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M. Janakiram Naidu Vs. T.R. Arumugha Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtChennai High Court
Decided On
Reported in(1970)2MLJ535
AppellantM. Janakiram Naidu
RespondentT.R. Arumugha Mudaliar
Cases ReferredBalgovind v. Bhargava School Book Depot.
Excerpt:
- - on the question of notice, the appellate authority held that no notice terminating the tenancy is necessary but that even assuming that such a notice is necessary, he was satisfied that exhibits p-2 and p-3, copy of the notice and the postal acknowledgment thereof, were sufficient to enable the respondent to seek eviction of the petitioner. in this revision by the tenant the only question that was pressed before me was as to whether the requirement as to notice terminating the tenancy prior to the filing of the eviction petition was satisfied. in that case the notice was said to have been refused by the addressee and the court held that even if the actual refusal by the addressee is not proved, service of the notice may well be held to have been proved......that a letter containing a notice to quit is properly addressed, pre-paid and sent by registered post, service shall, under section 27 of the general clauses act, be deemed to have been effected. according to the learned judges in that case ' deeming' amounts to a presumption which, unless rebutted,, would prove the fact of service. in that case the notice was said to have been refused by the addressee and the court held that even if the actual refusal by the addressee is not proved, service of the notice may well be held to have been proved.6. in this case the copy of the notice exhibit p-2 shows that it has been properly-addressed and the postal acknowledgment, exhibit p-3 shows that the registered' letter has been pre-paid. though exhibit p-2 does not contain the address of the'.....
Judgment:

G. Ramanujam, J.

1. This revision has been filed by the tenant against the order of eviction passed by the Rent Controller, Madras under Section 10(3)(a)(i) of the Madras Buildings (Lease and Rent Control) Act, 1960 and confirmed by the appellate authority, in respect of premises No. 78, Karaneeswarar Koil Street, Mylapore, Madras. Eviction was sought on the ground that the respondent (landlord) required the premises bona fide for his own use and occupation as he had no other premises of his own in the City of Madras and that he had purchased the premises in question only with a view to occupy the same. The petitioner contested the petition on the ground that there was no relationship of landlord and tenant as between himself and the respondent that his tenancy was only with the former owner and that in any event there was no notice terminating the tenancy. The Rent Controller found that there was the relationship of landlord and tenant as between the petitioner and the respondent, that the respondent bona fide required the premises for his own use and occupation and that there has been a valid notice terminating the tenancy as provided under Section 106 of the Transfer of Property Act and hence ordered eviction of the petitioner. On appeal, the appellate authority also held that there was an attornment by the petitioner in favour of the respondent after his purchase and that the respondent required the premises bona fide for his own use and occupation as he had purchased the property only with a view to occupy the same. On the question of notice, the appellate authority held that no notice terminating the tenancy is necessary but that even assuming that such a notice is necessary, he was satisfied that Exhibits P-2 and P-3, copy of the notice and the postal acknowledgment thereof, were sufficient to enable the respondent to seek eviction of the petitioner. In this revision by the tenant the only question that was pressed before me was as to whether the requirement as to notice terminating the tenancy prior to the filing of the eviction petition was satisfied. The learned Counsel for the petitioner did not challenge the findings of fact arrived at by the Courts below that the respondent required the premises bona fide for his own use and occupation and that there was a relationship of landlord and tenant between the petitioner and the respondent.

2. As regards the question of notice, the Rent Controller referred to Exhibit P-2 the office copy of the notice dated 31st January, 1967, sent by the Counsel for the respondent terminating the tenancy of the petitioner ending with 28th February, 1967 and calling upon the petitioner to deliver vacant possession by 1st March, 1967 and Exhibit P-3 the postal acknowledgment showing that one T. Shanmugam had acknowledged the receipt of the notice on nth February, 1967 and expressed that it was probable that, in the absence of the petitioner, some of his inmates might have received the original of Exhibit P-2. On the assumption that Shanmugam who has signed the acknowledgment, Exhibit P-3 was an inmate in the house of the petitioner the Rent Controller held that a notice under Section 106 of the Transfer of Property Act was in fact issued to the petitioner. The appellate authority also refers to Exhibits P-2 and P-3 and takes the acknowledgment signed by Shanmugam as an acknowledgment made on behalf of the petitioner as it is of the view that unless the appellant (petitioner) had authorised somebody to receive letters on his behalf Shanmugam could not have received the letter addressed to the petitioner. On that view it held that the petitioner should be deemed to have received the original of Exhibit P-2 and that there had been a valid notice terminating the tenancy under Section 106 of the Transfer of Property Act.

3. The learned Counsel for the petitioner contends before me that, while the Rent Controller proceeds on the basis that Shanmugam who is said to have acknowledged the original of Exhibit P-2 under Exhibit P-3 was an inmate of the petitioner's house, the appellate authority has proceeded on the basis that T. Shanmugam had the requisite authority from the petitioner to acknowledge the notice, the original of Exhibit P-2. It is pointed out that before the Rent Controller no evidence was adduced on the part of the respondent to show that Shanmugam was an inmate of the petitioner's house or that he had the requisite authority to acknowledge and that in the absence of any evidence it was not open to the Court, to assume that Shanmugam was an inmate of petitioner's house or that Shanmugam had the requisite authority to receive the notice addressed to the petitioner. It is said that the respondent has not examined the postman who delivered the notice to show under what circumstances the letter was handed over to Shanmugam. It is also said that there is none with the name Shanmugam in the petitioners' house and that the acknowledgment by the said Shanmugam should not be treated as a valid service of notice on the petitioner.

4. Exhibit P-2 is a typed copy of the notice said to have been addressed and sent to the petitioner at No. 78, Karaneeswarar Koil Street and Exhibit P-3 is the acknowledgment signed by one Shanmugham. Exhibit P-3 does not contain either the initial of the petitioner or his address. The recipient is shown as Shanmugam and it does not purport to have been signed on behalf of anyone else. On these facts the learned Counsel for the petitioner contends that the alleged notice not having been served on the petitioner, that notice is not sufficient to terminate the tenancy, and that the present eviction petition has to be dismissed as not maintainable.

5. The learned Counsel for the respondent (landlord) however contends that Exhibits P-2 and P-3 show that a notice as contemplated under Section 106 of the Transfer of Property Act was sent to the address of the petitioner, that it has been received by a person in that address and that it should be deemed to be a proper service on the petitioner. Reference was made to the decision in Saligram Bai Chunilal Bahadur & Co. v. Abdul Gani A.I.R. 1953 Gua.. 206, wherein it was expressed that there was no obligation upon a lessor to prove service of notice upon the lessee, if he sends a notice by registered post properly addressed. The learned Judges relied on Section 27 of the General Clauses Act and took the view that by virtue of that section unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document and it should be deemed that the service was effected at a time when the letter would be delivered in the ordinary course of post. Balgovind v. Bhargava School Book Depit. : AIR1958All369 , was also referred to. There the notice was received by somebody signing on behalf of the addressee and the Court invoked the presumption under Section 114 of the Evidence Act and held that the lessee must have been in the know of the person who signed the notice when it was delivered at the lessee's address, and this being exclusively within his knowledge, it was his duty to prove that this person who signed on behalf of the lessee was neither his servant nor agent nor a member of his family and that in the absence of proof on this point the presumption arising out of the registered letter being delivered at the lessee's shop could not be rebutted. Reliance was also placed on Sushil Kumar v. Ganesh Chandra : AIR1958Cal251 , wherein also it was held that as soon as it is proved that a letter containing a notice to quit is properly addressed, pre-paid and sent by registered post, service shall, under Section 27 of the General Clauses Act, be deemed to have been effected. According to the learned Judges in that case ' deeming' amounts to a presumption which, unless rebutted,, would prove the fact of service. In that case the notice was said to have been refused by the addressee and the Court held that even if the actual refusal by the addressee is not proved, service of the notice may well be held to have been proved.

6. In this case the copy of the notice Exhibit P-2 shows that it has been properly-addressed and the postal acknowledgment, Exhibit P-3 shows that the registered' letter has been pre-paid. Though Exhibit P-2 does not contain the address of the' petitioner, it gives the name of the petitioner and one can presume that the form of acknowledgment was appended to the registered notice said to have been sent and that the acknowledgment was taken from one Shanmugam at the address given in the registered letter. The fact that Shanmugam does not purport to have received the letter on behalf of the addressee will not show that the letter was delivered to a person in a different address. Having regard to the fact that the letter gave definite and specific particulars, the service should be deemed to have been made at the address shown. In view of the fact that the letter has been duly addressed and prepaid the provisions of Section 27 of the General Clauses Act is attracted.

7. Section 27 of the General Clauses Act says:

Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ' serve' or either of the expressions ' give' or ' send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

8. Section 106 of the Transfer of Property Act enables the lessor to determine the tenancy by a notice to quit and the relevant part of Section 106 as amended in 1929 is as follows:

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, of (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

As per the ' deeming' provided in Section 27 of the General Clauses Act, the service shall be deemed to have been effected by properly addressing, pre-paying and posting by registered post a letter containing the notice. The question is whether anything contrary has been proved to ignore that deeming provision. In this case the fact that Shanmugam has not purported to have signed on behalf of the petitioner and the non-furnishing of details of particulars in Exhibit P-3 are relied on to show that the requirements contemplated under Section 27 of the General Clauses Act have not been complied with. In this case a notice has been sent by the Counsel for the landlord and the acknowledgment, Exhibit P-3 was received in token of receipt of that letter. Though the petitioner says that there is no person by name, Shanmugam in his household, he must have let in sufficient evidence to rebut the presumption contained in Section 27 of the General Clauses Act by proving that Shanmugham had no requisite authority to acknowledge that letter and that there is no valid service on him. This he could have done by examining the postman who is said to have effected the service. In the absence of any rebuttal evidence by the petitioner the deeming provision in Section 27 of the General Clauses Act has to be given effect to. It is also possible to invoke, in the circumstances of this case, the presumption under Section 114 of the Evidence Act. As pointed out in Balgovind v. Bhargava School Book Depot. : AIR1958All369 , the purpose of the amendment of Section 106 of the Transfer of Property Act by the amending Act XX of 1929 evidently, was to make service by post an alternative provision for giving the notice under Section 106. The words requiring the delivery or tender of notice to the lessee '' personally or to one of his family or servants ' did not apply to a notice sent by post. Hence the petitioner's complaint that neither he nor anyone of his family members was personally served and that the petition cannot be maintained without such personal service cannot be accepted for, under the provisions of Section 106 as amended it is not necessary that a notice sent by registered post should be delivered personally to the lessee or to one of his family or servant. Service by post being an alternative mode and the respondent having sent the notice as required under Section 27 of the General Clauses Act, it has to be deemed that the service has been duly effected. The mere statement on oath by the petitioner that notice had not been received by him will not rebut the presumption contained in Section 114 of the Evidence Act and the deeming provision in Section 27 of the General Clauses Act. In this case notice should be presumed to have been served at the address given in the letter and in the absence of proof that the person who acknowledge that letter was neither a servant nor an agent nor a member of his family, the presumption of due service has to be invoked. I am therefore of the view that the notice, original of Exhibit P-2 should be held to have been served under Section 106 and the main contention raised by the petitioner in this revision should be over-ruled. The revision is therefore dismissed ; but, in the circumstances, without costs. Time for vacating three months.


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