JUDGMENT
V.S. Sirpurkar, J.
1. This Second Appeal is filed by the original defendant-tenant against whom First Appellant Court has passed a decree for eviction. The trial Court had dismissed the suit. However, the Appellant Court has reversed the judgment of the trial Court and decreed the suit. The following factual matrix shall highlight the controversy in this appeal.
2. Plaintiff’s case in short is that she was the owner of 5 shops situated at Mouza Gondpipari and out of them, one shop, being the subject matter of the suit, was let out to the defendant on a monthly rent of Rs. 150/- for a period from 15-1-1977 to 15-11-1977 and this transaction was evidenced by a lease-deed dated 20-1-1977. It was contended by the plaintiff that even after the lease came to an end by a flux of time on 15-11-1977, the defendant continued to be the monthly tenant paying Rs. 150/- per month as the rent. It is further contended that the tenancy month began from 15th of each month and treating the tenancy month as such, plaintiff had passed rent receipts to the defendant, on the counter foils of which, defendant had put his signature. The tenancy of the defendant was terminated by notice dated 16-2-81 with effect from the mid-night of 14-3-1981. Inspite of the notice, since the defendant failed to vacate the premises, suit was filed. In para 5 of the plaint, which pertains to the cause of action clause, it is specifically stated that the cause of action arose on 15th of each month, as also on account of the illegal continence of the defendant on the suit premises from 15-3-1981 onwards. A decree for possession of the suit premises as also for defaulted rent amounting to Rs. 4050/- was sought for.
3. The defendant in his written statement denied the allegations generally. The receipt of the notice as well as its legality was disputed. It was stated that the tenancy month was from 16th of every month till the 15th of next and the rent was payable only as and when demanded. During the pendency of the suit, the written statement was further amended and it was claimed that the agreement dated 20-1-1977 was a sham and colourable document and it was actually never acted upon. Alternatively, it was contended that if the plaintiff was entitled to claim on the basis of alleged agreement dated 20-1-1977, as per section 110 of Transfer of Property Act, the day from which the tenancy was to commence had to be excluded for the purpose of computing of the tenancy period and as such tenancy month would be from 16th and not from 15th of every month after the agreement came to an end.
4. The plaintiff also amended his plaint consequentially and repudiated the defence raised by the defendant on the basis of section 110 of Transfer of Property Act. The plaintiff in support of her plea filed original lease-deed as also the counter-foils of the receipts, which she had passed to the defendant evidencing the payment of rent. These counter-foils bore the signature of the defendant. The notice as also the postal receipt and the acknowledgment were also filed. The postal acknowledgment apparently bears the signature in English. The plaintiff examined her husband, who had power of attorney and one another witness, who was the scribe of the agreement.
5. The defendant entered the witness-box himself and repudiated the claim of the plaintiff. The defendant contended that he had never received the notice, by which his tenancy was allegedly terminated. He accepted his signatures on the said agreement, Exh. 32 and also accepted his signatures on the counter-foils of the receipts, which were given to him. He claimed that he did not know English and the signature on the postal acknowledgment was not his signature.
6. On the basis of this evidence, the trial Court dismissed the suit. The trial Court held that the defendant was the tenant of the plaintiff on the basis of agreement of lease and had continued to hold over. The trial Court also held that the notice terminating tenancy of the defendant by the plaintiff was not served on the defendant. The trial Court further held that the defendant’s tenancy was not legally terminated by notice in as much as the tenancy month commenced from 16th of every month and ended on 15th of the said month and as such notice terminating the tenancy on the midnight of 14th March, was illegal. He, therefore, only passed a money decree for Rs. 5100/- with proportionate costs but rejected the claim of the plaintiff for possession.
7. The landlord appealed against this decision and the Appellate Court has reversed the judgment of the trial Court by holding that the defendant’s monthly tenancy commenced from 15th of each English calendar month and not from 16th of each English calendar month as held by the trial Court. It also came to the conclusion that the notice was duly served and that the suit was liable to be decreed in full. It is this Appellate Court’s judgment and decree, which is the subject matter of this second appeal.
8. Shri Shelat, learned Counsel for the appellant-tenant has contended that the finding of the Appellate Court that the tenancy commenced on 15th of each English calendar month is wholly incorrect and the Appellate Court has not taken into consideration the language of section 110 of Transfer of Property Act. His further contention is that since the lease-deed was for a particular period and the commencement of the lease was shown in the said lease-deed to be from a particular day, therefore, in computation of the period that day will have to be excluded and it has, therefore, to be held that the lease expired on 15th October, 1977 and if the tenant thereafter held over, the tenancy month will have to be necessarily reckoned to be starting from 16th. Shri Shelat also submits that the notice terminating the tenancy of the defendant was never received by the defendant and the Appellate Court has erred in reversing the finding of the trial Court. According to him, admittedly in the notice, the tenancy was terminated with effect from mid-night of 14th and, therefore, since the termination of tenancy was not co-insiding with the end of tenancy month, the notice was illegal. In support of his contention, Shri Shelat relied on the ruling reported in Dattopant v. Vithalrao, . Shri Parchure, learned Counsel for defendant landlord supported the judgment of the Appellate Court. According to him, it was correctly held by the Appellate Court that the tenancy month commenced from 15th and ended on 14th of that calendar month. He also pointed out that the finding of the trial Court that the notice was not served upon the defendant was incorrect finding and, therefore, rightly set aside by the Appellate Court. His further contention is that the notice under section 106 of the Transfer of Property Act should not be strictly construed and a hyper technical view should not be taken as regards that notice.
9. I shall first deal with the contention of the learned Counsel for the appellant that the notice has not been served properly on the defendant. This is a finding of fact. The Appellant Court has held on the basis of evidence that it was an admitted position that the defendant had a grown up son. It, therefore inferred that the signature on the postal receipt might be that of the grown up son and as such it is a good service. Shri Shelat pointed out that such inference was not possible as there was no evidence on record to show that the signature belonged to that of his son. Shri Shelat candidly admits that if notice is accepted by any of the family members of the defendant, it would be a good service. However, he is at pains to contend that it is nowhere proved that any notice was so received by any of the family members of the defendant.
10. The notice is sent by a registered post and there appears to be a signature on the postal receipt, which is in English. The defendant in his evidence has stated that he does not know English and he never puts his signature in English. Significantly enough, beyond that defendant has not said anything. The defendant has chosen to remain silent on the questions as to whether the said signature was that of any of the family members or not. Shri Shelat’s criticism on the finding of the Appellate Court is that the said finding is based on imagination. The criticism is some what justified. The Appellate Court should not have straight away jumped to the conclusion that the signature was that of the son merely because defendant admitted in his cross-examination that he has an eldest son. That by itself could not go to prove that the signature was that of his eldest son. However, that would not be an end of the matter. It would be seen that the postal receipt Exh. 29 goes to prove that the plaintiff had sent notice by registered past, while Exh. 30 is postal acknowledgment, which has been returned by the postal authority to him. The said postal acknowledgment would undoubtedly raise a rebuttable presumption in favour of the service of notice either on the defendant or on such person, who had authority to accept any such correspondence on his behalf. This law is settled by a reported decision in , Sharad v. Vishnu. It is undoubtedly true that such presumption is not conclusive and is rebuttable. However, the fact remains further that the defendant has not made any effort to rebut this presumption. Beyond denying the signature on Exh. 30, defendant has not chosen to say even one word further. The defendant could have stated straight away that none was authorised on his behalf to receive any such correspondence. In the cross-examination, defendant has admitted he has an eldest son and the son attends the shop where the notice is sent. The defendant could have examined his eldest son, who is claimed to be sitting in the shop. Be that as it may, the fact remains that the defendant has not rebutted the presumption by leading any independent evidence. Since the plaintiff has proved that he had sent notice by registered post by-filing postal receipt Exh. 29 and since plaintiff also received back postal acknowledgment, which is proved as Exh. 30, the plaintiff had discharged initial burden to prove the service of notice as also a presumption regarding service. If the defendant did not lead evidence to contrary, it would have to be held that the notice was duly served. In that view of the matter, the contention of Shri Shelat that the notice was not proved to have been served is incorrect and is rejected.
11. The next contention of Shri Shelat is regarding the correctness and validity of notice. His contention is that as per section 110 of Transfer of Property Act where the lease is for a specified period and it is expressed as commencing from a particular day, in computing that time such day shall be excluded. He pointed out that in his case the lease-deed is clearly for limited period and is shown to be commencing from 15-1-77 to 15-11-77 and, therefore, if the tenant continued after the said period of 11 months, then the tenancy month will be reckoned to be beginning from 16th and as such firstly by the language of Exh. 32 and secondly by the operation of section 110, the first day i.e. 15th has to be excluded. In support of his contention, he relied on the reported Supreme Court decision cited supra. Shri Shelat more particularly relied on the observations and the facts as appearing in para 5 of that decision.
12. The contentions of Shri Shelat regarding the applicability of section 110 as also his reliance on the Supreme Court Case are not correct. In Dattopant’s case, the suit premises were taken for a period of one year on the basis of a written document dated 15-6-1945 and the tenancy was shown to have commenced from 9-4-1944. The tenant after the lapse of one year continued to hold over the tenancy and started making payment of rent on the monthly basis and the landlord also accepted such monthly rent. A notice purporting to terminate the tenancy with effect from 8-12-1968 was issued to the defendant treating the tenancy month as commencing from 9th day of that month and ending on 8th day of following month. A contention was raised by the landlord that notice did not expire with the end of the month of tenancy, as the end of tenancy month would be on 9th day and not on 8th day. The Supreme Court upheld this contention on the ground that under the original deed, lease was for a period of one year. The tenancy was shown to have commenced from 9-4-1945 and therefore, under section 110 in computing the period of one year, the date of commencement i.e. 9th day of April, 1945 had to be excluded. The Supreme Court, therefore, held that one year’s tenancy ended on 9th day of April, 1946. It further held that by holding over, the tenancy was from month to month starting from 10th April, 1946 and ending on 9th day of following month. Additionally, the Supreme Court relied upon the rent receipt Exhs. D-1 and D-2, which receipts were in conformity with the original lease-deed Exh. P-12. The Supreme Court also relied upon an order of the Controller, who had fixed the rent with effect from 10th of the month, thus suggesting that the tenancy month commences from 10th day of the month and ends on 9th day of following month. Now the facts of that case are entirely different. There the lease was for a specific period of one year. It did not show specifically as to the date on which lease would end or terminate. In the present case, however the lease is not for a specific period and there is no question of computation of specified period of lease. In the Supreme Court Case, the lease was for “one year” while in the present case, period is stated to be from 15-1-1977 to 15-11-1977. Thus the day when the lease is to be terminated is specified in the present lease-deed, which was not a case in Supreme Court Case, where only a period of one year was mentioned to be the period of lease. Thus while in the Supreme Court Case, there was a question of computation of that period, there is no such question in the present case. It is well settled that section 110 would apply only where there is a question of computation of period of lease. Indeed; such a question cannot arise in a case of a lease-deed, where the termination of lease is indicated by a particular date. The language of section 110 would itself bear this position. Since the lease is shown to be terminating on a particular day, in Exh. 32, there would be no question of computing the day on which the lease would be ending. Now though Exh. 32, covers the period of 11 months, the words “11 months” are specifically absent in the agreement. Only two dates are stated covering the period of lease those two dates being 15-1-1977 to 15-11-1977. There is therefore, no question of computing the period of 11 months and, therefore, there is no question of excluding the first day under section 110 of Transfer of Property Act.
13. Such situation fell for consideration in a reported decision of Hiralal v. Pashupati, . In that case, the agreement of lease was for 3 years and it was provided in the lease-deed that the period of lease would be commencing from January, 1948 upto the last day of December, 1950. A contention was raised relying upon section 110 that the day on which lease was to commence was liable to be excluded and the lease should have been deemed to have lasted during the whole anniversary of the day from which such time commences and, therefore, notice served by the landlord requiring the tenant to vacate by the end of December, 1950 was not a correct notice. Refuting the contention, Calcutta High Court held that where the date of commencement and expiry were both mentioned in the lease-deed, there would be no question of such exclusion of first day and the requirement of computation. According to the Calcutta High Court, second paragraph of section 110 came into operation, when the date of termination was not mentioned in the lease. Where the date of expiry is specified in the agreement itself between the lessor and leasee, there was no question of application of section 110 of Transfer of Property Act. I agree with and follow with respect the Principle in Hiralal’s case cited supra. Therefore, the facts in Dattopant’s case is clearly different and this case is clearly distinguishable on that count.
14. The second reason why the Dattopant’s case is not applicable is, in that case, the receipts which were passed by the landlord to the tenant in respect of rent also showed the tenancy month to be starting from 10th of month and not from 9th of the month as contended by the landlord. There was intrinsic evidence in the shape of Order of Rent Controller which had fixed the rent treating the tenancy month to be from 10th of month. In so far as the present case is concerned, rent receipts passed do not support the case of the tenant but clearly support the landlord. However, I shall consider that evidence later on. Presently it will be sufficient to hold that the ratio of Dattopant’s case is not applicable to the present case. For the reasons stated above, there can be no applicability of section 110 of Transfer of Property Act, to the present case.
15. The Appellate Court has held that section 110 of Transfer of Property Act would not be applicable in this case as the tenancy was month to month. He has held that since the defendant was a tenant holding over under section 116 of Transfer of Property Act, this was a month to month tenancy. Though his inference about the non-applicability of section 110 is right, the reasoning is incorrect. It is right that section 110 does not apply to month to month tenancy. I must, however, hasten to add that the Appellate Court was not correct in making a generous observation that because the defendant had been holding over as monthly tenant, there was no question of applicability of section 110 and excluding the day of commencement of lease, as that is quite contrary to the observations made by the Supreme Court in Dattopant’s case, cited supra. It will have to be remembered that in Dattopant’s case also, the tenant was a tenant holding over and was a monthly tenant. However, the question arose as to computation of lease period because the tenancy was for a specified period of one year, which is not a case here. Here the tenancy ended on a specified day and hence the application of section 110 to the present case would be completely excluded.
16. Mr. Shelat then contended that even if the applicability of section 110 is excluded, considering recitals in Exh. 32, the yearly lease will have to be taken as terminated on 15-11-1977 and if the tenant held over thereafter, then his tenancy month would be taken to be commencing from 16th of each month and ending on 15th of next month and in that case, the notice would be rendered illegal as by the notice his tenancy is terminated with effect from mid-night of 14th March, and not by 15th March. To buttress this contention of Shri Shelat, he also relied on Exh. 26 and 27 – rent receipts and pointed out that the tenancy month is shown to have ended on 15th of the month. It is true that the agreement Exh. 32 suggests that the period of lease is from 15-1-1977 to 15-11-1977. It is also true that thereafter the tenant has continued as a tenant holding over. However, that by itself would not give indication of the tenancy month. Section 116 of the Transfer of Property Act suggests that if the leasee remains in possession even after the determination of lease and if the rent is accepted from the leasee in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month. What is being insisted upon by Shri Shelat is that in this case, since the tenant is a tenant holding over, his tenancy month will have to be reckoned as identical as contemplated in rent agreement and if the lease-deed came to an end on 15-11-1977, then it will have to be held that the tenancy month for holding over commenced on 16th of November, 1977 and, therefore, the tenancy month would come to an end on 15th. He also points out that in rent receipts Exhs. 26 and 27, the tenancy month is shown to have ended on 15th of the month.
17. It will have to be noted here that even if the tenant has continued in his character as a tenant holding over, it will have to be seen independently as to what is the tenancy month understood by the parties. In this respect, I have already pointed out that there are clear cut pleadings by the plaintiff that the tenancy month was always treated to commence from 15th. Even if the lease agreement ended on 15-11-1977, it was open to the parties to treat the tenancy month from 15th and indeed there is instrinsic evidence on record to show that the parties treated the tenancy month to commence from 15th. Now as a matter of fact, the lease-deed Exh. 32 suggests the whole period of lease to be from 15-1-1977 to 15-11-977. It was treated as a monthly tenancy and the said tenancy was said to have commenced from 15th only. Therefore, even from the lease-deed tenancy month commenced from 15th. The question is whether the parties after the lease-deed came to an end by flux of time had treated the tenancy month to begin from 16th and whether tenancy month actually would be from 16th or not. It has already been pointed out that the tenancy month as per lease-deed was always commencing from 15th and even afterwards as per Exhs. 26 and 27, the tenancy month was shown to be commencing from 15th. Not only that, but there are other receipts on record in the shape of Exhs. 35 to 40, wherein tenancy month was shown to be commencing from 15th. Shri Shelat contended that in Exhs. 26 and 27, the tenancy month was shown to have ended on 15th of next month. That is an obvious mistake because the other contents of the receipts clearly suggest that it is a tenancy for one month and the receipt was for the rent of one month. If that is so, the mention of 15th as the last day of the month is an obvious mistake. This mistake seems to have corrected later on in Exhs. 35 to 40, which mention the tenancy month commencing from 15th and ending on 14th of next month. It is significant to note that though the tenant has denied his signature on Exhs. 35 to 40, the finding of the trial Court is that those receipts bore his signature. Therein tenancy month is mentioned as commencing from 15th and ending on 14th. Apart from that there is an application filed by the landlord under Order 41, Rule 27 of C.P.C. by which the money order coupons are filed on record. During the pendency of this appeal before this Court, the tenant was directed to make monthly payment of rent. In each of the money order coupon, the tenant has mentioned tenancy month to be commencing from 15th and ending on 14th. Even if we do not take into consideration, these money order coupons, the earlier receipts are sufficient to hold that the tenant always understood the tenancy month to be commencing from 15th and ending on 14th. It is only a common mistake that the month was shown to be ending on the 15th of next month. Apart from this, the notice, which was sent terminating the tenancy clearly mentions this position. However, the said notice has not been replied to. Shri Shelat suggests that his client never received this notice and, therefore, there is no question to reply. Be that as it may, in the wake of the finding that this notice was received, this argument of Shri Shelat cannot be entertained. It will have, therefore, to be held that the tenancy month was always treated by the parties to be starting from 15th of the month and ending on 14th of next month. If that be so, then notice given is a perfectly valid notice and had the effect of terminating the lease legally. In that view of the matter, the finding of the Appellate Court will have to be upheld. Under the circumstances, there is no question of interfering in this second appeal, which has no merits. The appeal is dismissed with costs.
At this stage, Shri Shelat, learned Counsel for the appellant prays for time as this is a rainy season and also for approaching the Supreme Court. In view of the rainy season, a further time of 3 months is granted to the appellant. Stay shall be extended upto 3 months from today.