Shyam Narayan Sah v. Raghunath Prasad — 1976 DIGILAW 217 (PAT)

Judgment 1. This second appeal is by the plaintiff-landlord from a decree dated May 22, 1976, passed by the Additional Subordinate Judge III, Patna. The suit was for eviction and for arrears of rent. The defendant-respondent had taken Gola shop on rent for carrying on grain business on a monthly rental of Rs. 71/- He was a habitual defaulter in payment of rent. He never paid rent in time. He wilfully defaulted in payment of rent from July 1969 up-to-date. The plaintiff further alleged that he needed the Gola shop for his own use, but that plea of personal necessity has been rejected by both the courts below. However, the Munsif decreed the suit on 30th September. 1975, on the ground of default in payment of rent. On appeal by the defendant, the Addl. Subordinate Judge allowed the appeal and dismissed the suit. The present appeal is against this decision. 2. The only point in this appeal is whether the provisions of Sec.106 of the Transfer of Property Act were complied with. The relevant facts for determining this point are these: A notice dated 4th October, 1969, was sent by post by the plaintiff-landlord to the defendant terminating his tenancy and calling upon him to vacate the house by the end of October, 1969. This notice could not be served and was returned unserved with a remark that the defendant was out of Patna, on 16-10-1969. Notice was again taken out on 30th October, 1969. terminating the tenancy on the expiry of the 30th November, 1969 and celling upon the tenant to quit the house, but this second notice also could not be served and it came back with the peons endorsement "refused, 18/11." Then recourse was taken by the landlord to give notice to the tenant by adopting the method of phonogram. The lawyer for the landlord conveyed the contents of the notice through that method on November, 12 1969 terminating the tenancy on the expiry of 30th November, 1969 and calling upon the defendant-tenant to vacate the premises by that time. Thereafter, the present ejectment suit was instituted. 3. The lawyer for the landlord conveyed the contents of the notice through that method on November, 12 1969 terminating the tenancy on the expiry of 30th November, 1969 and calling upon the defendant-tenant to vacate the premises by that time. Thereafter, the present ejectment suit was instituted. 3. It is contended on behalf of the landlord appellant that in the present case it should be held that there was proper and sufficient service of notice under Sec.106 of the Transfer of Property Act in view of the provisions of Sec.27, General Clauses Act, Sec.16 Illustration (b) of the Evidence Act and Illustration (f) of Sec.114 of the same Act. The main section, however, is Sec.27 of the General Clauses Act. That section runs as under: "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." I think, it will be useful to read the other "two sections of the Evidence Act as well to which I have referred above. Illustration (b) of Sec.16 of the Evidence Act reads thus: "The question is whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead letter Office, are relevant." Illustration (f) of Sec.114 of the Evidence Act runs as follows: "The Court may presume that the common course of business has been followed in particular course." Now under Sec.27, General Clauses Act, 1897 the service of the notice to quit shall be deemed to be effected by properly addressing, pro-paying and posting by registered post, a letter containing the document end 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. As observed in Sushil Kumar Chakravarty V/s. Ganesh Chandra Mitra, AIR 1958 Cal 251 = (62 Cal WN 193) this "deeming" has been held to amount to a presumption which unless rebutted would prove the fact of service. Even if, therefore, the actual refusal by the addressee is not proved, service of notice may well be held to be proved. In the present case, however, the actual fact of refusal by the addressee is shown by the endorsement appearing on the envelope. The endorsement is "refused, 18/11." The peon was also examined in this case. .Under the circumstances, it will not be right to hold that the service of notice was on an earlier date than on 18-11-1969. The aid of that section, in my opinion, in the matter of service of notice at the proper time in the ordinary course of post should be taken when the letter containing the document is returned unserved and other things are not known. As already said there is the evidence of endorsement made by the peon in the present case. Even in absence of the postal peons evidence a court can hold on the basis of the endorsement that the service has been refused. Under Illustration (f) of Sec.114 of the Evidence Act the presumption of fact is that the common course of business has been followed in the particular case and the court is entitled to hold that the postal peon did go to the addressee and the return of the envelope was due to the reason that the addressee refused it. Under the circumstances the court is entitled to hold unless the contrary is proved, that the endorsement "refused" was made by the peon himself and that it was correctly made. In the case of Sushil Kumar Chakravarty (Supra) it was further pointed out that apart from this, the presumption mentioned in Illustration (e) of Sec.114 of the Evidence Act is also of great assistance. All that happens in the post office from the time of posting of a letter to the point of delivery to the addressee or return to the sender are official acts. As the law entitles the court to presume that official acts have been regularly performed, the court is entitled to hold that the endorsement was made by the peon and it was correctly made. As the law entitles the court to presume that official acts have been regularly performed, the court is entitled to hold that the endorsement was made by the peon and it was correctly made. These two different presumptions, one as mentioned in Illustration (f) and the other mentioned in Illustration (e) of Sec.114 of the Evidence Act can be raised with regard to the endorsement made by the peon. The most authoritative decision about the above presumption, namely, the fact of presentation to the proper addressee and the making of true endorsement is the decision of Rankin, C. J. and Pearson, J. In the case of Hari Pada Dutta V/s. Jai Gopal Mukherjee, (1935) 39 Cal WN 934. Where it was held that if a registered letter came back with an endorsement of refusal, that, in itself, until explained, was prima facie sufficient evidence that the addressee had an opportunity to accent it. There is also a very old decision in the case of Loolf All Meah V/s. Pearee Mohan Roy, (1871) 16 Suth WR 223, where the same principle was laid down and it was held that where there was evidence that a letter had been forwarded to the addressee by post duly registered, it was to be presumed that it had been tendered to him and that the addressee could not take advantage of his own refusal to take it. In Sarkar Estate (Pvt.) Ltd. V/s. Kusumika Iron Works (Pvt) Ltd., ( AIR 1961 Cal 439 ) it was held that a tender by a registered letter which is refused by the addressee is as good a delivery as a letter which is accepted and the refusal precludes the addressee from pleading ignorance of its contents. In Ganga Ram V/s. Phulwari, AIR 1970 All 446 (FB) also, the notice had been received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take notice on a particular day. In that case no evidence had been led by the plaintiff to show that the endorsement had been made by the postmen concerned. It was held that even in the absence of such evidence a presumption of due service could be made under Sec.114 of the Evidence Act and the postman need not be examined to prove the endorsement. In the case of Balbhadra Mal V/s. Commr. It was held that even in the absence of such evidence a presumption of due service could be made under Sec.114 of the Evidence Act and the postman need not be examined to prove the endorsement. In the case of Balbhadra Mal V/s. Commr. of Income-tax (AIR 1957 Punj 284) the view taken was that where a notice under Sec.106 of the Transfer of Property Act was received back by the sender with an endorsement "refused" the presumption of service can be drawn both under Sec.27 of the General Clauses Act and Sec.114 of the Indian Evidence Act. There are also several other cases where the letter came back with an endorsement by the postal peon that the addressee had refused to take delivery and in which it was held that there was a valid service. All these cases go to show that notice sent by registered post but refused by the addressee is a valid service on the person who refused to accept the delivery of the registered letter. Having regard to the principles laid down in the aforesaid cases it must be held that the court of appeal below was right in holding that the registered notice to quit dated 30th October, 1969 was served upon the defendant on 18-11-1969. 4. Learned counsel, however, drew my attention to the last portion of Sec.27, General Clauses Act which lays down that unless the contrary is proved, service, shall be deemed to have been effected at the time the letter would be delivered in the ordinary course of post. Under this part of the Section the court is entitled to make presumption with regard to the time of service. He further submitted that even under Illustrations (e) and (f) of Sec.114 of the Evidence Act if a letter properly directed containing a notice to quit is proved to have been put into the post office, it will be presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. As a proposition it cannot be disputed that it is reasonably expected that in the normal course the letter would be delivered to the addressee. As a proposition it cannot be disputed that it is reasonably expected that in the normal course the letter would be delivered to the addressee. Under Sec.16 of the Evidence Act, the existence of any course of business according to which it naturally would have been done is a relevant fact. That Section reads as below: "When there is a question whether a particular act was done, the existence of any course of business according to which it naturally would have been done, is a relevant fact. Illustrations. (a) The question is whether a particular letter was despatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant. (b) The question is, whether a particular letter reached. The facts that it was posted in due course, and was not returned through the Dead-letter office are relevant." The Central fact, however, to be noticed is that both the presumptions namely, the presumption of law under Sec.27 of the General Clauses Act and the presumption of fact under Sec.114 of the Evidence Act are rebuttable. The Statute has not made any of the presumption unrebuttable. In Sec.27 of the General Clauses Act the words unless the contrary is proved" indicate that the time at which the letter is reasonably expected to be delivered in the normal course may be proved to be quite different. The letter may not reach the addressee in normal course. In the present case the endorsement of refusal made by the postal peon is dated 18-11. I have already said that the fact of presentation to the proper addressee and the making of a true endorsement will be presumed under Illustrations (e) and (f) of Sec.114 of the Evidence Act. The lower appellate court was, therefore, right in observing that the registered notice dated 30-11-1969 was not served on the tenant giving a margin of 15 days for determining the tenancy. The lower appellate court was, therefore, right in observing that the registered notice dated 30-11-1969 was not served on the tenant giving a margin of 15 days for determining the tenancy. Neither in the Calcutta case ( AIR 1958 Cal 251 ) nor in the Allahabad case ( AIR 1970 All 446 ) (FB) on which great reliance was placed by the appellant, it was held that a different date of service shall be presumed even if there be endorsement on the cover to the effect that the refusal was on a particular day. When there is endorsement of the postal peon that it was refused on a particular day, the presumption of correctness would arise in respect of the date also. There is, thus, no force in the contention that the registered notice to quit under Sec.106 of the Transfer of Property Act dated October 30, 1969, was served in law on the tenant earlier than 18-11-1969 in normal course and at the proper time. In my opinion, therefore, the date of serving must be taken to be the 18th November, 1969. The registered notice dated 30-10-1969, therefore, was invalid for the purposes of ejectment. 5. The second branch of his argument is that the notice conveyed through phonogram by the advocate of the plaintiff which was delivered to the defendant on November 12, 1969, should be treated as a notice in writing signed by the Advocate on behalf of the landlord as required by Sec.106 of the Transfer of Property Act and as having terminated that tenancy on the expiry of 30th November, 1969. The office copy of the phonogram in carbon copy is Ext. 6 dated 12-11-1969. On it appears the name of Ramanand Tiwary, Advocate, on behalf of the plaintiff. The. process of phonogram was explained by P. W. 6 Baleshwar Singh, an employee of the postal Department. According to him, in a message to be conveyed by phonogram the subscriber of the telephone conveys the message verbally on phone to the Telegraph Department end the office prepares two copies of the message. The message is conveyed to the addressee by phone and subsequently a copy of the message is sent by way of confirmation. At this place the relevant portion of Sec.106 of the Transfer of Property Act may be quoted. The message is conveyed to the addressee by phone and subsequently a copy of the message is sent by way of confirmation. At this place the relevant portion of Sec.106 of the Transfer of Property Act may be quoted. It runs as below: "Duration of certain leases in absence of written contract or local usage. - In the absence of a contract or local law or usage to the contrary a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease, by six months notice expiring with the end of a year of tenancy and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. 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." Admittedly the phonogram is in writing. The question at once arises as to whether it has been signed by the Advocate. Ramanand Tiwary. His name, no doubt, has been written by the telegraph office on it, but does it amount to "Signature", Can it be said that it was signed by the Advocate on behalf of the landlord within the meaning of Sec.106 of the Transfer of Property Act. In my opinion, the answer must be in the negative. As provided in Section 88 of the Evidence Act, there cannot be any presumption as to the person by whom the message was delivered for transmission. In my opinion, the answer must be in the negative. As provided in Section 88 of the Evidence Act, there cannot be any presumption as to the person by whom the message was delivered for transmission. Section 88 of the Evidence Act runs as follows:- "The Court may presume that message forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom such message was delivered for transmission." 6 On a perusal of these provisions it is clear that the court shall not make any presumption as to the person by whom such message was delivered for transmission. If so, the appearance of the name of the Advocate on the phonogram loses importance. Learned counsel for the appellant has, however, argued that proof is not shut out. Even if it be assumed that the message was sent by the Advocate, still it is not possible to hold that it was signed by the Advocate. Signing means the writing of a persons name by himself or by his authority with the object of authenticating a document as being that of a person whose name is to be written. The definition of the word "sign" in Sec.3 (56) of the General Clauses Act is as under." ""Sign" with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include "mark" with its grammatical variations and cognate expressions." This definition is neither exhaustive nor complete. It simply says what the word "sign" shall include the affixing of mark. It is not helpful in deciding the issue involved in this case. In order to clearly understand the concept underlying the word "sign" I would like to refer to some cases. In Smt. Sandhya Devi V/s. The State Transport Appellate Tribunal, AIR 1976 Pat 234 the following observation occurs: "On the basis of the authorities mentioned above, it can be safely said as a proposition of law where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising him." The case of Whitley Partners Limited (1886) 32 Ch D 337 was noticed in the aforesaid Patna Case. In that case Cotton, L, J., held that there being nothing in the Companies Act, 1862, to show that the legislature intended anything special as to the mode of signature of the memorandum the ordinary rule applied that signature by an agent is sufficient. "The following observation of Blackburn, J., in the Queen V/s. The Justices of Kent, (1873) 8 QB 305 at p. 307 = (42 LJMC 112) are also relevant to show that an authorised person can sign for the person authorising; "No doubt at common law, where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it; nevertheless there should be cases in which a statute may require personal signature." In the present case the statute itself, namely, Sec.106 of the Transfer of Property Act authorises another person to sign the notice on behalf of the landlord. It appears to me that the provisions of Sec.106 of the Transfer of Property Act regarding the signature on the notice are based on the common law rule; Qui facit per alium facit per se (he who acts through another is deemed to act in person). In view of these circumstances if it is held that in law the Advocate signed the phonogram, the notice would undoubtedly be a valid notice to quit because under the express provisions of law as well as under the common law rule any other person can sign the notice on behalf of the landlord. 7. The learned counsel for the appellant has cited the case of M/s. Hindustan Construction Co. Ltd. V/s. The Union of India, AIR 1967 SC 526 for explaining the meaning of the word "Sign". At page 527 of this case the following observation occurs: "This brings us to the meaning of the word "Sign" as used in the expression signed copy. In Websters New World Dictionary the word "sign" means to write ones name on, as in acknowledging authorship authorising action, etc. To write ones name is signature. Sec.3 (56) of the General Clauses Act No. 10 of 1897, has not defined the word "sign" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing ones name on some document or paper. Sec.3 (56) of the General Clauses Act No. 10 of 1897, has not defined the word "sign" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing ones name on some document or paper. In Mohesh Lal V/s. Basunt Kumaree, (1881) ILR 6 Cal 340, a question arose as to what signature meant in connection with Sec.20 of the Limitation Act No. IX of 1871. It was observed that "where a party to contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs." In that case the question was as to whether a signed copy of the award had been filed in court by the umpire as required by Sec.14 (2) of the Arbitration Act, 1940. It appears that a copy of the award had in fact been duly signed and certified by the umpire after putting down the words "certified to be true copy". It was, therefore, held that it was a signed copy. The point has, thus, no force and the Supreme Court case is not of any assistance to the plaintiff-appellant. In the course of a fair, lucid and attractive argument the learned counsel also referred to several paragraphs (paragraphs 1027, 1028, 1029 and 1030) of Taylor on Evidence and contended that a telegraphic message bearing the name is sufficient. Learned counsel pointed out that even a printed signature is enough. I am not prepared to accept this contention as valid. In my opinion, the provision of Sec.106 of the Transfer of Property Act contemplates that there must be physical contact between the person and the signature or mark put on the document. In the present case there was no such physical contact between the Advocate and his so-called signature appearing on the phonogram. In my opinion, the provision of Sec.106 of the Transfer of Property Act contemplates that there must be physical contact between the person and the signature or mark put on the document. In the present case there was no such physical contact between the Advocate and his so-called signature appearing on the phonogram. His name was put upon the document not by himself but by some one else, viz., an employee of the Telegraph Office. The Telegraph Office was not writing and signing for the landlord but it was doing so for the Advocate. The notice under Sec. 106 of the Transfer of Property Act should have been signed, whosoever signed on behalf of the landlord. That was not done. The phonogram was signed by some one of the Telegraph Office on behalf of the Advocate and not on behalf of the landlord or under his authority. In Hiralal V/s. Deputy Commissioner, Bareli, ( AIR 1951 All 483 ) it was observed that a signature is the writing of a persons name or a mark to represent his name by himself or by his authority for the purposes of and with the intention of authenticating a document. In that case the notice which was sent to the tenant was a typed copy of the original notice in manuscript with the name of the landlord typed at the end of it. It was held that the notice did not comply with the mandatory provisions of Sec.106 of the Transfer of Property Act and was invalid. This authority, in my opinion, is against the plaintiff. 8 After considering the submissions raised on behalf of the parties and giving due weight to them my concluded opinion is that the notice under Sec.106 of the Transfer of Property Act must be signed by or on behalf of the person giving it in the sense that there must be physical contact between such person and his signature or mark on it and such not being the case here, it must be held that the notice under Sec.106 of the Transfer of Property Act was invalid for non-compliance with the provisions of Sec.1. I am, therefore, of the opinion that the decision of the Additional Subordinate Judge, 3rd Court, Patna, is correct and the suit was rightly dismissed. 9. I accordingly dismiss the appeal. The decree of the Court of appeal below shall stand. I am, therefore, of the opinion that the decision of the Additional Subordinate Judge, 3rd Court, Patna, is correct and the suit was rightly dismissed. 9. I accordingly dismiss the appeal. The decree of the Court of appeal below shall stand. There shall be no order for costs against the appellant.