TMI Blog1914 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... premises from the commencement of the Bengali year 1306, that the rent was fixed at ₹ 275 a year, and that the period during which the tenancy was to continue was not settled. It is plain that the defendant became a tenant for one year only for a rent of ₹ 275 because, under section 107 of the Transfer of Property Act, which was in force when the tenancy was constituted, a lease of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent could be made only by a registered instrument. The position consequently, was that the tenancy would, in ordinary course, expire at the end of the year 1306. The tenant, however, continued in occupation, and the landlords accepted rent from him for 1307; in other words, the tenant held over, the legal effect whereof is deducible from section 116 of the Transfer of Property Act. That section-- we quote only so much of it as is applicable to the present case--is in these terms: If a lessee......of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee.......or otherwise assents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 116, and that after the expiry of the year for which the tenancy took effect, it was renewed from month to month: Debendra Nath v. Syama Prosanna 11 C.W.N. 1124; Durgi Nikarini. Gobardhan Bose 24 Ind. Cas 183, 20 C.L.J. 148. Under section 106, this tenancy was terminable by the lessors by fifteen days' notice expiring with the end of a month of the tenancy. 3. As regards the second question, two objections have been taken to the form of the notice, namely, first, that the notice, which was dated the 16th Baisakh 1318 and may, for the present purpose, be assumed to have been served on that date, called upon the defendant to vacate the premises 'within' (that is, not later than) the 31st Baisakh 1316; and secondly, that the notice was signed on behalf of the first plaintiff by one Bharat Chandra De. These objections are manifestly groundless A notice served on the 16th Baisakh which calls upon the tenant to quit on the 31st Baisakh (the last day of the month) gives the tenant fifteen days' notice, excluding the day on which the notice is served and expiring with the end of a month of the tenancy. The case of Sabadini v. Durga Charan 28 C. 118; 4 C.W.N. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was served in accordance with the second paragraph of section 106, which provides as follows: Every notice under this section must be in writing, signed by or on behalf of the person giving it and tendered or delivered either personally to the party who intend-ed to be bound by it, 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. In this case, attempt was made by the plaintiffs to comply with the requirements of the law by forwarding the notice to the defendant in a registered cover through the Post Office. The cover was ultimately returned to the plaintiffs by the Postal Authorities on the allegation that the addressee had refused to accept it. The cover, with the notice contained therein, has been produced in the course of the trial. There is no oral evidence to show when the cover was posted, nor has the postal peon been examined to prove when and where the cover was tendered to the defendant. The only oral evidence on the subject is a statement by the agent of the plaintiffs, who pledges his oath that he had given notice by a registered cover. The defendant, on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the papers was received from the Post Office which might have been ascertained by the persons employed in that office, was not sanctioned. In Rex v. Waston (1808) 1 Camp. 215 a post mark was held not sufficient to show posting at the place named. In Arcangelo v. Thompson (1811) 2 Camp. 620 at p. 623; 12 R.R. 768 a post mark was assumed genuine in proving receipt of a letter in a certain year. In Rex v. Plumer (1814) Russ. R. 264; 15 R.R. 741 Post Office marks were used to show that a letter came to a particular office, and similarly in Hitchon v. Best (1819) 2B. B. 299; 129 E.R. 737 a post mark was presumed to be genuine. In Fletcher v. Braddyll (1821) 3 Stark. 64; 23 R.R. 758 a Post Mistress was called to identify a post mark. In Abbey v. Lill (1829) 5 Bing. 299 at p. 304; 2 M. P. 534; 7 L.J. (o.s.) C.P. 96; 130 E.R. 1076 Gaselee, J., said: Where it is disputed, it ought, perhaps, to be proved, though what might be deemed to amount to proof is not clear. In Warren v. Warren (1834) I. C. M. R. 250; 4 Tyr. 850; 3 L.J. (N.S.) EX. 294; 40 R.R. 547 the Post Master of one of the offices was called to prove the post mark. In Shipley v. Todhunter (1836) 7 C. P. 680 at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsurance Co. (1889) 118 N.Y. 147; 10 Am. St. Rep. 441, experience indicates no such uniform connection between the date of a letter and the time of its mailing as to raise an inference that a letter was posted on the day of its date. 9. The next question which requires consideration is, when was the cover tendered to the addressee? For this purpose it would be necessary to know the usual course of mail between the place of posting and the place of receipt, for the inference is that the article posted was delivered in due course of post: Pills v. Harlford (1895) 66 Conn. 376; 50 Am. St. Rep. 96. We have here no evidence on the subject, and the Court cannot take as matters of public notoriety the running time of trains between two places on a particular day, the number of mail trains within a given time, and other like facts involved in such an inquiry: Wiggins v. Burkham (1869) 77 U.S., 10 Wallace 129; 19 Law Ed. 884. We are, therefore, obliged to rely upon the date in the post mark of the Narayanganj Post Office. This shows that the cover reached that office on the very date it was posted at Madanganj i.e. 29th April 1911; but it does not follow that it was tendered to the addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case, however, if it be assumed to have been correctly decided, is clearly distinguishable. There a suit was brought for ejectment of a tenant of an agricultural holding, and the question arose whether the tenancy had been terminated by service of notice to quit. The plaintiffs alleged that they had sent a notice to the defendant in a registered cover, duly posted, which had been returned to them by the postal authorities on the allegation that it had been refused by the addressee. The Courts below held that these facts were proved, but it does not transpire from the judgment, on what evidence this conclusion was based; both Courts, however, held that there was no service of notice, as the defendant had not opened the letter and become acquainted with its contents. The plaintiffs appealed to this Court on the ground that the bare fact of refusal to take and open the registered cover did not entitle the defendant to plead non-service of notice. In the course of the argument for the appellants in this Court, reference was made by their Counsel to section 16, illustration (b), of the Indian Evidence Act and to the cases of Papillon v. Brunton (1860) 5 H. N. 518; 29 L.J. Ex. 265; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter Office, are relevant. This is very different from the assertion that if the letter is returned with a note thereon by the peon that it had been tendered to and refused by the addressee, the inference follows that it was so actually tendered and refused. The case of Lootf Ali v. Pearee Mohun 16 W.R. 223 was decided before the Indian Evidence Act came into force; and cannot be treated as an authority on the question of the admissibility of evidence under section 32(2); but the facts are so meagerly stated in the judgment that, even treated as such authority, it is quite inconclusive; all that appears is that one of the plaintiffs sent a notice to the defendant in a cover which was refused by the addressee, came back to the hands of the sender and was produced in Court. What evidence there was on the point does not appear, but we have the following observation in another part of the judgment: that letter was forwarded to him by post duly registered and we must presume that it was tendered to him, lie, therefore, cannot take advantage of his refusal to take it. The case of Papillon v. Brunton (1860) 5 H. N. 518; 29 L.J. Ex. 265; 120 R.R. 704 was of a very different character. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the defendant. The vernacular endorsement is not admissible for this purpose and cannot be treated as evidence of the events recited therein. Nor would section 114 of the Indian Evidence Act and illustration (f) thereto, which are mentioned in the case of Mir Tapurah Hossein v. Gopi Narayan 7 C.L.J. 251 at p. 258, be sufficient to remove the difficulty in the way of the plaintiffs; even if we presume it as likely that the cover was tendered to the addressee, we cannot assume that it was so tendered on the 29th April 1911, yet such assumption is essential for the success of the plaintiffs. Proof of the fact that a better correctly addressed has been posted and has not been received back through the Dead better Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the presumption that it has been so returned because it has been refused by the addressee; for it may well be that it has been returned because the addressee has not been found; much less is there a presumption that the cover has been tendered to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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