Doraipandian Pillai vs M.S. Sivagnanam Pillai

M. Natesan, J.—The short question for decision in this case is whether the tenancy of the appellant (defendant) has been validly terminated

by a proper notice to quit u/s 106 of the Transfer of Property Act. The appellant was a lessee of the suit house from one Nagarathinam Pillai. The

plaintiff-respondent in this second appeal purchased the house from Nagarathinam Pillai and admittedly after the purchase, the appellant-defendant

(tenant) attorned to him. On 4th February, 1967 the plaintiff issued a notice to the defendant terminating the tenancy. This notice was received by

the defendant on 8th February, 1967, but the effect of the notice terminating the tenancy was waived by the landlord. The plaintiff subsequently

appropriated the amounts sent by the defendant for rent due till the end of 22nd March, 1967 and in his plaint would claim rent for the further

period of the month also. The notice which has been relied on by the plaintiff as terminating the tenancy entitling the plaintiff to maintain the suit for

ejectment is the registered notice dated 9th March, 1967, sent by prepaid registered post, acknowledgment due, properly addressed terminating

the tenancy with 31st March, 1967 and requiring the vacant to deliver vacant possession of the premises on 1st April, 1967. This notice has been

returned unserved with the postal endorsement '' not found '' dated 20th March, 1967. On a scrutiny of the cover and the postal endorsements it is

seen that the defendant was not found from nth March, 1967. Manifestly, there is nothing on record or on the postal endorsement to show that the

notice was tendered to the defendant.

Section 106 of the Transfer of Property Act provides, that a notice terminating the tenancy 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. It is well

established that a tenancy from month to month does not come to an end by mere efflux of time ; it comes to an end on the expiration of the notice

to quit. When we speak of notice to quit, and the law requires that a particular period should expire since notice, it is axiomatic that the intention to

terminate the tenancy must be carried home to the knowledge of the tenant and he must have notice of it for the requisite period. Otherwise, there

is no purpose in providing for a period and specifying that the prescribed period must expire with the end of the month of the tenancy. Clearly the

notice provided for in Section 106 of the Transfer of Property Act is not an empty formality. When a tenancy is terminable by notice, be it by the

tenant or the landlord, what is intended by the notice is to give a warning of the intention to end the contract of tenancy at a certain time. The

second part of Section 106 of the Transfer of Property Act only provides for the manner in which the notice may be given. It can either be sent by

post or tendered or delivered personally to the party intended to be bound by it or to one of his family or servants at his residence. If tender or

delivery is not practicable, it may be affixed to a conspicuous part of the property. If the tenant or landlord deliberately avoids, receipt of the notice

properly tendered, he will be credited with knowledge of the contents of the notice.

The Courts below have proceeded in the view that as in fact and admittedly (the notice was sent by) post that is sufficient to terminate the

tenancy even if there was no tender of the notice to the addressee. In that view, ejectment has been ordered and the suit decreed. The lower

appellate Court, when confirming the decision of the trial Court, relies upon a passage in Saligram Rai Chunilal Bahadur & Co. v. Abdul Ghani

AIR 1953 Ass 206. The passage I should say is taken out mutilated, and out of its context. In that case the defendants disputed the receipt of the

notice sent by registered post. But as observed by the Court, that was belied by the acknowledgment filed. The lower Court in that case

proceeded in the view that the post peon ought to have been called upon to prove service of notice. It is on that, having regard to Section 27 of the

General Clauses Act, the Court observed that there is no obligation upon a lessor to prove service of notice upon the lessee if he sends a notice by

registered post properly addressed. That is a case where receipt of notice was prima facie established. The other case relied on for the landlord is

a case where the postal endorsement was that the letter was ''refused''. If a letter is returned '' refused '', a presumption can be drawn that it was

duly tendered to the addressee and that he refused to take delivery of it.

In Sushil Kumar Chakravarty Vs. Ganesh Chandra Mitra, , notice sent to the proper address pre-paid and posted by registered post was

returned with the endorsement '' refused''. The Court referring to Section 27 of the Indian General Clauses Act and Section 114 Illustrations (e)

and (f) of the Evidence Act, drew the presumption having regard to the state of the record in the case that the endorsement '' refused '' was a

correct statement of fact. But the endorsement in this case, is, ''not found''. It is apparent from the postal returns that the post peon had made

several attempts to serve the notice on the addressee but on all occasions he was absent. There is no suggestion that the defendant knowing that a

notice to quit was intended to be served on him manoeuvred in league with the postal peon to secure a false return. The Resumption illustrated in

Sections 114 (e) and (f) will apply as much to this return'' not found'' and '' absent'' as to the return '' refused'', and until rebutted must be accepted

as a correct return. In Gobinda Chandra Shaha v. Dwarka Nath Patita 19 C.W.N. 489, :

Proof of the fact that a letter correctly addressed has been posted and has not been received back through the Dead Letter Office may justify the

presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been

returned by the Postal Authorities does not justify the presumption that it has been so returned because it has been refused by the addressee, for it

may well be that it has been returned because the addressee has not been found ; much less is there a presumption that the cover has been

tendered to the addressee on a particular date.

The postal endorsement in that case was '' refused '' and the defendant in that case denied any tender of the letter by the postal peon. Having

regard to this denial the Court proceeded to observe:

We may further point out that the presumption mentioned in Section 114 is not a presumption of law but a presumption of fact, and where, as in

this case, the defendant pledges his oath that the cover was never tendered to him, we cannot trust the presumption of regularity of official business

as conclusive against him.

The question has again been considered by the Calcutta High Court in Hare Krishna Das v. Hahnemann Publishing Co., Ltd. 70 C.W.N. 262,

where the endorsement of return on the notice attempted to be served by registered post was '' left''. The Court with reference to this endorsement

observed:

This prima facie means that the postal peon could not contact the defendant. Accordingly, it should be taken that (there was) no tender of the

notice to the defendant, particularly, when there is no definite or specific evidence to that effect. The presumption which would have otherwise

arisen under the law (vide Section 27 of the Indian General Clauses Act and Section 28 of the Bengal General Clauses Act) in favour of the

plaintiff and which presumption is, on the face of it, a rebuttable presumption would be rebutted. Service by registered post cannot, therefore, be

availed of by the plaintiff in the present case.

The latest case from the Calcutta High Court in Surajmull Ghanshyamdas Vs. Samadarshan Sur, , is again a case where the endorsement on

attempted service by registered post was '' left''. The Court below had in that case accepted the return as good service. Overruling this view it was

observed by the High Court:

Indeed the word ''left'' itself shows that there was no tender and, unless there was a tender to the addressee, on no conceivable principle, can

service by registered post be accepted as good service. The service by registered post, in the instant case, must therefore be rejected.

In the instant case, the endorsements are that the addressee was '' absent'' on the several occasions when the post peon visited the residence of the

addressee. Finally the post peon returned the cover with the endorsement '' not found ''. As stated already, it is manifest that there has been no

tender. In the face of the return there is no room for applying the presumption u/s 27 of the General Clauses Act. Clearly there is no notice to the

tenant determining his tenancy. The suit, in ejectment in the circumstances, is not maintainable. The Courts below erred in the circumstances in

decreeing the suit. The judgments and decrees of the Courts below are therefore set aside and the suit dismissed. The second appeal is allowed.

The parties will bear their own respective costs in the trial Court and the lower appellate Court. The appellant-defendant will be entitled to his

costs in this Court.

No leave.