Patna High Court
Matadin Sharma vs Upendra Sharma on 4 January, 1972
Equivalent citations: AIR1972PAT292, AIR 1972 PATNA 292
JUDGMENT Sarwar Ali, J.
1. The appellant filed a suit for eviction of the respondent from the suit premises. The suit was decreed by the trial court. The appellate court has dismissed the suit. Hence this second appeal.
2. The plaintiff-appellant claimed that he required the suit premises for his own use, bona fide and in good faith. This has been negatived by the lower appellate court. The plaintiff further claimed that the defendant had made default in payment of rent and, as such, he was entitled to a decree for his eviction, under the provisions of Section II of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The appellate court has found that there was default as claimed by the plaintiff. It, however, dismissed the suit on the ground that the notice under Section 106 of the Transfer of Property Act had not been served in accordance with law.
3. Learned counsel for the appellant contends that the lower appellate court has erred in law in holding that it was for the plaintiff to prove that the notice under Section 106 of the Transfer of Property Act had to be tendered or delivered to a person having authority on behalf of the defendant. Having heard learned counsel for the parties I am of the view that the court below has not correctly appreciated the legal position in regard to notice under Section 106 of the Transfer of Property Act and, in the circumstances, it would be just and proper to remand the case to the lower appellate court after stating what, in my view, is the correct position in law.
4. The relevant portion of Section 106 of the Transfer of Property Act 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, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
We are not concerned here with the tender or delivery personally or at the residence of the defendant nor are we concerned with the affixation of notice on a conspicuous part of the property. What has to be considered is the position when notices are sent under registered post, as is the position in this case.
5. The facts as found by the lower appellate court are that the notice sent by the plaintiff was under registered post and was received by one Deobrat Sharma. It has also found that the plaintiff has not been able to establish that Deobrat Sharma had authority to receive or accept notice on behalf of the defendant. It was of the view that the failure of the plaintiff to prove the authority was fatal so far as the notice under Section 106 of the Transfer of Property Act is concerned. This, as I have already indicated, is not the correct approach in law as will be apparent from later discussion.
6. The amendment in respect of notice under registered post was introduced in Section 106 of the Transfer of Property Act in the year 1929. Before 1929, therefore, there was no specific provision in' the section relating to notice through registered post. Even at that time the Judicial Committee held that if notice to quit was proved to have been put into the post office it would be presumed that the letter had reached its destination at the proper time according to the regular course of business of the post office. It would be useful to quote a few lines from the decision of the Privy Council in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, where Lord Atkinson, after approving the decision of the High Court to the effect that if a letter, properly directed, is proved to have been put into the post office, it is presumed that the letter reaches its destination at the proper time according to the regular course of business of the post office and is received by the persons to whom it is addressed, observed as follows:--
"... .that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself."
It would thus appear that it is not necessary for the plaintiff in the circumstances similar to those which have to be considered in this case, 'to prove that the person receiving the notice has the authority to receive such a notice on behalf of the addressee, in order to avail of the presumption that the letter has reached die addressee.
7. I may now refer to Section 27 of the General Clauses Act which is as follows:--
"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, 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."
It would, therefore, appear that where notice under Section 306 of the Transfer of Property Act is properly addressed and sent by registered post, it would be presumed that the service of the notice has been legally effected. The mere fact that the physical delivery of notice was made to a person other than the addressee would not be of any consequence and would not affect the presumption of proper service. This, however, does not mean that the presumption cannot be rebutted. It is, in my view, possible for the addressee to show that in fact the notice never reached the addressee but the onus to prove the same would be on the addressee. The view I have expressed is fully supported by a Bench decision of the Calcutta High Court in Commr. of Income-tax v. Mulchand Surana, AIR 1956 Cal 537.
8. In this case, therefore, the onus Having been wrongly placed on the plaintiff, the matter has to be remanded and the appeal has to be decided on remand in the light of observations made above. The lower appellate court should decide (a) whether the notice was properly addressed to the defendant, and (b) if it was properly addressed, whether the defendant was able to discharge the onus, which rested upon him, that in fact the notice was not received by him. If the court comes to the conclusion that the notice was not properly addressed, no question of presumption would arise. If, however, it comes to the conclusion that it was properly addressed and then it finds that the onus, which rested upon the defendant, has not been discharged, it should hold that there was proper service of notice as required under Section 106 of the Transfer of Property Act. I would however like, to make it clear that it should not be taken that I have expressed any opinion on the merits of the case.
9. In the result, the judgment and decree of the lower appellate court are set aside and the case is remanded for decision in accordance with law in the light of the observations made above. There will be no order as to costs.