Pt. Lila Dhar Pandey And Another v. L. Ramji Dass And Another

Upadhya, J.:— This is a defendants' appeal arising out of a suit for ejectment. The defence was that notices under Sec. 106 of the Transfer of Property Act and Sec. 3 of the Rent Control and Eviction Act were not served on the defendants and that they were invalid and that the plaintiff was not entitled to sue. The trial court after going through the evidence found the issues against the defendants and decreed the suit for arrears of rent and for ejectment. On appeal by the plaintiff the decision of the trial court was affirmed by the lower appellate court.

2. The points raised in this appeal are (i) that the notice under Sec. 106 of the Transfer of Property Act was not served on two out of three defendants and (ii) that no notice of demand within the meaning of Sec. 3 of the Rent Control and Eviction Act was served on Lila Dhar and Radhey Shyam and they, therefore, could not be said to have committed any default or be liable to ejectment. It appears that notices were separately sent under Sec. 106 of the Transfer of Property Act terminating the tenancy and demanding the arrears of rent that had fallen due. Both these notices were served on one of the three defendants, Ram Chandra. It is admitted that only one copy of each notice was issued by the plaintiff. These notices were addressed to all three persons and were sent by registered post. Learned counsel for the appellants argues that no notice having been served on Lila Dhar and Radhey Shyam their tenancy could not be held to have been terminated within the meaning of Sec. 106 of the Transfer of Property Act. No notice of demand having been served on these two persons, as required by Sec. 3 of the Rent Control and Eviction Act, learned counsel contends that these two persons could not be said to be in default.

3. All the three defendants are brothers. The rent note dated the 16th April, 1947 (Ex. 5) was executed by Lila Dhar stating that he was executing the document for himself and as Karkun of Ram Chandra and as the guardian and sarparast of Radhey Shyam. It is admitted that these three brothers have to remain out of Muzaffarnagar probably because of their employment. Lila Dhar appears to be at Haldwani, Radhey Shyam at Hardwar and Ram Chandra at Delhi, but it is admitted that the mother and the other members of the family reside in the house in dispute at Muzaffarnagar. The house was taken jointly by them and the question that now arises is as to whether on the facts and circumstances of the case the two notices addressed to all these three persons and served on one of them could be said to be not properly served in law. Sec. 106 of the Transfer of Property Act as it stood on the relevant date reads as follows:—

“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 from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the 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.

4. 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 found 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.”

5. Service should be made either by post on the party who is intended to be bound by the notice or it may be tendered or delivered personally to such party or to one of his family or servants at his residence. From the recital in Exhibit 5 and from the fact that the three defendants are brothers it appears that they are members of a Hindu family. It is contended that service on one of them of a notice addressed to all of them is proper service within the meaning of Sec. 106 of the Transfer of Property Act. The lower appellate court has relied on a decision of the Privy Council in the case of Harihar Banerji v. Ramshashi Roy A.I.R 1918 P.C 102.. At page 110 of the report Lord Atkinson is reported to have observed as follows:—

“Well in the case of joint tenants, each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants.”

6. This was a case where their Lordships of the Judicial Committee had to consider the provisions of the Transfer of Property Act and to pronounce on the validity of the service of a notice under Sec. 106 of that Act on one of several joint tenants. In the case before their Lordships, notices had been addressed separately to all the tenants but it was found that some of them had not been served with the notice. Discussing the facts of the case their Lordships found that the rule enunciated in the above observation could be made applicable to the facts of the case. Their Lordships observed:—

“In their Lordships view the evidence of delivery of the notices to quit to all the principal defendants was, under these circumstances, adequately and sufficiently proved, and constituted good service of them within the meaning of Sec. 106 of “The Transfer of Property Act, 1882.”

7. The other case mentioned by the lower appellate court in its order is one decided by the Nagpur High Court—Mohanlal v. Governor-general in Council A.I.R 1945 Nag. 255.. A lease taken from the Cantonment authority was sought to be determined in that case by a notice addressed to the two lessees but served on only one of them. The observation made in the Privy Council case mentioned above was relied upon by the learned Judges who heard this case at Nagpur. But they also relied upon the provisions of Sec. 254(2)(a) of the Cantonments Act, 1924, which lays down that when a notice is required to be served on the lessee of the land service shall be effected in the case of land of which there are more lessees than one by giving or tendering notice to any one of them. In the present case it is urged that there is no such provision under the Transfer of Property Act and if the lease was held by more persons than one it was essential that each one of them should have been served with a notice to quit. Learned counsel for the appellants referred me to a cose decided by a Bench of the Calcutta High Court in Bejoy Chand Mahatab v. Kali Prasanna Seal A.I.R 1925 Cal. 752.. The Bench took the view ‘It is necessary in order to bind even a joint tenant that the notice must be addressed to and served on him in one of the ways mentioned in the second clause of that section. It should be addressed to him and may be served either on him personally or on one of the family or servants or affixed to a conspicuous part of the property’. In the case before their Lordships the defendant no. 9 had not been served with a notice to quit though the other joint tenants had received such notices. In fact no notice was addressed to him at all. When defendant no. 9 was sought to be ejected and was impleaded in the suit for ejectmeint he took the defence that he had not been given any notice and was not liable to ejectment and the notices served on the other joint tenants were in law no notice to him. The learned Judges observed:—

“It is difficult to hold that a person whose tenancy or existence is ignored and not recognised, as was Defendant no. 9 in the present case, is a “party intended to be bound” by the notice under Sec. 106 of the Transfer of Property Act”.

8. Learned counsel for the respondents has invited my attention to a subsequent decision of the Calcutta High Court in the case of Bodardoja v. Ajijuddin Sircar A.I.R 1929 Cal. 651. where a Bench after restating the rule laid down by the Privy Council in the case mentioned above and the decision of this court in 1925 Calcutta, 752 observed that in the case of joint tenants service of notice to quite upon one joint tenant is prima facie evidence of service of notice on the other joint tenants. This observation was evidently the same as that made by the Privy Council. Referring to the earlier Calcutta case the learned Judges observed that in that case the notice in question was not addressed to all the joint tenants and the tenants whose names were not mentioned in the notice could properly object to its validity on the ground that it was not intended to be a notice to terminate their tenancy at all. The learned Judges distinguished the earlier Calcutta case on that ground and said that in the case before them the notices that were issued were addressed to all the joint tenants and therefore if some of the joint tenants were not served with the notices they would be prima facie held to have received a notice as held by the Privy Council. In the second Calcutta case the notices were addressed to all the joint tenants and were sent by registered post. The notices were served on several of the defendants but two of them Emajuddin and Foijannessa were not served properly. The notice addressed to Emajuddin was sent by registered post and an acknowledgment purporting to have been signed by Emajuddin had been received and produced in the case. The other notice addressed to Foijannessa was also sent by registered post and was served on one Noshan Ali who was examined in the case and who stated that he had forgotten to make over the notice to Foijannessa. The notices that were sent in that case were addressed to all the joint tenants as in the case now before me and copies of such notices were alleged to have been served on the joint tenants. The learned Judges relying on the dictum of the Privy Council held that where notice is served on the other joint tenants it would be prima facie supposed to have reached the joint tenants who was not separately served. Learned counsel for the respondents has argued that the latter Calcutta case was more applicable to the facts of the present case and the facts of the case were also similar to the Nagpur case. In both these cases it is urged that the notices were addressed to all the joint tenants and if a particular tenant did not happen to receive it the fact that the notice so addressed was served on the other joint tenants or tenant would prima facie be evidence of the fact that the notice had reached the tenant who was not actually served. An earlier decision of the same Court in Rajoni Bibi v. Hafisoonnissa Bibi 1900 4 C.W.N 572. was cited before the learned Judges who decided the case reported in A.I.R 1925 Calcutta 752. In that case a notice containing the names of all the joint tenants was delivered to one of the defendants and the objection taken was that there ought to have been as many copies of the notices as there were tenants. This objection was overruled in the view that the notice was addressed to and contained the names of all the tenants, though it was served on one of them. The learned Judges did not express any doubt as to the correctness of that decision. They appear to have taken the view that in the case before them the name of defendant no. 9 not having been mentioned in the notice at all the rule enunciated in the earlier case could not be applied.

9. I have been taken through the decision of the Judicial Commissioner at Ajmer in Balu Ram v. Bhag Chand,6. In that case two persons Jangi Lal and Kaluram had taken the premises in suit on rent. Notices were sent by the landlord to each of them separately and while it was served on one of them, it could not be served on the other. The learned Judicial Commissioner took the view that even though the two persons were tenants the tenancy was not validly terminated because notices to quit were not served on both the tenants. In this case it appears that the notices which were sent were addressed separately to each of the two tenants. It was not a case of a joint notice addressed to both the persons but served on one only. The attention of the learned Judicial Commissioner was invited to the decision by Calcutta High Court in 1925 Cal. 752 and he held in the circumstances before him that the notice could not be taken as served on both the joint tenants. His attention was not invited to the later decision of the Calcutta High Court in 1928, or to the decision of the Privy Council in 1918 mentioned above.

10. In the present case the notice in question was addressed to all the three brothers but it was served on one of them only. The facts appear to be similar to the facts of the case in Rajoni Bibi v. Hafisoonnissa Bibi. It is not possible to say why the rule laid down by the Privy Council in 1918 P.C page 102 should not be followed. That decision has been followed by a Bench of the Bombay High Court in V.V Kulkarni v. Khanderao Ram Rao Sholapurkar A.I.R 1935 Bom. 247. and by a Bench of the Calcutta High Court in Bodardoja v. Ajijuddin Sirkar.

11. The reason on which the rule enunciated by the Privy Council is based, I must confess with great respect, is not very clear to me. If in the case of joint lessees there is some presumption of agency inter se it has to be considered as to how far the authority of an agent in such conditions would authorise him to terminate or allow to be terminated a tenancy by his own act or omission. Sec. 111(e) of the Transfer of Property Act lays down that ‘a lease of immovable property determines by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them.’ It is open to question as to whether if one of the three joint lessees attempts to make a surrender it would amount to a surrender of the entire lease within the meaning of Sec. 111(e) of the Act. If three persons hold a lease jointly each one of them is a lessee an each one of them, therefore, has some rights of his own which cannot be ignored, however much they may be linked with the rights of the other joint lessees. In 1925 Cal. 752 mentioned above when their Lordships took the view that if notice was not served on one of the parties, and he was not named in the notice at all, the notice could not be taken to be a valid notice within the meaning of Sec. 106, they recognised in their decision the fact that each lessee, however small his share, is a lessee who could not, be ignored by the lessor if the tenancy was sought to be terminated. The Privy Council also does not go to the length of saying that notice to all the joint lessees is not necessary. What was held was that if the notice is served on some of the joint tenants, it may be taken to have reached the others. This enunciation again recognises the fact that those others of the joint tenants on whom notice is not served ought to be served with a notice to quit. Only notice will be taken to have reached them because the notice was actually served on the other joint tenants. If, therefore, each joint tenant has a right under the lease and if this is a right independent of the rights of the other joint lessees and if in recognition of that right it has been held that notices should be served on all the joint tenants, there should be some principle of law on which the service on one or more of the joint tenants may be regarded as service on the others who were not actually served by the lessor.

12. Sec. 106 of the Transfer of Property Act requires that the notice terminating the tenancy should 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 this is not practicable, affixed to a conspicuous part of the property. The service, according to this section, should be, in the first place, personal on the person intended to be bound by the notice. All the lessees should be the persons intended to be bound by the notice. Even the Privy Council does not go the length of saying that the lessees other than the one served may be ignored. If, therefore, the notice is served on all the joint lessees personally, it would be the best form of service. The other mode is of sending it by post addressed to the person bound by it. Now here, the question arises as to whether if the notice is addressed to three persons it may be taken to be a notice sent to the person intended to be bound by it. The post office would deliver the notice to one only. It appears, therefore, proper that a notice sent by post should be addressed to one person only. If a notice is addressed to three persons and is served on one only it has to be considered as to whether it is a proper notice ‘sent to the party intended to be bound by it.’ The answer would be in the affirmative on the basis of the Privy Council case mentioned above. Apart from the delivery of a notice personally to a party a notice may be tendered or delivered to one of the members of his family or one of his servants at his residence. This is vicarious service. It is essential in such service that the member of his family or the servant should be one who resides with him. The idea seems to be that except in the case of negligence or disloyalty a member of the party's family or his servant would in the ordinary course of conduct deliver the notice to the party concerned. It is obvious that if the member of the family or the servant does not reside with the party concerned, the service would not be good. The last mode of service—by affixation to a conspicuous part of the property—is a mode of substituted service well recognised under the Indian law of procedure. The analysis of the above section does indicate that service on the party concerned whose tenancy is sought to be terminated is legally essential. The manner in which such service is to be effected is also indicated. While service on a member of the family residing with a lessee is stated to be a proper manner of serving the notice, service on one of the lessees in the case of a joint lease has not been expressly so mentioned. The statutory provision, therefore, does not throw any light on the principle on which the decision of the Privy Council may have been based. It may be that because they hold the lease jointly they are expected to act unitedly in respect of the lease and when notice is received by one the other joint tenants may be expected to be informed by him of the notice which concerns all of them jointly. For the purpose of the present case, however, I think it proper to follow the view taken by the Privy Council and on the facts of the present case I am of opinion that service of the notice under Sec. 106 was sufficient.

13. Learned counsel sought to support the validity of the service on the ground that the three defendants brothers were members of a joint Hindu family. There are two obvious difficulties in considering this plea. The first is that it was not raised at the trial and consideration of some facts would be essential to decide the case on this ground. In the second place, if the lease was in favour of the family only the Karta of the family could act and a notice to the Karta alone would be a valid notice. In this case Liladhar Pande who appears to be the eldest member of the family should ordinarily be taken to be the Karta unless it be proved that any other person was the Karta. This notice was admittedly not served on him. I have considered the notice to be sufficiently served on the grounds indicated above; it is not necessary to consider this aspect of the matter.

14. The next question is as to whether the notice of demand under Sec. 3 of the (Temporary) Control of Rent and Eviction Act was properly served and as to whether they were in default and liable to ejectment. For the reasons for which the notice under Sec. 106 has been held to be sufficiently served on all the defendants, the notice demanding rent may be taken to have reached all the defendants and in that event it would follow that the non-payment of rent within the period required by law was a default by each and all of them.

15. In the light of the above observation, this appeal must fail and it is dismissed with costs.

16. There may be difficulty in finding suitable accommodation. Therefore, I order that the decree for ejectment may not be executed within three months from this date. Leave to appeal is granted.

17. Appeal dismissed.