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[2013(2) ADJ 281]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
Smt. VANDANA GULATI ....Petitioner
Versus
GURMEET SINGH @ MANGAL SINGH ....Respondent
(Civil Revision No. 517 of 2012, decided on 8th January, 2013)
(B) Transfer of Property Act, 1882—Sections 111 (h) and 106 (As amended in State of U.P.)—Lease—Immovable property—Determination of—A lease of immovable property is determinable by a notice of 30 days—As amended in State of U.P. [Paras 5]
(C) Transfer of Property Act, 1882—Section 106 (4) (As amended in State of U.P.)—Lease—Notice—Determination of—Manner in which a notice has to be given—It must be in writing—Must be signed by or on behalf of person giving it—Must be sent by post—Must be tendered/delivered personally or to one of his family member or servant at his residence—If such tender or delivery is not practicable—By fixing it at some conspicuous part of property. [Para 7]
(D) Transfer of Property Act, 1882—Section 106 (4)—Words ‘at his residence’—Connotation of—It means tendering or delivering notice personally or to family member or servants—And not to sending of notice by post—This necessarily means that a notice by post can be send to person concerned either at his residential or official address. [Para 9]
(E) Transfer of Property Act, 1882—Section 106—Notice thereunder—Ways to send—It can be sent in two ways—By post or by tendering or delivering it personally. [Para 11]
(F) Evidence Act, 1872—Section 114—Presumption thereunder—Service of letter/notice—Where a letter is shown to posted in common course of business—And in manner provided—It may be presumed to served in usual course, unless interrupted by disturbance. [Para 12]
(G) General Clauses Act, 1897—Section 27—Notice—Service by post—Meaning of—Where any document is required to be served by post—Its service shall be deemed to be affected by properly addressing, prepaying and posting it to person concerned by registered post—Unless contrary is proved. [Para 12]
(H) Evidence Act, 1872—Section 114—General Clauses Act, 1897—Section 27—Notice—Deemed service of—Section 114 deals with a presumption of fact—Whereas Section 27 deals with a presumption of law—Cumulative effect of both provisions is that—A letter/notice sent by registered post to person concerned—At proper address shall be deemed to be served upon him in due course—Unless contrary is proved. [Para 13]
Hon’ble Pankaj Mithal, J.—The Small Causes Court Suit of the landlord in respect of house No. 18/182A, Kursawan, Kanpur Nagar, on the strength of the notice of demand and determination of tenancy dated 2.2.2007 has been decreed by the Court below vide judgment and order dated 6.8.2012.
2. The tenant has challenged the aforesaid judgment and order in this revision on a very limited point that the notice determining tenancy was not sent to her at her residential address and therefore, no presumption of its service would arise so as to legally determine her tenancy.
3. I have heard Sri B.N. Agarwal, learned counsel for the tenant revisionist and Sri Atul Dayal, learned counsel appearing for the respondent landlord, who agreed for the final disposal of the revision at the stage of admission itself.
The Court below under point for determination No. 2 held that the tenant was sent a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) determining his tenancy which is a valid notice deemed to be duly served upon her.
4. The submission of Sri B.N. Agarwal, in this regard is twofold that the notice was not sent at the residential address of the tenant and that the endorsement of not claimed/not met on the envelope would not amount to service of the notice.
5. The lease of an immovable property is determinable in the manner provided under Section 111 of the Act. It inter alia vide clause (h) provides that a lease of immovable property stands determined on the expiration of notice to determine the lease, or to quit, or of the intention to quit the lease property.
Section 106 of the Act lays down that a lease of immovable property other than for agricultural or manufacturing purposes, shall be a lease from month to month which shall be determinable by either of the parties by giving 15 days notice, which in its applicability to the State of U.P. stand amended to a period of 30 days.
6. A conjoint reading of Section 111(h) and Section 106 of the Act makes it clear that a lease of an immovable property is determinable by a notice of 30 days.
7. Section 106(4) of the Act provides for the manner in which a notice determining a lease has to be given. It reads as under:
(4) Every notice under sub-section (1) 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.
A plain reading of the aforesaid provision would indicate that it mandates that a notice determining lease must fulfill the following conditions:
(i) it must be in writing;
(ii) it must be signed by or on behalf of the person giving it;
(iii) it must either be sent by post to the party who is intended to be bound by it; or
(iv) it must be tendered or delivered personally to such party or to one of his family members or servants at his residence; or
(v) if such tender or delivery is not practicable, by affixing it at some conspicuous part of the property.
8. Sub section 4 of Section 106, not only, provides for a notice determining lease to be in writing and signed by the person giving it but that such a notice must be sent to the person concerned either by post or by tendering or delivering it personally or to one of his family members or servants. The tendering or delivering of notice personally to the person or to one of his family members or servants has to be at his place of residence for the obvious reason that during the day time, on a working day, a person is rarely to be found at his residence, as he is supposed to be at his working place/office rather than at home. The sending of notice by post is not qualified. It may be sent by post to the party concerned at his known address whether it happens to be his official or residential address
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