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Subadini Vs. Durga Charan Law and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal118
AppellantSubadini
RespondentDurga Charan Law and ors.
Cases Referred and Migotti v. Colvill
Excerpt:
landlord and tenant - ejectment--transfer of property act (17 of 1882) section 106, clause 2--notice to quit--service of notice through post office by registered letter--sufficiency of notice--monthly tenancy--clear days. - .....also held that the notice was insufficient, as the plaintiff did not give the defendants 15 clear days notice to quit. it is to be observed that the subordinate judge has found that the defendant's tenancy is one of a monthly nature and that it can be put an end to by 15 days' notice. there is no cross-appeal against this finding.4. we think that in some respects the subordinate judge is wrong. in the first place, he says that service by registered letter through the post office is not a proper service of the notice to quit under section 106 of the transfer of property act. we are unable to concur with him in this view. it is true that the second clause of section 106 says that the notice under this section must be 'tendered or delivered either personally to the party who is intended to.....
Judgment:

1. This is an appeal from a decision of the Subordinate Judge of Jessore, dated the 2nd of June 1898.

2. The suit is one for ejectment of a tenant, or rather the transferees of a former tenant, who has abandoned the land, and is no longer in possession of it.

3. The Subordinate Judge has dismissed the suit, holding that notice to quit has not been served upon the defendants Nos. 1 to 3, and further that the notice that was served upon the defendants was not properly served under the provisions of Section 106 of the Transfer of Property Act. He has also held that the notice was insufficient, as the plaintiff did not give the defendants 15 clear days notice to quit. It is to be observed that the Subordinate Judge has found that the defendant's tenancy is one of a monthly nature and that it can be put an end to by 15 days' notice. There is no cross-appeal against this finding.

4. We think that in some respects the Subordinate Judge is wrong. In the first place, he says that service by registered letter through the post office is not a proper service of the notice to quit under Section 106 of the Transfer of Property Act. We are unable to concur with him in this view. It is true that the second Clause of Section 106 says that the notice under this section must be 'tendered or delivered either personally to the party who is intended to be bound by it, 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.' Now, service of notice by a registered letter through the post office is not necessarily bad, and is not necessarily a non-compliance with the provisions of the second Clause of the section. If there were evidence in this case that the dak peon tendered or delivered the notice either personally to the party, or to one of his family, or to his servant, then we do not see that the service through the post office would not be a sufficient compliance with the provisions of the section, and in support of this view we would cite the case of Rajoni Bibi v. Hafisonnissa Bibi (1900) 4 C.W.N. 572 in which a similar view has been taken by another Division Bench of this Court. In the present case the notice has evidently been served on the defendants Nos. 1 to 3, inasmuch as the receipts for the registered letters have been produced, signed by each of them, and although the dak peon has not been examined, still there Would seem no reason to doubt that the notices were duly served under the provisions of the Act. But it is not necessary for us to come to any finding on this point. It is sufficient for us to say that we do not think that the Subordinate Judge is correct in holding that service of notice to quit by registered letter cannot be a sufficient compliance with the provisions of Section 106.

5. Then, the Subordinate Judge has said that there is not legal evidence that the three copies of the notice served on the three defendants were true copies of the notice filed on the record. We do not know why the Subordinate Judge has come to this conclusion: because there is evidence on the record in the deposition of the Am-Mookhtar of the plaintiff that the copy produced is the notice that was served on the defendants; by which he undoubtedly means that the notices served on them were in the same terms as the document found on the record.

6. A third point is whether the defendants had 15 days' clear notice to quit. The pleader for the appellant maintains that under Section 106, the defendants were entitled to 15 days' notice but not to 15 clear days' notice; and in support of this view he cites the following three English cases: Glassington v. Raulins (1803) 3 East. 406 Castle v. Burditt (1790) D. & E. 628 and Migotti v. Colvill (1879) L.R. 4 C.P.D. 233. The last of these is the case of a prisoner who was held entitled to be released on the 14th day of the period of 14 days' imprisonment to which he had been sentenced. The same rule is observed in this country; but we do not think that the case of a prisoner can throw any light on the provisions of Section 106 of the Transfer to Property Act. Nor do we think that the English oases cited by the learned pleader for the appellant can assist us in any way in interpreting the provisions of that section. In the absence of any Indian authorities to the contrary, we must hold that the 15 days' notice referred to in the section means 15 clear days, and we do not think that the terms of this section have been complied with by the plaintiff. In this case the plaintiff served his notices on the defendants on the 16th Falgoon, and required them to quit the land on the 30th of the same month, so the defendants had only 14 clear days' notice and the notice to quit is bad.

7. On this ground then we must affirm the decree of the Lower Appellate Court. The appeal is accordingly dismissed with costs.


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