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Tuesday, August 30, 2016

T.P.Act - sec. 105,106 and 107 = Un registered lease deed - can be considered as month to month lease or one year lease - Terms of tenancy can not used to derogate the statutory provision of Sec.106 T.P.Act ; Non registration of the lease= “It is the general proposition of law in view of the provisions of Section 49 of the Indian Registration Act that when a document is required to be registered under a provision of law, it cannot be accepted in evidence of any transaction affecting an immovable property in absence of registration of that document. It is also true that in accordance with the provisions of Section 107 of the Transfer of Property Act, 1882, a lease of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument.- When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.- Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.” Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality = the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary’ in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable. In view of the above reasoning and conclusions recorded by us, the impugned judgment and order passed by the High Court is set aside. The judgment and order passed by the Trial Court is restored. The Appeal is accordingly allowed. No costs.

NON-REPORTABLE
 IN THE SUPREME COURT OF INDIA                              CIVIL APPELLATE
                                JURISDICTION
                  CIVIL APPEAL NO. 8361 OF 2016
                  (Arising out of SLP (C) No.24486 of 2014)


M/S PARK STREET PROPERTIES (PVT) LTD.     ………APPELLANT

                                     Vs.

DIPAK KUMAR SINGH & ANR.                       ……RESPONDENTS



                               J U D G M E N T


V. GOPALA GOWDA, J.

  Leave granted.
The present appeal arises out of  the  impugned  judgment  and  order  dated
15.05.2014 passed by the High Court of Calcutta in F.A.  No.  151  of  2012,
whereby the High Court has set aside  the  order  of  the  Trial  Court  and
remanded the matter to it for reconsideration from the  stage  of  examining
the question of validity of the notice dated 30.10.2008.

The relevant facts of the  case  required  to  appreciate  the  rival  legal
contentions  advanced  on  behalf  of  the  parties  are  stated  in   brief
hereunder:

One Karnani Properties Limited, a company incorporated under  the  Companies
Act, 1956 was the owner of the suit  premises.  It  had  let  out  the  suit
premises in favour of the appellant herein with  the  right  to  sublet  the
same or portions thereof. The appellant herein  entered  into  an  agreement
dated 15.10.2004 with the respondents subletting the suit premises  for  the
purpose  of  carrying  out  business  from  the   ‘Blue   Fox   Restaurant’.
Subsequently, the respondents requested the appellant to allow them  to  run
franchise or business dealing with McDonald’s  family  restaurant  from  the
suit premises. In pursuance of the same, the agreement dated 15.10.2004  was
terminated, and a tenancy of the suit premises was created in favour of  the
respondents on the basis of an unregistered agreement dated 07.08.2006 at  a
rent and on the terms and conditions agreed therein. In terms  of  the  said
agreement, the tenancy commenced from 01.08.2006, at a rent of Rs.  20,000/-
per month, payable by the  tenants-respondents  by  the  7th  day  of  every
succeeding month according to the English  calendar.  Further,  as  per  the
terms of the agreement, in case of breach of the  agreement,  the  landlord-
appellant was entitled to terminate the tenancy after serving  a  notice  of
period of thirty days. On 30.10.2008, the appellant issued  a  notice  under
Section 106 of the Transfer of Property Act, 1882 (hereinafter  referred  to
as the “Act”) terminating the monthly tenancy of the respondents in  respect
of the tenanted premises upon the  expiry  of  15  days  from  the  date  of
receipt of the said notice. Upon the expiry of the period of  15  days,  the
respondents did not vacate the suit  premises.  The  appellant  thus,  filed
suit for recovery of khas possession and mesne profits of the suit  premises
before the City Civil Court at Calcutta. The respondents contested the  suit
inter alia contending that by necessary implication the parties  had  agreed
to not terminate the lease of the premises before 30 years, and that it  was
for this reason, a clause was incorporated for enhancement of  monthly  rent
at the rate of 15% after expiry of every 3 years.  The  respondents  further
urged that the appellant had permitted them to invest a substantial  sum  of
money for further repair and renovation of the  tenanted  premises  suitably
for their business. Thus,  the  appellant,  by  its  declaration,  acts  and
omissions had intentionally caused and permitted the respondents to  believe
that they will not terminate the lease of the respondents in respect of  the
tenanted premises before the expiry of the franchise agreement  for  running
the McDonald’s Family Restaurant from the tenanted premises.  It  was  thus,
urged by the respondents that the notice of termination of lease is bad  and
not in accordance with law. The Trial Court, after  examining  the  evidence
on record, decreed the suit in favour of the appellant.
“It appears that clause 6 of the unregistered Memorandum of Agreement  dated
7th August, 2006, is an important clause which deals with  determination  or
termination of the tenancy only in case of non-payment  of  rent  for  three
consecutive months and the tenant in spite of notice to remedy  such  breach
fails to make such payment. When the document is inadmissible  in  evidence,
none of its terms can be admitted in evidence for the purpose of proving  an
important clause contained therein  including  the  clause  6.  Reliance  on
clause 6 of the memorandum of Agreement dated 7th  August,  2006  cannot  be
termed as using the document  for  a  collateral  purpose,  in  as  much  as
proving and/ or reliance on clause 6 is an important term of  the  agreement
which cannot be proved by admission  of  an  unregistered  lease  deed  into
evidence.
So the notice appears to be legal and valid.”
                      (emphasis laid by this Court)

The respondents were accordingly,  directed  to  vacate  the  suit  premises
within three months from the date of the order. Aggrieved  of  the  judgment
and order of the Trial Court, the respondents challenged the correctness  of
the same by way of filing appeal before  the  High  Court.  The  High  Court
observed as under:
“It is the general proposition of law in view of the provisions  of  Section
49 of the Indian Registration Act that when a document  is  required  to  be
registered under a provision of law, it cannot be accepted  in  evidence  of
any transaction affecting an immovable property in absence  of  registration
of that document. It is also true that in accordance with the provisions  of
Section 107 of the Transfer of Property Act, 1882,  a  lease  of  immoveable
property from year to year or for any term exceeding one year  or  reserving
a yearly rent can be made only by a registered instrument.
But the above observation does not exhaust the scope of determination  of  a
question  as  regards  admissibility  of  an  instrument  which   has   been
improperly admitted in evidence. The  decision  of  Javer  Chand  &  Ors  v.
Pukhraj Surana reported in  AIR  1961  SC  1655  is  an  authority  for  the
proposition that once document has been marked as an exhibit in a  case  and
the trial has proceeded all along on the footing that the  document  was  an
exhibit in the case and has been used by  the  parties  in  examination  and
cross examination of their witnesses, it is not open  either  to  the  trial
court itself or to a court of appeal or revision to go behind that order.
The learned Court below committed an error in passing the decree  in  favour
of the respondent. The impugned  judgment  is,  therefore,  required  to  be
interfered with and the validity of the  notice  dated  October  30,2008  is
required to be reconsidered by the learned  Court  below  looking  into  the
“Exhibit-4”


The High Court accordingly, allowed the appeal and remanded  the  suit  back
to the Trial Court for reconsideration  from  the  stage  of  examining  the
question of validity of notice dated 30.10.2008. Hence, the  present  appeal
filed by the appellant.
Mr. C.A. Sundaram,  learned  senior  counsel  appearing  on  behalf  of  the
appellant contends that the agreement dated  07.08.2006  creates  a  monthly
tenancy.  It  is  submitted  that  in  terms  of  Section  17(1)(d)  of  the
Registration Act and Section  107  of  the  Act,  the  said  document  would
require registration only if it leases the  immoveable  suit  property  from
year to year or for any term exceeding one year or  receiving  yearly  rent.
Therefore,  the  agreement  dated  07.08.2006  was  not   required   to   be
registered. It is further contended that it is not  even  the  case  of  the
appellant that the agreement intended to grant lease of year  to  year.  The
learned  senior  counsel  further  contends  that  a  monthly   tenancy   is
terminable at will. In the instant case, the monthly tenancy was  terminable
only in the  manner  stipulated  under  Clause  6  of  the  agreement  dated
07.08.2006. The learned senior counsel further contends that it is the  case
of the appellant that  in  terms  of  the  lease,  the  same  could  not  be
terminated unless there was a breach of  its  provisions.  It  is  contended
that this argument cannot be accepted, as that goes against the very  spirit
of Section 106 of the Act. It  is  contended  that  the  term  ‘contract  to
contrary’ in Section 106 of the Act only envisages  a  valid  contract,  and
that Section 106 of the Act cannot be subverted by way of a  contract  which
is contrary to the provisions of law. It is contended that parties are  free
to contract out of Section 106 of the  Act  only  by  way  of  a  registered
instrument and not otherwise. The learned senior counsel places reliance  on
the decision of this Court in the case of Samir  Mukherjee  v.  Davinder  K.
Bajaj[1], the relevant potion of which is extracted as hereunder:
“Section 107 prescribes the procedure for execution of a lease  between  the
parties. Under the first paragraph of this  section  a  lease  of  immovable
property from year to year or for any term exceeding one year  or  reserving
yearly rent can be made only by registered instrument and remaining  classes
of leases are governed by the second paragraph that  is  to  say  all  other
leases of immovable property can be made either by registered instrument  or
by oral agreement accompanied by delivery of possession.
In the case in hand we are concerned with an oral lease which is hit by  the
first paragraph of Section 107  of  the  Transfer  of  Property  Act.  Under
Section 107 parties have an option to enter into a lease in  respect  of  an
immovable property either for a term less than a year or from year to  year,
for any term exceeding one year or reserving a yearly rent. If  they  decide
upon having a lease in respect of any immovable property from year  to  year
or for any term exceeding one year, or reserving yearly rent, such  a  lease
has to be only by a  registered  instrument.  In  absence  of  a  registered
instrument no valid lease from year to year or  for  a  term  exceeding  one
year or reserving a yearly rent can be created. If the lease is not a  valid
lease within the meaning of the opening words of Section  106  the  rule  of
construction embodied therein would not  be  attracted.  The  above  is  the
legal position on a harmonious reading of both the sections.
      In Ram Kumar Das (supra), Section 106 was considered  by  a  bench  of
four judges of this court. This court held that this section 106  lays  down
the rule of construction which is to be applied  when  there  is  no  period
agreed upon between the parties  and  in  such  cases  duration  has  to  be
determined by the reference to the object for purpose for which  tenancy  is
created. It was also  held  that  rule  of  construction  embodied  in  this
section applies not only to express leases of uncertain  duration  but  also
to leases  implied  by  law  which  may  be  inferred  from  possession  and
acceptance of rent and other circumstances. It was further held that  it  is
not disputed that a contract to the contrary as contemplated by Section  106
of the Transfer of Property Act need not be an express contract; it  may  be
implied, but it certainly should be a valid contract. On the  fact  of  that
case, the court held that 'the difficulty  in  applying  this  rule  to  the
present case arises from  the  fact  that  tenancy  from  year  to  year  or
reserving an yearly rent can be made only by registered instrument  as  lays
down in Section 107 of the Transfer of Property Act.'”
                 (emphasis laid by this Court)


The learned senior counsel further places reliance on the decision  of  this
Court in the case of K.B. Saha & Sons Pvt.  Ltd  v.  Development  Consultant
Ltd.[2], wherein it was held as under:
“34. From the principles laid down in the various decisions  of  this  Court
and the High Courts, as referred to hereinabove, it is evident that :-

1. A document required to be registered, if unregistered is  not  admissible
into evidence under Section 49 of the Registration Act.

2. Such unregistered  document  can  however  be  used  as  an  evidence  of
collateral purpose  as  provided  in  the  proviso  to  Section  49  of  the
Registration Act.

3. A collateral transaction must be independent of, or divisible  from,  the
transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to  be
effected by a registered document, that is,  a  transaction  creating,  etc.
any right, title or interest in immoveable property  of  the  value  of  one
hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration,  none
of its terms can be admitted in evidence and that to use a document for  the
purpose of  proving  an  important  clause  would  not  be  using  it  as  a
collateral purpose.
35. In our view, the particular clause in the lease  agreement  in  question
cannot be called a collateral purpose. As noted earlier, it is the  case  of
the appellant that the suit premises was let out  only  for  the  particular
named officer of the respondent and accordingly, after the same was  vacated
by the said officer, the respondent was not entitled  to  allot  it  to  any
other employee and was therefore, liable to be evicted which, in  our  view,
was an important term forming part of the lease agreement.  Therefore,  such
a Clause, namely, Clause 9 of the Lease Agreement in this  case,  cannot  be
looked into even for collateral purposes to come to a  conclusion  that  the
respondent was liable to be evicted because of violation of Clause 9 of  the
Lease Agreement. That being the position, we are unable to hold that  Clause
9 of the Lease Agreement, which is admittedly unregistered,  can  be  looked
into for the purpose of evicting the respondent from the suit premises  only
because the respondent was not entitled to induct  any  other  person  other
than the named officer in the same.”

The learned senior counsel submits that  there  is  no  infirmity  with  the
judgment and order of the Trial Court  and  that  the  High  Court  was  not
justified in interfering with the same and remanding the matter back to  the
Trial Court on the ground that the terms of the agreement  dated  07.08.2006
were not taken into consideration in a proper perspective.

On the other hand, Mr. Anindya Mitra  and  Mr.  Gopal  Subramanium,  learned
senior  counsel  appearing  on  behalf  of  the  respondents  contends  that
termination of lease is by its definition  meant  to  disrupt  the  contract
between the parties. Sections 106 and 107 of the Act provides  for  duration
of leases and how they are to be made. It is submitted that Section  106  of
the Act cannot be departed from and that the operation  of  Section  107  of
the Act can be excluded by virtue of Section 106 of the Act  only  in  cases
where there is a valid contract to  the  said  effect.  The  learned  senior
counsel places reliance on the decision of this Court in  the  case  of  Ram
Kumar Das v. Jagadish Chandra Deb Dhabal[3], wherein it was held as under:
“The section lays down a rule of construction which is to  be  applied  when
there is no period agreed upon  between  the  parties.  In  such  cases  the
duration has to be determined by reference to  the  object  or  purpose  for
which the tenancy is created. The rule  of  construction  embodied  in  this
section applies not only to express leases of uncertain  duration  but  also
to leases  implied  by  law  which  may  be  inferred  from  possession  and
acceptance of rent and other circum- stances. It is  conceded  that  in  the
case before us   the tenancy  was  not  for  manufacturing  or  agricultural
purposes. The object was to enable the lessee to build structures  upon  the
land. In these circumstances, it could be regarded as a tenancy  from  month
to month unless there was a contract to the contrary. The question  now  is,
whether there was a contract to  the  contrary  in  the  present  case?  Mr.
Setalvad relies very strongly upon the fact that the rent paid here  was  an
annual rent and he argues that from this fact  it  can  fairly  be  inferred
that the agreement between  the  parties  was  certainly  not  to  create  a
monthly tenancy. It is not disputed that the contract to  the  contrary,  as
contemplated by section 106 of the Transfer of Property Act, need not be  an
express contract; it may be implied, but it  certainly  should  be  a  valid
contract. If it is no contract in law, the section  will  be  operative  and
regulate the duration of the lease. It  has  no  doubt  been  recognised  in
several cases that the mode in which a  rent  is  expressed  to  be  payable
affords  a  presumption  that    the   tenancy       is   of   a   character
corresponding there to. Consequently, when the rent reserved  is  an  annual
rent, the presumption would arise that the tenancy  was  an  annual  tenancy
unless there is something to rebut the presumption.”


  The  learned  senior  counsel  submits  that  in  the  instant  case,  the
requirements under Section 106 of the Act need to be adhered to,  as  clause
6 of the agreement operates as a contract to the contrary.

We have heard the learned senior counsel appearing on behalf of the  parties
and have perused the  evidence  on  record.  The  essential  question  which
arises for our consideration in the instant case is  whether  the  agreement
dated 07.08.2006 can be read in evidence, and whether it is  a  contract  to
contrary in terms of Section 106 of the Act.

At the outset, it would be useful to refer to the  statutory  provisions  at
play in the instant case, which are Sections 106 and 107 of the  Act,  which
read as under:
“106. Duration of certain leases in absence of  written  contract  or  local
usage:

In the absence of a contract or local law or usage to the contrary, a  lease
of immovable property for agricultural or manufacturing  purposes  shall  be
deemed to be a lease from year to year, terminable, on the  part  of  either
lessor or lessee, by six months' notice expiring with the end of a  year  of
the tenancy; and a lease of immovable property for any other  purpose  shall
be deemed to be a lease from month to month,  terminable,  on  the  part  of
either lessor or lessee, by fifteen days' notice expiring with the end of  a
month of the tenancy.

Every notice under this section must be in writing, signed by or  on  behalf
of the person giving it, and either be sent by post  to  the  party  who  is
intended to be bound by it or be tendered or delivered  personally  to  such
party, or to one of his family or servants at his  residence,  or  (if  such
tender or delivery is not practicable) affixed to a conspicuous part of  the
property.

107. Leases how made:
A lease of immovable property from year to year, or for any  term  exceeding
one year or reserving a yearly rent,  can  be  made  only  by  a  registered
instrument.

All other leases of immovable property may be made either  by  a  registered
instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is  made  by  a  registered  instrument,
such instrument or, where there are more instruments  than  one,  each  such
instrument shall be executed by both the lessor and the lessee:

PROVIDED that the State Government from time to  time,  by  notification  in
the Official Gazette, direct that leases of immovable property,  other  than
leases from year to year, or for any term exceeding one year,  or  reserving
a yearly rent, or any class of such leases,  may  be  made  by  unregistered
instrument or by oral agreement without delivery of possession.”
             (emphasis laid by this Court)

A perusal of Section 106 of the Act makes it clear that it creates a  deemed
monthly tenancy in those cases where there is no  express  contract  to  the
contrary, which is terminable at a notice period of  15  days.  The  section
also lays down the requirements of a valid notice to terminate the  tenancy,
such as that it must be in writing, signed by the person sending it  and  be
duly delivered. Admittedly, the validity of the notice itself is  not  under
challenge. The main contention advanced on  behalf  of  the  respondents  is
that the impugned judgment and order is valid in light of  the  second  part
of Section 107 of the Act, which requires that lease for  a  term  exceeding
one year can only be made by way of a registered instrument.

At this stage, it will also be useful to examine Clause 6 of  the  agreement
dated 07.08.2006, which reads as under:
“6. Default
In the event of any default on the part of the Tenants in making payment  of
the rent for 3 consecutive months or in the event of any breach of  any  the
terms and conditions herein contained and on the part of the tenants  to  be
performed and observed and the landlord shall be entitled to serve a  notice
on call upon the tenants to make payment of the rent and to remedy  for  the
breach of any of the remaining terms and conditions herein contained and  if
within a period of 30 days, the Tenants shall fail to remedy the breach  the
landlord shall be entitled to determine or terminate the tenancy.”
             (emphasis laid by this Court)

Thus, in terms of clause 6 of the agreement, the landlord  was  entitled  to
terminate the tenancy in case there  was  a  breach  of  the  terms  of  the
agreement or in case of non-payment of rent  for  three  consecutive  months
and the tenants failed to remedy the same within a period of thirty days  of
the receipt of the notice.  The  above  said  clause  of  the  agreement  is
clearly contrary to the provisions of Section 106 of the Act. While  Section
106 of the Act does contain the phrase ‘in the absence of a contract to  the
contrary’, it is a well settled position of  law,  as  pointed  out  by  the
learned senior counsel appearing on behalf of the appellant  that  the  same
must be a valid contract.
It is also a well  settled  position  of  law  that  in  the  absence  of  a
registered instrument, the courts are not  precluded  from  determining  the
factum of tenancy from the other evidence on record as well as  the  conduct
of the parties. A three Judge bench of this Court in the case of Anthony  v.
KC Ittoop & Sons[4], held as under:
“A lease of immovable property is defined in Section 105 of the  TP  Act.  A
transfer of a right to enjoy a property in consideration of a price paid  or
promised to be rendered periodically or on specified occasions is the  basic
fabric for a valid lease. The provision says that such  a  transfer  can  be
made expressly or by implication. Once there is such a transfer of right  to
enjoy the property a lease stands created. What is mentioned  in  the  three
paragraphs of the first part of Section 107 of  the  TP  Act  are  only  the
different modes of how leases are created.  The  first  paragraph  has  been
extracted above and it deals with   the  mode  of  creating  the  particular
kinds of leases mentioned therein. The third paragraph  can  be  read  along
with the above as it contains  a  condition  to  be  complied  with  if  the
parties choose to create a lease as per a  registered  instrument  mentioned
therein. All other leases, if created, necessarily fall within the ambit  of
the second paragraph. Thus, dehors  the  instrument  parties  can  create  a
lease as envisaged in the  second  paragraph  of  Section  107  which  reads
thus………
When lease is a transfer of a right to enjoy the property and such  transfer
can be made expressly or by implication, the mere fact that an  unregistered
instrument came into existence would not stand in the way of  the  court  to
determine whether there was in fact a  lease  otherwise  than  through  such
deed.
………………
Taking a    different view would be contrary to  the  reality  when  parties
clearly intended to  create  a  lease  though     the  document  which  they
executed had not gone  into the processes of registration. That  lacuna  had
affected the validity of the document, but what  had  happened  between  the
parties     in respect of the property became a  reality.  Non  registration
of the      document had caused only   two consequences.     One is that  no
lease exceeding one year was created. Second is that the  instrument  became
useless so far as creation  of  the  lease  is  concerned.  Nonetheless  the
presumption that a lease not exceeding one   year stood created  by  conduct
of parties remains un-rebutted.”
              (emphasis laid by this Court)

Thus, in the absence of registration of a document, what  is  deemed  to  be
created is a month to month tenancy, the termination of  which  is  governed
by Section 106 of the Act.
Thus, the question of remanding the  matter  back  to  the  Trial  Court  to
consider it afresh in view of the fact that the same has  been  admitted  in
evidence, as the High Court has done in the  impugned  judgment  and  order,
does not arise at all. While the agreement dated 07.08.2006 can be  admitted
in evidence and even relied upon by the parties to prove the factum  of  the
tenancy, the terms  of  the  same  cannot  be  used  to  derogate  from  the
statutory provision of Section 106 of the Act, which creates  a  fiction  of
tenancy in absence of a registered instrument  creating  the  same.  If  the
argument advanced on behalf of the  respondents  is  taken  to  its  logical
conclusion, this lease can never be terminated, save in cases of  breach  by
the tenant. Accepting this argument would mean that  in  a  situation  where
the tenant does not default on rent payment for  three  consecutive  months,
or does not commit a breach of the terms of the lease, it  is  not  open  to
the lessor  to  terminate  the  lease  even  after  giving  a  notice.  This
interpretation of the clause 6 of the agreement cannot be permitted  as  the
same is wholly contrary to the express provisions of  the  law.  The  phrase
‘contract to the contrary’ in Section 106 of the Act cannot be read to  mean
that the parties are free to contract out of the express provisions  of  the
law, thereby defeating its very intent. As is evident from the cases  relied
upon by the learned senior counsel appearing on  behalf  of  the  appellant,
the relevant portions of which  have  been  extracted  supra,  the  contract
between the parties must  be  in  relation  to  a  valid  contract  for  the
statutory right under Section 106 of  the  Act  available  to  a  lessor  to
terminate the tenancy at a notice of 15 days to not be applicable.

In view of the above reasoning and conclusions recorded by us, the  impugned
judgment and order passed by the High Court is set aside. The  judgment  and
order passed by the Trial Court  is  restored.  The  Appeal  is  accordingly
allowed. No costs.



                                                    …………………………………………………………J.
                               [V.GOPALA GOWDA]


 …………………………………………………………J.
                               [ADARSH KUMAR GOEL]

New Delhi,
August 29, 2016
-----------------------
[1]
      [2] (2001) 5 SCC 259
[3]
      [4] (2008) 8 SCC 564
[5]
      [6] 1952 (3) SCR 269
[7]
      [8] (2000) 6  SCC 394