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(C) However, he found that apart from Mote (R6), all the other trustees are residents in the town of Malshiras and that they are not residents of Bhamburdi (Mote Vasti). One Ganpatrao Baburao Waghmode resides in Bhamburdi but not in Mote Vasti;

(D) Mote (R6) was present at Bhamburdi on 28 March 2009. The said Mote (R6) accosted him (the postman) and informed him that he is the chairperson of Malshiras Shikshan Prasarak Mandal (said Trust) and all the addressees are the directors (trustees) of the said trust / institution and therefore, the registered acknowledgment due letters may be handed over to Mote (R6) and he will obtain the signatures of the said trustees on the registered acknowledgment due cards and hand over the same to him (the postman). Bona fide, believing that Mote (R6) would do needful, he (the postman) handed over the envelopes containing the notices of the ACC and the registered acknowledgement due cards to Mote (R6).

(G) That apart from himself, there was no other postman who delivered the letters on the said date at Bhamburdi (Mote Vasti);

(H) That what is stated in the affidavit is true and correct.

15] The sections 114 of the Evidence Act and 27 of the General Clauses Act do raise certain presumptions in the matter of service of notice by registered acknowledgment due. However, before such presumptions are raised, it will have to be established that the notices were addressed to the correct address. In the present case, Mr. Khairdi, learned counsel for the respondents did not even dispute that the existing trustees except Mote (R6) reside in the town of Malshiras, which is at the distance of 3 kms. from Bhamburdi (Mote Vasti). Mr. Khairdi's only submission was that the Trust, apart from operating school in the town of Malshiras, also operates a second school at Bhamburdi and therefore, there was nothing wrong in indicating the changed address as Bhamburdi (Mote Vasti). Such explanation, in the facts and circumstances of the present case, is certainly not acceptable. Mote (R6) despite full knowledge that the existing trustees do not reside at Bhamburdi (Mote Vasti), deliberately furnished such incorrect address to the ACC in order to scuttle effective service of notice upon existing trustees, except himself. In such circumstances, presumptions under section 114 of the Evidence Act and section 27 of the General Clauses Act cannot even be raised, much less, relied upon. That apart, it is settled position that such presumptions are rebuttable. In the present case, the presumptions, if any, stood sufficiently skc JUDGMENT-FA-1346-10 rebutted, not only by the affidavits filed by the existing trustees denying receipt of such notices or denying the signatures on the registered a.d. Cards, but further, by the clear and unambiguous affidavit of the postman Shaukat Jafar Pathan. The postman, has clearly deposed that he never served the notices upon the existing trustees at Bhamburdi (Mote Vasti) or any other place, since the existing trustees did not even reside at Bhamburdi (Mote Vasti). He has deposed that he handed over the envelopes containing notices to none other than Mote (R6) and relied upon Mote (R6), when he stated that he was the chairperson of the trust and he would serve and obtain signatures from the other existing trustees. In the facts and circumstances of the present case, there is no reason to disbelieve such clear and unambiguous statements made by the postman in his affidavit. Significantly, neither Santosh Shinde (R5) nor Mote (R6) chose to either seriously contradict the statements of the existing trustees and the postman or file any independent evidence to the contrary. Santosh Shinde (R5) and Mote (R6) did not even apply to the District Judge for leave to cross-examine the existing trustees or most importantly, the postman - Pathan who filed the affidavit, explaining very clearly the position in the matter of service or rather, non service of notices to the existing trustees. The material on record amply establishes that there was no service of notices upon the existing trustees except Mote (R6) and consequently, there was a breach of the mandatory provisions of section 50A, in the matter of afford of opportunity of hearing to the existing trustees.

17] Thereafter on 28 March 2009, when the postman - Pathan came to deliver the notices to the existing trustees at Bhamburdi (Mote Vasti), Mote (R6) accosted him, informed him that he is the chairperson of the trust and the addresses are only the trustees. Mote (R6) further informed the postman that he will deliver the notices to the existing trustees and obtain their signatures on the registered a.d. Cards. Again on basis of such misrepresentation, Mote (R6) prevailed upon the postman Pathan to hand over the skc JUDGMENT-FA-1346-10 notices to him. Mote (R6) thereafter returned acknowledgement a.d. Cards to the postman Pathan with signatures / endorsements, which, Mote (R6) was aware, were never made by any of the existing trustees.

21] The learned District Judge, in the order dated 17 July 2010, with respect, has dealt with the issue of non service of notices and fraud in a casual and non serious manner. The affidavits filed by the 7 (2000) 3 SCC 581 United India Insurance Co. Ltd. vs. Rajendra Singh.

    8 (2010) 8 SCC 383



     skc                                                                  JUDGMENT-FA-1346-10

existing trustees have not been given their due weight. The affidavit filed by the postman - Pathan has been disbelieved by simply observing 'it requires a big courage which the servants like postman cannot possess in ordinary course.' The learned District Judge has purported to 'read between the lines', as observed by him in paragraph 7 of the order dated 17 July 2010. The learned District Judge has also relied upon certain photographs allegedly depicting the felicitation of the new chairperson in the presence of some earlier trustees. The learned District Judge has also made observations to the effect that there is nothing wrong in converting a public trust into a private trust or a family run trust. All this is quite unsatisfactory. In reading between the lines, it appears that the actual lines have been completely ignored. There was no reason to discard the evidence filed by the existing trustees or the postman - Pathan on basis of surmises, conjectures and even inferences which are far from reasonable. In this case, there was not even a request made on behalf of any of the respondents to either cross-