V. Balasubrahmaniyan, J.
1. The question which arises in this Second Appeal is whether there was a valid notice terminating the appellant's tenancy of a non-residential building. The evidence showed that the owners of the building had directed their notice to this very address by prepaid registered post, but it was returned unserved. According to the postal endorsements on the returned cover, either the appellant was not found in the premises or the permises were found locked, whenever the postman called. On these facts, the trial Court held there was no service of the notice at all. On appeal, the appellate Court reversed this finding. It held that these facts were sufficient in themselves to raise a presumption in law that the service of notice in this case was valid and complete.
2. The suit in which this question has arisen is a suit in ejectment of a tenant. It need hardly be said that such a suit can be decreed only where the landlord is able to establish that prior to the suit he had terminated the tenancy by serving on the tenant a valid notice to quit. It becomes, therefore, important to determine whether or not there had been a valid service of the notice in the instant case.
3. The appellate Court upheld the notice relying on Section 114 of the Indian Evidence Act, 1872. This section enables a Court of law to presume the existence of any fact which it thinks is likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. The appellate Court said that it was entitled to presume that the appellant had evaded service of notice since he did not explain from the witness box why he was absent from his premises and why the premises were locked when the postman knocked.
4. It seems to me that Section 114 of the Evidence Act can searcely be invoked for estsblishing the factum of service of notice by post. Surely, it cannot be in the 'common course of natural events' such as night following the day, that a man should be away from his premises for no other reason than to evade service of his landlord's notice. Nor is it natural human conduct to lock one's door as the only effective means of refusing a notice. Besides, it is quits unnatural to assume that a man would shut down his shop and forego his day's earnings, just for the sake of evading a notice. To make such an assumption would be to equate our businessmen with Shade's Lamb's fictional Chinaman who assumed that the only way to roast a domestic pig was to burn the house down.
5. Apparently for the above reasons, learned Counsel for the landlords did not rely on Section 114 of the Evidence Act to support the judgment of the appellate Court. He rather relied on a nearer statutory provision enacted in Section 106 of the Transfer of Property Act, 1882. The section lays down the formal requirements of a notice to quit as well as the modes of service open to the landlord-The relevant part of the section is as under:
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.
The section contains two distinct provisions. The first deals with the formalities of a notice to quit. It says that it must be signed by the notice-giver or by someone else on his behalf. The second part of the section deals with the manner in which the notice is to be communicated. On this point, the section lays down alternative modes of service. The other is service by post. The section also provides for a third method in cases where either of the former modes is not practicable. Under the mode of personal service, the notice must be tendered to the party concerned or to any member of his family or any servant of his, but the tender must be at the party's residence. Where notice is taken by post, it must be by prepaid registered post. If these methods are not practicable, then, notice may be affixed on the property itself, which is the subject matter of the tenancy. It seems to me that the idea behind each of these alternative modes of service is that the party concerned must get to know that he is being sought after for service of notice. It, therefore stands to reason that the mere sending by post, without ensuring that the notice is either delivered, or short of delivery, at least actually tendered to the addressee, would not meet with the requirements of the section.
6. There can be no doubt about the importance attached by the statute to the question of service of notice to quit. It provides the indispensable pre-condition for termination of the tenancy either consensually or through Court process. It, therefore, stands to reason that the mere sending of the notice is not enough; the Court has to make sure that the notice had reached the addressee all right. At the worst, the Court must at least be satisfied that the notice was actually tendered to the tenant. The different modes of service permitted by Section 106 have been enacted only to the end that the landlord can choose the most appropriate and the best practicable means of getting at his tenant. The provisions are meant to ensure effective service and not to countenance non service. It would be ironical to suggest as it had been done in this case, that downright non-service of notice must nevertheless pass muster as effective service because of Section 106 of the Transfer of Property Act. It is well to remember that the modern tendency of the law is to protect the tenants, as a class, rather than their landlords, if it is a question of protection as between two classes. In this context, therefore, Courts must, in my opinion, resist all forensic attempts to whittle down the requirements as to notice in Section 106 of the Transfer of Property Act.
7. Learned Counsel for the respondents, however, submitted that even in a case where the tenant actually does not receive the notice, the law presumes service under certain circumstances. He referred to Section 27 of the General Clauses Act, 1897, and said that this provision laid down a rule of presumption in respect of service of notice by post. The section says:
Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes 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, prepaying 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.
Learned Counsel relied on the above rule of interpretation and urged that the notice in this case must be deemed to have been served on the tenant at the time at which the letter would normally have been delivered in the ordinary course of post.
8. If the argument of the respondents' learned Counsel were that the presumption as to validity of service under Section 27 of the General Clauses Act would hold the field in every case in which the following two facts are found, namely, (i) proper address of the tenant in the notice; and (ii) despatch by prepaid, registered post, I should reject the argument as not based on a proper understanding of the section, As I read it, the section does not lay down any inflexible or conclusive presumption as to service of notice by registered post. All it says is that the Court may presume service to have been effected by ordinary course of post if those circumstances are present, unless the contrary is proved. In other words, the section does not exclude evidence in rebuttal of the presumption.
9. In A.E.K. Kaliappa Nadar v. S.V.K.R. Amirthavalavandammal : AIR1973Mad255 cited by learned counse a notice to quit was issued by a landlord to his tenant by prepaid registered post. The notice was returned with the postal endorsement 'nor found'. In addition to these facts, it was further found, on evidence that the addressee had actually evaded service of the notice. On the facts found thus, the learned Judges held in that case there was valid service of notice to quit. The learned Judges, however, took the opportunity to clearly indicate in their judgment that if all that could be found in that case were : (i) the posting of the registered letter and (ii) the postal endorsement 'not found' therein, the Court could not properly sustain the finding that the notice had been validly served on the tenant, merely on the foot of those two circumstances. They observed:
We do not wish to lay down as, inflexible rule that, wherever a letter contained a proper address, it necessarily followed that the addressee had notice of it even when it was returned with the endorsement 'not found.
This passage to my mind, correctly reflects the legal position under Section 106 of the Transfer of Property Act even if that section were read in association with Section 27 of the General Clauses Act.
10. I am satisfied that in the face of the unserved notice in this case and in the face of the postal endorsements inscribed on the returned cover indicating that the appellant was not present in the premises on the material dates, the appellate Court was not warranted in holding that the notice to quit must nevertheless be deemed to have reached the appellant in the normal time which postal communications take to reach the place. In my view, the endorsements in the postal cover are enough in themselves to rebut the presumtion laid down by Section 27 of the General Clauses Act. I do not agree with the appellate Court's finding fault with the appellant for not having volunteered any Explanation for his absence from his premises. For, there is no presumption in law that because an addressee is absent from his premises or because his front door is shut during the brief moments of the postman's visits, he is especially seeking to evade service of legal notices 'addressed to him.
11. For these reasons, I allow this second appeal and set aside the decree under which the appellate Court granted possession to the respondents of the premises under the appellant's tenancy. There will, however, be no order as to costs.