A notice under Section 106 of the Transfer of Property Act sent by registered post is presumed to have been properly served, and the onus is on the addressee to prove that the notice was not received.

Sarwar Ali, J.

1. The appellant filed a suit for eviction of the respondent from the suit premises. The suit was decreed by the trial court. The appellate court has dismissed the suit. Hence this second appeal.

2. The plaintiff-appellant claimed that he required the suit premises for his own use, bona fide and in good faith. This has been negatived by the lower appellate court. The plaintiff further claimed that the defendant had made default in payment of rent and, as such, he was entitled to a decree for his eviction, under the provisions of Section II of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The appellate court has found that there was default as claimed by the plaintiff. It, however, dismissed the suit on the ground that the notice under Sec.106 of the Transfer of Property Act had not been served in accordance with law.

3. Learned counsel for the appellant contends that the lower appellate court has erred in law in holding that it was for the plaintiff to prove that the notice under Sec.106 of the Transfer of Property Act had to be tendered or delivered to a person having authority on behalf of the defendant. Having heard learned counsel for the parties I am of the view that the court below has not correctly appreciated the legal position in regard to notice under Sec.106 of the Transfer of Property Act and, in the circumstances, it would be just and proper to remand the case to the lower appellate court after stating what, in my view, is the correct position in law.

4. The relevant portion of Sec.106 of the Transfer of Property Act is as follows:-

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"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."

We are not concerned here with the tender or delivery personally or at the residence of the defendant nor are we concerned with the affixation of notice on a conspicuous part of the property. What has to be considered is the position when notices are sent under registered post, as is the position in this case.

5. The facts as found by the lower appellate court are that the notice sent by the plaintiff was under registered post and was received by one Deobrat Sharma. It has also found that the plaintiff has not been able to establish that Deobrat Sharma had authority to receive or accept notice on behalf of the defendant. It was of the view that the failure of the plaintiff to prove the authority was fatal so far as the notice under Sec.106 of the Transfer of Property Act is concerned. This, as I have already indicated, is not the correct approach in law as will be apparent from later discussion.

6. The amendment in respect of notice under registered post was introduced in Sec.106 of the Transfer of Property Act in the year 1929. Before 1929, therefore, there was no specific provision in the section relating to notice through registered post. Even at that time the Judicial Committee held that if notice to quit was proved to have been put into the post office it would be presumed that the letter had reached its destination at the proper time according to the regular course of business of the post office. It would be useful to quote a few lines from the decision of the Privy Council in Harihar Banerji V/s. Ramshashi Roy, AIR 1918 PC 102, where Lord Atkinson, after approving the decision of the High Court to the effect that if a letter, properly directed, is proved to have been put into the post office, it is presumed that the letter reaches its destination at the proper time according to the regular course of business of the post office and is received by the persons to whom it is addressed, observed as follows:-

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"... .that presumption would apply with still greater f