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Essentials of a Valid Notice of Eviction

Serving of notice to the tenant for eviction of the tenanted premises is of paramount importance. In this article we are are going to discuss essentials of a valid notice in light of several judicial decisions.
  1. A tenancy which is neither permanent nor for a fixed term can be determined by a notice to quit. Whereas a tenancy fixed for a term through agreement may also entail service of notice for eviction.
  2. The notice should be in writing.
  3. The notice must be signed by or on behalf of, the person giving it, and if there are several lessors, all must join in the notice.
  4. Notice to quit given under the signature of one joint lessor mentioning “we give you the notice” etc is valid as it must be taken to have been given on behalf of all the joint lessors (Re: Madhusudan Prasad Agarwal Versus Sushma Bala Dasi).
  5. A notice to terminate the tenancy of a tenant of a trust deed need not to be given by all the trustees. The notice, should, however, purport to be on behalf of all the lessors, otherwise notice given by one joint lessor should not be sufficient to terminate the agency (Re: Jamil Ahmed versus Madhawanand, A 1979 ALL 104).
  6. It has been also upheld in the case of Sri Ram Pasricha versus Jagannath, 1976, SCC 184, that where one co-owner alone is landlord, notice by him is sufficient, so also a suit by him.
  7. The notice should be served either personally on the tenant or on a member of his family or on the servant at the tenant’s residence, or by post, or by affixing it to a conspicuous part of the property, if personal service is not practicable (Refer Section 106 of the Transfer of Property Act).
  8. The tender of notice is sufficient though the tenant may refuse to accept it. If the notice is sent by post, proof of posting and non-return will raise a presumption of its service.
  9. This presumption is not displaced, if when a notice is sent by a registered post, an acknowledgment is received purporting to be signed by someone else on behalf of the addressee (Bachalal versus Lachman, 176 IC 393, A 1938 ALL 388).
  10. If there are several tenants in common, the notice should be addressed jointly to all though the service of such notice on one is evidence of information to all (Lila Dhar versus Ramji Das, 1956, ALJ 650; 650).
    The notice should show a definite intention of termination of tenancy.
  11. The notice period should in accordance with the tenancy agreement. If the agreement is silent then it should comply with the minimum requirements as laid down in-state acts. In the state of West Bengal, the minimum period of notice is one month (in absence of specific clause in rent agreement thereof).

Many suits are dismissed for some defect in the form of notice. The law should, therefore, be clearly understood, before drafting a notice and before drafting a plaint, a pleader should satisfy himself of the correctness and sufficiency of the notice given. Mere demand for possession is not a notice to quit (Narayan versus Kunbhan Mannudiar, A 1949 Mad 127, 1942 MLJ 559, MWN 775).

It has been further held in the case of Achintya Kumar Saha versus Nanee Printers (2004, 12 SCC 368), in view of the rent control laws and the concept of statutory tenancy evolved in the respect of urban building it is now generally necessary to determine tenancy by a notice to quit before claiming ejectment on grounds admissible under such laws.

In the case of Dhanpal Chettiar versus Yesodai Ammal, it was held by the Honorable Court:
  1. In the case of a landlord wishing to evict his tenant under the Rent Acts determination of the lease in accordance with the Transfer of Property Act is unnecessary.
  2. It is a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be a tenant even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of determination of the lease by the issue of notice in accordance with section 106 of the Transfer of Property Act.
  3. Although the Rent Acts restrict the rights which the landlord possesses either for charging excessive rents or for evicting tenants, if, within the ambit of those restricted rights the landlord makes out his case, it is a mere empty formality, a mere surplusage, to ask him to determine the contractual tenancy before the institution of a suit for eviction.

  4. Such a notice under the Transfer of Property Act is necessary because a mere determination of the lease entitles a landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must also determine the contractual tenancy. It is of no practical use to insist again upon notice under Section 106, after placing so many restrictions under the Rent Acts on the landlord’s right to evict the tenant.

Thus from the above discussion, we can come to the conclusion that serving of a valid notice is imperative before initiating the eviction process.

The notice may initially be served by the landlord and if no response is received within the specified time period (as may be mentioned in the rent agreement and/or notice), the notice may be served on a tenant through a practicing advocate.

However, it is worth mentioning that various restrictions are imposed on the landlord’s right to evict a tenant (to be covered separately in ensuing articles).

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