DORAIPANDIAN PILLAI Vs. M.S. SIVAGNANAM PILLAI

JUDGEMENT

(1.) THE short question for decision in this case is whether the tenancy of the appellant (defendant) has been validly terminated by a proper notice to quit under Section 106 of the Transfer of Property Act. The appellant was a lessee of the suit house from one Nagarathinam Pillai. The plaintiff -respondent in this second appeal purchased the house from Nagarathinam Pillai and admittedly after the purchase, the appellant -defendant (tenant) attorned to him. On 4th February, 1967 the plaintiff issued a notice to the defendant terminating the tenancy. This notice was received by the defendant on 8th February, 1967, but the effect of the notice terminating the tenancy was waived by the landlord. The plaintiff subsequently appropriated the amounts sent by the defendant for rent due till the end of 22nd March, 1967 and in his plaint would claim rent for the further period of the month also. The notice which has been relied on by the plaintiff as terminating the tenancy entitling the plaintiff to maintain the suit for ejectment is the registered notice dated 9th March, 1967, sent by prepaid registered post, acknowledgment due, properly addressed terminating the tenancy with 31st March, 1967 and requiring the vacant to deliver vacant possession of the premises on 1st April, 1967. This notice has been returned unserved with the postal endorsement ' not found ' dated 20th March, 1967. On a scrutiny of the cover and the postal endorsements it is seen that the defendant was not found from nth March, 1967. Manifestly, there is nothing on record or on the postal endorsement to show that the notice was tendered to the defendant.

(2.) SECTION 106 of the Transfer of Property Act provides, that a notice terminating the tenancy 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. It is well established that a tenancy from month to month does not come to an end by mere efflux of time ; it comes to an end on the expiration of the notice to quit. When we speak of notice to quit, and the law requires that a particular period should expire since notice, it is axiomatic that the intention to terminate the tenancy must be carried home to the knowledge of the tenant and he must have notice of it for the requisite period. Otherwise, there is no purpose in providing for a period and specifying that the prescribed period must expire with the end of the month of the tenancy. Clearly the notice provided for in Section 106 of the Transfer of Property Act is not an empty formality. When a tenancy is terminable by notice, be it by the tenant or the landlord, what is intended by the notice is to give a warning of the intention to end the contract of tenancy at a certain time. The second part of Section 106 of the Transfer of Property Act only provides for the manner in which the notice may be given. It can either be sent by post or tendered or delivered personally to the party intended to be bound by it or to one of his family or servants at his residence. If tender or delivery is not practicable, it may be affixed to a conspicuous part of the property. If the tenant or landlord deliberately avoids, receipt of the notice properly tendered, he will be credited with knowledge of the contents of the notice.

(3.) THE Courts below have proceeded in the view that as in fact and admittedly (the notice was sent by) post that is sufficient to terminate the tenancy even if there was no tender of the notice to the addressee. In that view, ejectment has been ordered and the suit decreed. The lower appellate Court, when confirming the decision of the trial Court, relies upon a passage in Saligram Rai Chunilal Bahadur and Co. v. Abdul Ghani A.I.R. 1953 Ass 206. The passage I should say is taken out mutilated, and out of its context. In that case the defendants disputed the receipt of the notice sent by registered post. But as observed by the Court, that was belied by the acknowledgment filed. The lower Court in that case proceeded in the view that the post peon ought to have been called upon to prove service of notice. It is on that, having regard to Section 27 of the General Clauses Act, the Court observed that there is no obligation upon a lessor to prove service of notice upon the lessee if he sends a notice by registered post properly addressed. That is a case where receipt of notice was prima facie established. The other case relied on for the landlord is a case where the postal endorsement was that the letter was 'refused'. If a letter is returned ' refused ', a presumption can be drawn that it was duly tendered to the addressee and that he refused to take delivery of it.