TMI Blog1967 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... uate within the same boundary wall which includes two other premises bearing Nos. 28/10-A and 28/10-B Nakuleswar Bhattacharjee Lane. The plaintiffs are the owners of all the three premises. The ground floor of Premises No. 28/10-A Nakuleswar Bhattacharjee Lane is occupied by a tenant. The first floor of that premises and also both the ground and first floors of Premises No. 28/10B are occupied by the plaintiffs and their relations who are members of their family. The premises No. 28/10C which is the suit premises is also two-storied and whole of that premises is within the tenancy of the defendant. 3. It may be mentioned that the plaintiffs made a case that the notice terminating the tenancy under Section 106 of the T. P. Act was first sent by their lawyer, Mr. D. N. Lahiri by registered post to an address at Kanpur where the defendant resides for the purpose of his business. The Postal Registration receipt, Ext. 9, showed that a registered cover was sent from Calcutta on 5th of November, 1962. The registered cover, Ext. 7 was returned to the sender with the endorsement to the effect not found . That cover was addressed to Sukumar Guha, 111A/218, Asoknagar, Kanpur (U. P.) . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rooms in the first floor in premises No. 28/10-A and also one room in the ground floor in that premises which the plaintiffs have obtained recently in their occupation from the tenant there. It was the plaintiffs' case that the accommodation available is not sufficient and they require in addition one drawing room, one kitchen, one store room, one Thakurghar, one study room for the boys and another study room for the girls and also three more rooms for use as bed-rooms. Both the courts have held that the plaintiffs require the accommodation in suit premises for their own use and occupation. 8. Regarding the other ground for ejectment for the purpose of building and rebuilding and also for additions and alterations the plaintiffs produced a Plan sanctioned by the Corporation of Calcutta and adduced evidence to show that the construction works necessary for those purposes cannot be carried out without evicting the tenant-defendant from the whole of premises No. 28/10-C. Both the courts held that point in favour of the plaintiffs and also that the plaintiffs have the financial capacity to undertake the construction sanctioned by the Corporation of Calcutta. Those concurrent fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Act, that the letter (containing a copy of notice, Ext. 8) posted under Certificate of Posting was delivered to the addressee, i. e., the defendant Sukumar Guha. 11. Mr. Mukherjee's criticism of that finding based on presumption under Section 114, Evidence Act is two-fold. First he says that presumption can be raised only when service has been by sending by Registered Post as Section 27 of the General Clauses Act provides. Even then, according to Mr. Mukherjee's contention, such presumption is rebutted when the defendant deposes in witness box and denies that the letter sent to him by post had been delivered to him, Reliance is placed on the decision in the case of Gobinda Chandra Saha v. Dwarka Nath. 19 Cal WN 489: (AIR 1915 Cal 313). 12. Mr. Milter points out that the decision in 19 Cal WN 489: (AIR 1915 Cal 313) was when Section 106, T. P. Act did not contain that part which now provides sending by post to the party. The phrase was added by Section 54 of amending Act XX of 1929 obviously to give effect to the decision reported in ILR 46 Cal 458: (AIR 1918 PC 102) Harihar Banerji v. Ramshashi Roy, which held that service by post is a recognised mode and pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and it can be effected by sending it to the party's correct address anywhere, not necessarily to his permanent address or to the suit premises. Mr. Mitter acknowledges the dicta in the Privy Council decision reported in 43 Cal WN 309: (AIR 1939 PC 11) but says correct address may be wherever mails addressed to the party ordinarily will reach him, wherever he may be for the time being. Mr. Mitter, however, accepts the contention that tender or delivery to a person in the family or a servant need be made at the residence. Rut he contends that such residence means usual place of residence of the tenant and his family and a residential premises taken on rent by the tenant is certainly his residence for the purpose of such tender or delivery of notice. For considering the merits of the opposing contentions of the two learned Advocates it is necessary to examine the provisions in the 2nd para of Section 106. T. P. Act. It reads: 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 nr delivered personally to such party, or to one of his family o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the party personally, then such facts may bring the service of notice within the 2nd mode abovementioned. If however, tender or delivery is not to the party personally but to a member of his family or a servant, then it may be effective tender or delivery only when the notice was addressed to the residence of the party. Such personal tender or vicarious tender may be effective even if it was through the agency of post office, and proof of that tender comes from testimony of any person present at the event, and not only by examining the postman. 16. If the letter containing notice sent by post has not been returned to the sender, then it is a case where presumption operates. Whether such presumption has been rebutted depends on the acceptability of evidence denying tender or delivery offered by the defendant. Mere denial will not lead invariably to rebuttal of presumption properly raised. That has been held in this Court by the Division Bench in the case of Sushil Kumar Chakravarty v. Ganesh Chandra Mitra . That has been followed in a later decision to which I was a party which has been reported in (1903) 67 Cal WN 819 Chhaya Debi v. Lahoriram Prashar. 17. In my view prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the footing that he is bound to raise that presumption and has not considered whether it will be proper to act on the presumption that may or may not be raised under Section 114 of the Evidence Act. Mr. Mukherjee's contention has been that if the final Court of fact had devoted that consideration, upon the evidence in the case that the defendant was at the time living at Kanpur, it could not be properly presumed that the notice addressed to his Kalighat address was delivered to him in ordinary course of business. Mr. Mukherjee pressed for a remand of the case to the trial court for obtaining proper finding on that point. 20. Mr. Mitter has pointed out that there is definite evidence provided by defendant's own deposition that letters addressed to his Kalighat address are ordinarily received by him. Mr. Mitter has also argued us a matter of law that a letter addressed to a residential premises taken on rent by a person for residential purposes and where a section of his family resides is the correct address of that person though the person himself is away from the place for the time being. He, therefore, contended that the courts below raised the presumption properly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t I may observe that on the findings of fact arrived at by courts below 3rd mode of service by tender to a member of defendant's family was very much practicable and was in fact availed by the Plaintiffs. For that reason the 4th mode of service by affixing on the suit premises was not available in law to the plaintiffs. 25. On the other point of Mr. Mukherjee that plaintiffs are not entitled to a decree in their favour because grounds within Section 13(1)(f) have not been made out, he has attacked the findings and decision of the courts below by pointing to the plaint where all the alternative components in Section 13 (1) (f) have been mentioned as the grounds for reasonable requirement of the suit premises. Mr. Mukherjee contends that requirement for own use and occupation and requirement for building and rebuilding or for repairs and alterations cannot co-exist and in a way one cancels the other. I am unable to agree with Mr. Mukherjee on that interpretation of Section 13 (1) (f) because I hold that, though rare, it is quite contemplatable that owner of the premises may reasonably require the premises for his own use and occupation by adjusting and expanding the accommodat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the premises are reasonably required by the landlord (1) either for the purpose of building or rebuilding (2) or for making thereto substantial additions or alterations (3) or for his own occupation if he is the owner (4) or for the occupation of any person for whose benefit the premises are held. Mr. Mukherjee accepts that reasonable requirement of the landlord for his own occupation includes the accommodation reasonably necessary for occupation by not only the owner of the premises, but also his members of the family. He also accepts that in different environments and in different circumstances it has been held in several decisions of this Court that persons other than direct relations of the owner and servants, cooks and even residential private tutors for children have been included in making out a family for that purpose. But, Mr. Mukherjee argues that second degree cousins like tamer's sister's sons cannot be considered to be a member of the family, far less the wives and children of such cousins and a paternal cousin of such a cousin. Mr. Mukherjee's argument is that to include those persons for ascertaining the need of living space required by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also points out that the narrow view of family urged by Mr. Mukherjee tends to leave out of calculation even the widow mother and widow sister of the two plaintiffs. According to Mr. Mitter's contention there cannot be a set formula as to whether width or narrowness should be applied for ascertaining the contents of any particular family and the decisions of this Court show clearly that the width varies not only with environment and outlook of the persons concerned, but also with the angle of vision in respect of social duties and responsibilities and also social rights acknowledged and adhered to those persons. 30. On this point I need only say that in my view the extent of the boundaries of the family depends on particular facts of each case and the structure and outlook of each family. No one can be dogmatic either way on such matters. Upon the evidence in the present case I consider that the courts below acted rightly in accepting the plaintiffs' case that the two cousins of the plaintiffs were members of the family and that being so their wives and children must also be reckoned as members of the family. The paternal cousin of the aunt's son has no direct mood- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned Honed by the Corporation authorities cannot be carried out without evicting the tenants from the premises No. 28/10C. The answer in cross-examination emphasised by Mr. Mukherjee appears clearly as an answer to a hypothetical question asked whether the vacant land in the south of 28/10C can be built upon without disturbing the tenants in that premises. That is entirely besides the point to be answered or to be considered in this case. The findings arrived at concurrently by the courts below are held to be proper findings. Mr. Mukherjee did not contest the finding of the Courts below that the plaintiffs have financial capacity to carry out the building and rebuilding. 32. I have reached the conclusion that this appeal should fail but I hold that in the particular circumstances of the present case the defendant should be given sufficient time to vacate the premises where the defendant with his family has been living for a long time. This necessity for time is great for their finding an alternative accommodation to live in, in the present conditions prevailing in the city of Calcutta. Mr. Mukherjee in course of his arguments prayed for 3 years from to-day as a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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