say, (1) in  case  the  lessee breaks  an express condition which provides that, on  breach thereof, the lessor may re-enter; or (2) in case the  lessee renounces  his character as such by setting up a title in  a third  person  or by claiming title in himself; or  (3)  the lessee  is adjudicated an insolvent and the  lease  provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice  in  writing  to  the  lessee  of  his  intention  to determine the lease;" The  effect of cl. (a) of s. 4 is merely to remove  the  bar created  by the opening words of s. 4 on the right  which  a landlord has under s. 106 of the Transfer of Property Act to terminate  a  tenancy  of a tenant from month  to  month  by giving  a  notice  terminating his  tenancy.   It  does  not convert  a periodic tenancy into one of fixed or  indefinite duration  nor  insert therein a clause of  re-entry  on  the ground of nonpayment of rent.  The character of the  tenancy as  one  from month to month remains; but to it is  added  a condition that the unfettered right to terminate the tenancy conferred  by s. 106 will be exercisable only if one of  the grounds set out in s. 4 of the Accommodation Act is shown to exist. The  next question is whether, as contended by  the  learned Additional  Solicitor-General,  the  default  made  by   the defendant in failing to pay the arrears within one month  of the receipt of the notice dated April 11, 1959, can be  said to have been waived by the plaintiffs.  It is no doubt  true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs  received  not merely the arrears of rent  up  to March, 1959 but also rent upto June 30, 1959.  There is no 251 substance  in  the plea made on their behalf that  they  had received the amount under protest.  In the first place  this is  not  a case to which illustration (a) to s. 113  of  the Transfer of Property Act which says that acceptance of  rent falling due after the expiry of a notice to quit amounts  to waiver   of  the  notice  applies.   Then  again  when   the plaintiffs  cashed the cheque they had not filed a  suit  on the  basis of the notice of April 11, 1959.   Merely  saying that they accepted the money under protest is, therefore, of no avail to them.  Even so, it is difficult to infer, merely from  the acceptance of the payment, a, waiver of the  right which  had  accrued  to them under s. 4(a)  of  the  Act  in

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consequence  of the default made by the defendant in  paying arrears of rent.  The reason is quite simple.  The  tenancy, as  was indeed argued by the learned  Additional  Solicitor- General,  hah not be-en validly terminated by the notice  of April  11 , 1959 and therefore the relationship of  landlord and  tenant  continued.  Consequently  the  plaintiffs  were within  their  right  in accepting the rent  and  cannot  be fastened  with  the  intention to  waive  the  default  just because of this action since the defendant was, by virtue of the  Accomodation  Act entitled to remain in  possession  as tenant  and  liable  to pay rent.   The  learned  Additional Solicitor-General,  however, faintly contended that  if  the notice  of April 11, 1959 could also be construed  as  being intended  to  be  notice under s. 106  of  the  Transfer  of Property  Act  then  even  though  it  was  ineffective  the acceptance  of  rent  by  the plaintiffs  on  July  4,  1959 amounted to a waiver of the right accruing from the  notice. As  we  have  already  indicated, so  far  as  the  suit  is concerned, it is based upon the notice of July 9, 1959, that is  to say, the eviction of the defendant is claimed on  the basis of a notice requiring him to quit by the end of  July, 1959.  The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at  all and the receipt by them of rent prior to this date does  not by  itself  terminate the right accruing to them  under  the notice dated July 9, 1959.  It may be that if the notice  of April 11 , 1959 is construed 252 as a composite notice, that is, one contemplated by cl.  (a) of s. 4 as also one under s. 106 of the Transfer of Property Act,  acceptance  of  the  rent  could,  along  with   other circumstances,  have led to the inference of waiver  of  the right  flowing from the notice under s. 106 of the  Transfer of  Property  Act.  But it is difficult to see  how  such  a construction  of  the notice can at all support  a  plea  of waiver  of  the  right accruing from cl. (a) of  s.  4..  As already pointed out, the notice of April 11, 1959 in so  far as  it  purported  to be under s. 106  of  the  Transfer  of Property   Act   was   ineffective   and,   therefore,   the relationship  of landlord and tenant continued  between  the plaintiffs  and  the defendant.  Accepting rent  under  such circumstances   from  the  defendant  cannot   justify   the inference  of waiver of quite a different right and that  is to  take advantage of the statutory right under s. 4 of  the Accommodation Act accruing by reason of the default made  in the payment of rental arrears.  Indeed, the notice of  April 11,  1959 as it stands, could not by itself  have  furnished the  plaintiffs  with the right to institute a  suit.   Till they  acquired  that right, not only were they  entitled  to accept  the rent which accrued due from month to  month  but the defendant was himself liable to pay the rent whenever it fell  due till the relationship of landlord and  tenant  was put  an  end to.  Therefore, from the sole  circumstance  of acceptance of rent after April 11, 1959 waiver cannot at all be  inferred.   We  are, therefore,  unable  to  accept  the argument of the learned Additional Solicitor-General that by cashing  the cheque for Rs. 1,320 the plaintiffs waived  all rights  which accrued to them under the notice  dated  April 11, 1959.  As we have already said, no right under s. 106 of the Transfer of Property Act had accrued to them because  of the  ineffectiveness  of  the  notice  in  so  far  as   the termination  of  tenancy was concerned  and,  therefore,  no question  of waiver with respect to that part of the  notice arises.  So far as the right accruing under s. 4 (a) of  the Accommodation  Act is concerned, the defendant  having  been

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under liability to pay rent even after the giving of  notice the acceptance of the 253 rent by the plaintiffs would not by itself operate as waiver. As  regards  the last point, we have in fact dealt  with  it already.   What was contended was that the notice  of  April 11,  1959 was not a valid notice with reference to both  the laws,  that  is,  the  Transfer  of  Property  Act  and  the Accommodation  Act.   We have pointed out  that  though  the notice  could  be construed to be composite  notice  it  was ineffective  in so far as it purports to be under s. 106  of the Transfer of Property Act.  It was not suggested that  in so far as it was a notice under the Accommodation Act it was invalid.  There is, therefore, nothing more to be said about it. For  the foregoing reasons we uphold the decree of the  High Court and dismiss the appeal with costs. Appeal dismissed.