A.E.K Kaliappa Nadar v. V.K.R Amirthavalavandammal And Another.

(Reference to the Bench by Kailasam J. dated 23-11-1971).

1. The question that arises for consideration is whether a returned registered letter with the endorsement “not found” is sufficient notice. In this case, notice was sent by registered post and the notice was returned with the endorsement ‘absent and not found’. From the endorsement it appears that for six days from 3rd July 1967 to 8th July 1987 it was sought to be delivered and finally, after keeping it in deposit for a week, it was sent back to the sender on 15th July 1967. The lower court found that there was evidence to show that the respondent avoided the service of notice. I am unable to agree with this conclusion as there is hardly any evidence to show that the tenant avoided the receipt of notice. The plea that the respondent has not repudiated the statement, or denied the allegation of evasion of notice is not conclusive, as the tenant has stated that he never received the notice. So, the facts are that the notice was sent by registered post and it was returned an endorsement that the addressee was not found.

2. S. 106 of the T.P Act (second paragraph) provides:—

“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 to 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”.

This Section, therefore, contemplates several methods of service. One such method is to send a notice in writing Signed by or on behalf of the person giving it and send it by post to the party who is intended to be bound by it. S. 27 of the General Clauses Act (Act 10 of 1897) provides that where any Central Act 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. The requirements of these Sections will be met if a notice in writing signed by or on behalf of the person giving it is sent by registered post. In such an event, the service shall be deemed to have been effected unless the contrary is proved. The burden of proving the contrary is on the tenant and it is doubtful whether it can be fulfilled by the tenant proving that the registered letter was returned with the endorsement ‘not found’ though the requirement is met when once it is properly addressed and sent by registered post. That is also the requirement of S. 106. It states that when a notice is sent by post to the party who is bound by it, it is not required that it should be proved that it had been served on the tenant. In this view, I feel the decision of a single Judge of this court in Doraipandia Pillai v. Sivagnanam Pillai . 1970 2 M.L.J 242. requires reconsideration.

3. In the circumstances, the matter will be placed before a Bench for an authoritative pronouncement.

(Pursuant to the aforesaid order this petition coming on for hearing this day the Court delivered the following Judgment):—

The Chief Justice: 1. The matter comes up before us on a reference by Kailasam, J. The petitioner is the tenant and the proceeding related to eviction. The point before Kailasam, J. turned on whether the petitioner was served with sufficient notice. It is on record that a registered letter was sent by the landlord to the tenant at his correct address. The letter was, however, returned with the endorsement ‘not found’. The postman, it is made to appear by the endorsement, called at the petitioner's residence thrice and every time he was not found. The first appellate court found that, since the landlord had taken notice to the proper address, it would follow that a valid notice to quit had been served. The Additional District Judge, in disposing of the revision under S. 25 of the Tamil Nadu Buildings (Cease and Rent Control) Act accepted that finding but gave additional reasons in support of the finding. He said that although the landlord had stated in the petition for eviction that a notice had been sent to the tenant on a stated date, the tenant wantonly evaded to receive the notice and that the notice was returned to him as the respondent not found, the tenant had not repudiated this statement. The Additional District Judge also noted that the address on the letter was correct, and that further it was not denied before him that the tenant was a business man carrying on business every day. He, therefore, thought that it was difficult for him to believe that there was no tender of notice. When the matter was brought by the tenant to this court, Kailasam J. was not prepared to agree with the conclusion that the tenant had evaded serving of notice. He also felt that the plea that the tenant had not repudiated the statement we referred to earlier or denied the allegation of evasion of notice, was not, conclusive that the tenant had evaded service. He referred to S. 106 of the Transfer of Property Act and the methods of service contemplated by that Section and then S. 27 of the General Clauses Act. He observed that the requirements of the Section as would be met if a notice signed by or on behalf of the person giving it was sent by registered post, and that, in such an event, the service would be deemed to have been effected unless the contrary was proved. The learned Judge did not agree with the view of Natesan, J. in Doraipandia Pillai v. Sivagnanam Pillai and referred the matter for disposal by a Division Bench.

2. In our view, having regard to the facts in this case, the tenant must be taken to have had notice of the proceeding. We agree that when once one of the methods contemplated by S. 106 of the Transfer of Property Act, namely, sending the notice by post to the correct address of the tenant by the landlord, is adopted, a presumption follows not merely with reference to S. 27 of the General Clauses Act but also S. 114 of the Evidence Act that it had reached the addressee. But the presumption is a rebuttable one and it may be shown by the tenant that he had actually no notice of it. Natesan, J. in Doraipandia Pillai v. Sivagnanam Pillai on the facts in that case, thought that, as the endorsement on the returned letter was ‘not found’, no presumption could be drawn that the letter had reached the addressee. In that case, there was no suggestion that the tenant, knowing that a notice to quit was intended to be served on him, manouerred in league with the postal peon to secure a false return. That is the position in this case too. But the point is that, in this case, the first appellate court found that there was notice to the tenant and the Additional District Judge sitting in revision accepted that finding, and, in fact, he reinforced it by referring to certain other circumstances. Even assuming that the first appellate court was not on firm ground in inferring service of notice from the fact that the letter contained proper address, we think that the finding accepted by the Additional District Judge is not open to question. He referred to certain other circumstances, namely, that not only the letter contained the proper address but also the addressee was a business man carrying on business every day, and said that, in view of these it was unlikely that the addressee should not have known about the letter. That was a factual inference which the Additional District Judge could properly draw from the circumstances. We do not wish him to lay down as an inflexible rule that, wherever 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’. But, when the Additional District Judge referred to certain circumstance which were relevant and tried to draw an inference justifiable from them, the finding so arrived at is one of fact and that should be taken to be conclusive in a revision petition under S. 115, C.P.C

3. As we pointedout, the first appellate court, the Additional District Judge and Kailasam, J. each felt that there was notice to the tenant and that is what we feel too, though the reasons in each case may differ.

4. On that view, the petition is dismissed with costs. Two months to vacate.

V.C.S