Gobinda Chandra Shaha And Another v. Dwarka Nath Patita .

This is an appeal on behalf of the Plaintiffs in a suit for ejectment of the Defendant, on the allegation that he held as a tenant of the disputed premises from month to month and had failed to vacate the land in spite of service of notice to quit; the Defendant resisted the claim on the ground that his tenancy had not been validly terminated. The Subordinate Judge has given effect to this contention and has dismissed the suit; on the present appeal, three points have emerged for consideration, namely, first, was the Defendant, as alleged by the Plaintiffs, a tenant from month to month, entitled only to fifteen days' notice to quit; secondly, was the notice in proper form: and, thirdly, was the notice served in accordance with law?

As regards the first question, the case for the Defendant is that he took the premises from the commencement of the Bengali year 1306, that the rent was fixed at Rs. 275 a year and that the period during which the tenancy was to continue was not settled. It is plain that the Defendant became a tenant for one year only, for a rent of Rs. 275; because, under sec. 107 of the Transfer of Property Act which was in force when the tenancy was constituted, a lease of immoveable property from year to year or for any term exceeding one year, or reserving a yearly rent could be made only by a registered instrument. The position, consequently, was that the tenancy would, in ordinary course, expire at the end of the year 1306. The tenant, however, continued in occupation and the landlords accepted rent from him for 1307; in other words, the tenant held over, the legal effect whereof is deducible from sec. 116 of the Transfer of Property Act. That section, we quote only so much of it as is applicable to the present case, is in these terms: “If a lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in sec. 106.” In the case before us, the lease was neither for agricultural nor for manufacturing purposes within the meaning of sec. 106, as the Defendant had taken the property for a stationery shop. The lease was consequently renewed, primâ facie, from month to month. The question next arises, whether there was “an agreement to the contrary” within the meaning of sec. 116. As was pointed cut by Maclean, C.J, in Trailokyanath v. Sarat Chandra(1), the agreement mentioned means an agreement as to the terms of the holding over. Now, there is no proof of an express agreement as to the terms on which the tenant was to hold over. But it is argued that as the rent was originally agreed to be an annual rent, there was an implied agreement that if the tenant held over, he should hold over from year to year. This argument is obviously fallacious. Let us assume that the mode in which the rent is expressed to be reserved, for example at so much a year, affords a presumption that the tenancy is of a character corresponding to it [Wilkinson v. Hall(2)], though it is plain that the rule is not of universal application and the presumption of a yearly taking does not always arise from the rent being payable yearly [Atherstone v. Bostock(3), Wilson v. Abott(4)]. The argument for the Defendant in substance is that the lease was for one year, coupled with an implied agreement that the tenant would hold over from year to year; this, in substance, would be a lease from year to year, which under sec. 107 could not be created except by a registered instrument. In fact, this is an ingenious attempt to substitute for a lease from year to year, a tenancy for one year coupled with an agreement to renew it from year to year [Motilal v. Darjeeling Municipality(5)]. We hold accordingly that there was no “agreement to the contrary” within the meaning of sec. 116, and that after the expiry of the year in which the tenancy took effect, it was renewed from month to month [Debendra Nath v. Shyama Prasanna(6), Durginikarini v. Gobardhan Bose(7)]; under sec. 106, this tenancy was terminable by the lessors by fifteen days' notice expiring with the end of a month of the tenancy.

As regards the second question, two objections have been taken to the form of the notice, namely, first, that the notice, which was dated the 16th Baisakh 1318 and may, for the present purpose, be assumed to have been served on that date, called upon the Defendant to vacate the premises “within” (that is, not later than) the 31st Baisakh 1318; and, secondly, that the notice was signed on behalf of the first Plaintiff by one Bharat Chandra De. These objections are manifestly groundless. A notice served on the 16th Baisakh which calls upon the tenant to quit on the 31st Baisakh (the last day of that month) gives the tenant fifteen days' ??? excluding the day on which the notice is served and expiring with the end of a month of the tenancy. The case of Subadani v. Durga Charan, upon which much stress has been laid by the Defendant, is clearly distinguishable. In that case, the notice was served on the 16th Falgun and required the tenant to quit the land on the 30th Falgun. It was contended on behalf of the landlord that if the day on which the notice was served was taken into account, the tenant had fifteen days' notice. This contention was overruled, and it was held that he had only fourteen clear days' notice, while he was entitled under sec. 106 to fifteen clear days' notice. It is plain that the learned Judges took into account the day on which the notice was to expire and excluded from calculation only the day on which the notice was served. The learned Judges plainly could not have intended to use the expression “clear days” in its technical sense that the time is to be reckoned exclusive of both the first and last days [R. v. Herefordshire(9) and Liffin v. Pitcher(10)]. The judgment, taken as a whole, indicates conclusively that when they laid down that the fifteen days' notice mentioned in sec. 105 meant fifteen clear days' notice, they never intended to hold that, in calculating the fifteen days, the day on which the notice is served, as also the date on which the notice expires, are both to be excluded. This is in accord with what may be taken as the well settled rule on the subject. [Rex v. Grafton(11), Doe v. Matthews(12) and Poole v. Warren(13).] The contention that the notice was not a fifteen days' notice to quit must consequently be overruled. The second objection that the notice was not signed by the first Plaintiff is equally untenable. Sec. 106 requires the notice to be in writing signed by or on behalf of the person giving it. The notice in this case was signed by Bharat Chandra De, am-muktear of the first Plaintiff Hari Dass Shaba. The power-of-attorney has not been produced, but the Defendant admitted that he was the am-muktear. The objection is clearly untenable, as the notice was signed by an authorized agent.

As regards the third question, we have to consider whether the notice was served in accordance with the second paragraph of sec. 106 which provides as follows:—“every notice under this section must be in writing, signed by or on behalf of the person giving it, and 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.” In this case, attempt was made by the Plaintiffs to comply with the requirements of the law by forwarding the notice to the Defendant in a registered cover through the post office. The cover was ultimately returned to the Plaintiffs by the Postal authorities on the allegation that the addressee had refused to accept it. The cover with the notice contained therein has been produced in the course of the trial. There is no oral evidence to show when the cover was posted, nor has the postal peon been examined to prove when and where the cover was tendered to the Defendant. The only oral evidence on the subject is a statement by the agent of the Plaintiff who pledges his oath that he had given notice by a registered cover. The Defendant, on the other hand, asserted in the course of his deposition that the cover in question had never been tendered to him. In these circumstances the question requires consideration, whether the Plaintiffs have proved that the notice was tendered either personally to the Defendant or to one of his family or servants at his residence, at least fifteen days before the expiry of the month of Baisakh, that is, not latex than the 16th Baisakh. The evidence for the determination of this question consists of the envelope and its contents (the notice). The notice, on the face of it, is dated the 16th Baisakh, 1318.

The envelope is addressed to the Defendant: “Dwarkanath Patita, P.O Narayangunj, Bhagwangunj Bazar, Nij Gadi.” In a corner is the following endorsement “from Madangunj, Gobindachandra Shaba” (the second Plaintiff); on the three postage stamps affixed to the envelope, we have what purport to be impressions of the seal of the Madangunj Post Office, each bears date the 29th April 1911, which corresponds to the 16th Baisakh 1318. We have also a very faint and almost illegible impression of the seal of the Narayangunj Post Office, dated the 29th April 1911. We have further an impression of the seal of the Madangunj Post Office, dated the 1st May 1911. In addition, we have two endorsements on the cover in the following terms:—

(1) “This letter returned as the addressee refused to receive it. No. 5, 29-4-1911.”

(2) “Refused and returned to sender, J.C.G 1-5-1911.”

The first of these endorsements is in Bengali and the second is in English. The first point for determination is, when, was the letter posted? There is, as we-have said, no oral evidence on the subject and we are left entirely to the post marks on the envelope. The use of a post mark in evidence involves at least three distinct principles. In the first place, the question arises, may it be inferred from the presence of what purports to be the official mark, that the mark was genuinely affixed by an officer of the post office concerned? This is a question of authentication and may be answered in the affirmative, though there has been some fluctuation of judicial opinion on the subject. In R. v. Johnson(14), an objection to the use of an Irish post mark's evidence of a posting in Ireland, to the effect that “there was no evidence that either of the papers was received from the post office which might have been ascertained by the persons employed in that office,” was not sanctioned. In R. v. Watson(15), a post mark was held not sufficient to show posting at the place named. In Arcangelo v. Thompson(16), a post mark was assumed genuine in proving receipt of a letter in a certain year. In R. v. Plumer(17), post office marks were used to shew that a letter came to a particular office and similarly in Hitchon v. Best(18), a post mark was presumed to be genuine. In Fletcher v. Braddyll(19), a postmistress was called to identify a post mark. In Abbey v. Lyll(20), Gaselee, J., said—“when it is disputed, it ought perhaps to be proved, though what might be deemed to amount to proof is not clear.” In Warren v. Warren(21), the postmaster of one of the offices was called to prove the post mark. In Shiply v. Todhunter(22), and Stocken v. Collen(23), post marks were presumed genuine. But in Wood Cock v. Houldsworth(24), it was said that some witness must prove the post marks. In the United States there are cases in which post marks have been presumed genuine: New Haven v. Mitchell(25); Burgess v. Clark(26). The preponderance of Judicial authority is in favour of the view that what purports to be the impression of a post office seal on an envelope which has been posted may be presumed to be genuine, at any rate, where its genuineness is not expressly questioned.

In the second place, the question arises, whether, if the post mark be taken as genuine, it is evidence that the cover bearing it was stamped on the date the impression bears. The answer has been given in the affirmative. In Canning's Trial(27), a post mark, verified as authentic by the clerk, was admitted to show that the cover passed through the office on the date of the mark. In Fletcher v. Braddyll, a post mark was used to show that the letter existed on-the date thereof. In Abbey v. Lyll, a post mark on the cover was used to show that the enclosed letter was wrongly dated. In Stocken v. Collen, a post mark was used to shew the hour of posting a notice. These cases show that the post mark, when proved or assumed to be genuine, implies an assertion that the date on the mark is the date of affixing it. In the third place, on the same principle the post mark is evidence that the place or office mentioned therein was actually the place, where it was affixed: Canning's Trial; R. v. Johnson. We may consequently inter from the date in the three post marks on the three postage stamps on the cover, that the letter was posted at Madangunj, on the 29th April 1911. It is necessary to rely on the date in the post marks, because the mere fact that the notice is dated the 29th April 1911, does not show that it must have been posted on the same date. As was said in Phelan v. H.W Mutual Life Ins. Co.(28), experience indicates no such uniform connection between the date of a letter and the time of its mailing as to raise an inference that a letter was posted on the day of its date. The next question, which requires consideration, is, when was the cover tendered to the addressee. For this purpose, it would be necessary to know the usual course of mail between the place of posting and the place of receipt, for the inference is that the article posted was delivered in due course of post [Pitts v. Hartford(29)]. We have here no evidence on the subject, and the Court cannot take as matters of public notoriety the running time of trains between two places on a particular day, the number of mail trains within a given time and other like facts; involved in such an enquiry [Wiggins v. Burkham(30)]. We are, therefore, obliged to rely upon the date in me post mark of the Narayangunj Post Office. This shows that the cover reached that office on the very date it was posted at Madangunj, i.e, 29th April 1911; but it does not follow that it was tendered to the addressee on the same date, as was said in Early v. Preston(31), the date of delivery of an article sent by mail cannot necessarily be inferred from the post mark of the receiving office; this observation applies with special force to registered articles which are delivered by the post office only between specified working hours. The Plaintiffs are, consequently, driven to rely upon the vernacular endorsement on the cover, and this leads to the question, whether that endorsement is admissible in evidence. The endorsement is not signed, but it is urged that it must have been made by the peon No. 5 who was probably entrusted with the delivery of the fetter to the addressee. Assume the endorsement to be genuine; but still there remains the question, whether it is admissible in proof of the fact recited therein, namely, that the cover had been tendered to the addressee on the 29th April 1911, and had been refused by him. This plainly is at best a record of a statement by the peon. Such a statement would have been admissible under sec. 32(2) of the Indian Evidence Act, if it had been proved that the peon was dead or could not be found or had become incapable of giving evidence or that his attendance could not be procured without an unreasonable amount of delay or expense. No foundation, however, has been-laid for the reception of the evidence under sec. 32(2). The only other section which deals with statements by persons who cannot be called as witness, namely, sec. 33 has no application. Nor can any assistance be derived from the group of sections relating to statements made under special circumstances. It cannot be argued with any show of reason that the endorsement is admissible, because it is a statement made by a public officer in the discharge of his duty; our attention has not been drawn to any provision of the Indian Evidence Act, which would make a statement admissible ran such a ground, indeed, if such a ground for admission of evidence was recognised, sec. 32(2) would be superfluous. The inference follows, accordingly, that the vernacular endorsement on the cover mentioned above is not admissible in evidence in proof of the allegation that the cover was tendered to and refused by the addressee on the 29th April 1911. But it has been argued that this view is opposed to the decision in Jogendra Chandra v. Dwarkanath(32). That case, however, if it be assumed to have been correctly decided, is clearly distinguishable. There a suit was brought for ejectment of a tenant of an agricultural holding, and the question arose whether the tenancy had been terminated by service of notice to quit. The Plaintiffs alleged that they had sent a notice to the Defendant in a registered cover duly posted, which had been returned to them by the Postal authorities on the allegation that it had been refused by the addressee. The Courts below held that these facts were proved, but it does not transpire from the judgments, on what evidence this conclusion was based; both Courts, however, held that there was no service of notice, as the Defendant had not opened the letter and become acquainted with its contents. The Plaintiffs appealed to this Court on the ground that the bare fact of refusal to take and open the registered cover did not entitle the Defendant to plead non-service of notice. In the course of the argument for the Appellants in this Court, reference was made by their counsel to sec. 16, illus. (b), of the Indian Evidence Act and to the cases of Papillon v. Branton(33), and Lootf Ali v. Pearee Mohun(34); the attention of the Court was also drawn to evidence of service of notice; we have not been able to ascertain what particular evidence of service had been given, as after this lapse of time the record must have been destroyed. On the evidence on the record and on the arguments mentioned, the Court made the following observation: “the service of the notice in another form (that is, other than service by actually handing the notice) was, however, proved, having been effected by a registered letter, the posting of which was proved and which was produced in Court in the cover in which it was despatched, that cover containing the notice, with an endorsement upon it purporting to be by an officer of the post office stating the refusal by the Defendant to receive the document. Upon the cases cited before us, viz., Lootf Ali v. Pearee Mohun, and Papillon v. Branton, and having regard also to sec. 16, illus. (b), of the Evidence Act, we think that only a captious doubt could lead us to regard that service as insufficient.” It has been argued that the learned Judges held solely on what purported to be an endorsement by an officer of the post office that the cover had been tendered to and refused by the addressee. If the learned Judges intended to lay this down as a matter of law, it is worthy of note that the question of the admissibility of the endorsement was not argued before them; if there was evidence to show that the peon was dead or not available, the endorsement might be admissible under sec. 32(2) of the Indian Evidence Act. In the absence of information as to evidence of service of notice to which the attention of the Court was drawn, we are not prepared to treat the decision as a binding authority in support of the proposition that an endorsement of the description now before us is admissible in evidence, though the requisite conditions for admissibility mentioned in sec. 32 have not been fulfilled. We may further point out that the wide interpretation suggested by the Plaintiffs is not justified by the authorities mentioned in the judgment; illustration (b) to sec. 16 is in these terms: “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.” This is very different from the assertion that if the letter is returned with a note thereon by the peon that it had been tendered to and refused by the addressee, the inference follows that it was so actually tendered and refused. The case of Lootf Ali v. Pearee Mohun was decided before the Indian Evidence Act came into force and cannot be treated as an authority on the question of the admissibility of evidence under sec. 32(2); but the facts are so meagrely stated in the judgment that, even treated as such authority, it is quite inconclusive; all that appears is that one of the Plaintiffs sent a notice to the Defendant in a cover, which was refused by the addressee, came back to the hands of the sender and was produced in Court. What evidence there was on the point does not appear, but we have the following observation in another part of the judgment, “that letter was forwarded to him by post duly registered and we must ??? that it was tendered to him; he, therefore, cannot take advantage of his refusal to take it.” The case of Papillon v. Branton was of a very different character. There the tenant posted a notice to the agent of the landlord on the morning of the 25th March 1859. The agent was in his office until 6 or 7 o'clock in the evening; he did not receive the letter, but found it the next morning. The Jury found upon all these circumstances that as the letter had been posted in the morning and had to be carried from Waterloo Place to the Temple, it must have reached the office of the agent the same evening, probably after he had left. An application was made to set aside this verdict, but the Exchanger Chamber declined to grant a rule. This again is clearly a very different case from that of Jogendra Chandra v. Dwarkanath. It may be further observed that in a case under the Transfer of Property Act [Subadani v. Durga Charan], where reference is made to Rajani v. Hafisaunisa(35), it was said that service of notice by a registered letter through the post office is not necessarily a non-compliance with the provisions on sec. 106, if there is evidence that the peon tendered or delivered the notice either personally to the party or to one of his family or to his servant. In both these cases receipts signed by the addressee were produced, and that clearly was sufficient proof of good service. The case of Ismail Khan v. Kali Krishna(36) does not carry the matter further than Jogendra Chandra v. Dwarkanath. Finally the decision in Jogendra Chandra v. Dwarkanath is no authority for the proposition that the cover must be assumed to have been tendered to the addressee on the particular date, if any, which the endorsemen may bear. Neither in Jogendra Chandra v. Dwarkanath, nor in Lootf Ali v. Pearee Mohun, did any question arise as to the particular date on which the notice had been served. On that question no assistance can be derived from the principle embodied in sec. 16 of the Indian Evidence Act, namely, that when there it 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. In the case before us, the Plaintiffs can succeed only upon proof that on the 29th April 1911, the cover was tendered either personally to the Defendant or to one of his family or servants at his residence and was refused by the Defendant. The vernacular endorsement is not admissible for this purpose and cannot be treated as evidence of the events recited therein. Nor would sec. 114 of the Indian Evidence Act and illustration (f) thereto, which are mentioned in the case of Mir Tapaura Hossain v. Gopi Narayan(37), be sufficient to remove the difficulty in the way of the Plaintiffs; even if we presume it as likely that the cover was tendered to the addressee, we cannot assume that it was so tendered on the 29th April 1911, yet such assumption is essential for the success of the Plaintiffs. Proof of the fact that a letter correctly addressed has been posted and has not been received back through the Dead Letter Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the Postal authorities does not justify the presumption that it has been so returned because it has been refused by the addressee, for it may well be that it has been returned because the addressee has not been found; much less is there a presumption that the cover has been tendered to the addressee on a particular date. We may further point out that the presumption mentioned in sec. 114 is not a presumption of law but a presumption of fact, and where, as in this case, the Defendant pledges his oath that the cover was never tendered to him, we cannot treat the presumption of regularity of official business as conclusive against him. We have finally the not unimportant fact that the cover was addressed to the Defendant at his gadi or place of business; there is nothing to show that was his residence within the meaning of sec. 106. We are, consequently, of opinion that the Plaintiffs have failed to prove that the notice was duly served on the Defendant.

The result is that the decree of the Subordinate Judge is confirmed and this appeal dismissed with costs.

Appeal dismissed.