# Anil Kumar v. Ramraj & Ors. 1312 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 11 ILRA 1311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-14
- **Case number:** Matters Under Article 227 No. 12830 of 2025
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-ramraj-ors-1312-indian-law-reports-allahabad-series-52746
- **Pages:** 17

## Text

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11 All. Anil Kumar Vs. Ramraj & Ors.
1311
the society which was in consonance with
Clause 26 of by-laws registered with
Registrar of Societies. Moreover, Clause 33
of by-laws clearly provided that any legal
proceeding initiated by society or against
society shall be carried by Secretary and
Joint Secretary of the society.

41. It is an undisputed fact that society
had instituted suit for eviction against
petitioners in all the three writ petitions and
a hyper technical objection has been raised
that Kapil Sharma had no authority to
contest the matter on behalf of society. It is
evidently clear from Clause 26 and 33 of bylaws of the society that the Secretary as well
as Joint Secretary are empowered to contest
all the litigations before the Court on behalf
of society. Further, there is no dispute
among any of the trustees or Members of the
trust or society in regard to authority of
Kapil Sharma acting as Secretary of the
society.

42. Once, such is the position that the
authority of Kapil Sharma acting as Secretary
of the society has never been under challenge
by any of the trustee or members of society, the
question raised by tenant-petitioner is of no
consequence.

43. This Court finds that the eviction
proceeding has been dragged on for last 25
years and solely on technical ground the
possession of the shop in question could not be
handed over to landlord-society.

44. During argument, Sri H.N. Singh,
learned Senior Counsel had submitted that due
to huge influx of devotees thronging at the
Temple everyday, it has become difficult to
manage the crowd and shops within the campus
need to be removed for easy accessibility of the
devotees to perform their religious obligation
within the temple premises.

45. This Court finds that initially only a
licence was granted to petitioners for a period of
11 months. They have continued for a long time
despite the fact that licence was never renewed.
The only effort on the part of petitioners is to
drag on the litigation on technical ground.

46.
Considering
the
facts
and
circumstances of the case, I find that no
interference is required in the finding
recorded by both courts below in Writ
Petition No. 11338 of 2025 as to public
religious and charitable character of plaintiffrespondent society and also the challenge to
the authority of Secretary of the society.
Thus, both the questions framed above stand
answered.

47. Similarly, no interference is required
in the order passed by revisional court which is
under challenge in Writ Petition No. 1903 of
2015 and Writ Petition No. 2081 of 2015.

48. All the three writ petitions fail and are
hereby dismissed.

49. However, the trial court is directed to
proceed with S.C.C. Suit No. 9 of 2000 and
S.C.C. Suit No. 14 of 2002, expeditiously and
conclude the proceedings, within a period of
two months, from the date of production of
certified copy of this order.
----------
(2025) 11 ILRA 1311
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 12830 of 2025

Anil Kumar ...Petitioner
Versus
Ramraj & Ors. ...Respondents
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Gulrez Khan

Counsel for the Respondents:
Prakash Chandra Dwivedi, Shailesh Pandey

Issue for Consideration
(i) Whether lease executed for more than one
year and was needed to be compulsorily
registered under Section 17(1) (d) of the Act of
1908.
(ii) Whether the notice was served by refusal
and Postman was not produced to prove it, the
suit could not have been decreed.

Head Notes
The Constitution of India, 1950-Article
227; The Transfer of Property Act, 1882Section 106 & 107; The Registration Act,
1908-Sections 2(7) & 17(1) (d); The
Indian Stamp Act-1899-Section 35- From
a conjoint reading of the Act of 1882 and
the Act of 1908, it is clear that in case of
lease of an immovable property from year
to year, or for any term exceeding one
year, or reserving a yearly rent has to be
compulsorily registered under Section
17(1)(d) of the Act of 1908- Lease
executed was for more than one year and
was needed to be compulsorily registered
under Section 17(1)(d) of the Act of 1908.
Moreover, Section 35 of Indian Stamp Act,
1899 provides for inadmissibility of an
instrument not duly stamped in evidence.

Held-
(i) That the rent deed being not a registered
document was rightly turned down in evidence
by court below and notice under Section 106
having been served terminating the tenancy, as
tenant had committed default in payment of
rent, the order of eviction and arrears of rent
passed
by
both
courts
below
need
no
interference of this Court.
(ii) Petitioner had fallen short of requisite duty
to rebut presumption and, therefore, the finding
recorded by both courts below as far as service
of notice does not suffer from any error and,
thus, the presumption of service of notice held
by both courts below cannot be presumed as
erroneous.(Para 14, 18, 23 & 24) (E-15)

Case Law Cited
Ashish vs. Saleem, 2016 (7) ADJ 7.;Siri Chand
(deceased) through L.Rs. vs. Surinder Singh,
2020 AIR (SC) 3249;Harish Chandra vs. Jai
Narayan, 2019 (2) ARC 145;Ugrasen vs.
Parmeshwari Devi, 2014 (9) ADJ 356; rem
Bahadur Dalela vs. Umeshraj Bali, S.C.C.
Revision
No.
157
of
2015,
decided
on
06.11.2019

List of Acts
The Constitution of India, 1950-Article 227; The
Transfer of Property Act, 1882; The Registration
Act, 1908; The Indian Stamp Act-1899

List of Keywords
Lease of an immovable property ; Year to year,
or any term exceeding one year; or reserving a
yearly rent has to be compulsorily registered
under Section 17(1)(d) of the Act of 1908;

Case Arising From
Order dated 21.04.2025 passed in S.C.C. Suit
No. 5 of 1993 and order dated 14.08.2025
passed
by
Additional
District
Judge,
4,
Chandausi, Sambhal in S.C.C. Revision No. 28 of
2013.

Appearances for Parties
Counsel for Petitioner : Gulrez Khan
Counsel for Respondent : Prakash Chandra
Dwivedi, Shailesh Pandey

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Gulrez Khan, learned
counsel for petitioner, Sri Shailesh Pandey,
learned counsel for respondent no. 1 and
Sri R.C. Singh, learned Senior Counsel
appearing for respondent no. 3.

2. This writ petition filed under Article
227 of Constitution of India assails the
order dated 21.04.2025 passed in S.C.C.
Suit No. 5 of 1993 and order dated
14.08.2025 passed by Additional District
Judge, 4, Chandausi, Sambhal in S.C.C.
Revision No. 28 of 2013.
11 All. Anil Kumar Vs. Ramraj & Ors.
1313

3. The case in brief is that petitioner
along with respondent no. 5 had entered
into an agreement with one Ashok Raj, the
landlord on 13.08.1986. Shops on ground
floor, first floor and second floor were
constructed with investment being made by
petitioner-tenant. Shop at first floor and
second floor were let out to tenant and rent
agreed was Rs.400/- which was to be
deducted from the cost incurred in
construction
and
renovation.
On
11.07.1990,
another
agreement
was
executed between the landlord and tenant
in respect of a shop situated on ground
floor at monthly rent of Rs.1,000/-. As
there was default in payment of rent,
respondent-landlord gave notice under
Section 106 of Transfer of Property Act,
1882 (hereinafter referred as "the Act of
1882")
terminating
the
tenancy
and
vacating the premises in question. A S.C.C.
Suit No. 5 of 1993 was filed when despite
notice, arrears of rent from 10.09.1992 to
09.05.1993 was not paid along with
house tax. The suit was contested by
tenant and a written statement was filed
wherein it was alleged that agreement
dated 11.07.1990 provided that landlord
cannot get the shop vacated as per Clause
3 of the agreement. The trial court framed
following issues:-

"1:- क्या प्रनतवादीगण िे अदायेगी
किराया में चूि िी है?

2:- क्या िोदट अिंतगात धारा 106
टी० पी० एक्ट िी तामीला पयााप्त है?

3:- क्या अिुबिंध ददिािंकित 11-71990 िे रहते हुये वादीगण िो वाद योजजत
िरिे

िा अगधिार प्राप्त है?

4:- क्या प्रनतवादी िंख्या-1 िो
अिावश्यि रूप े पक्षिार बिाया गया है?

5:- क्या वादीगण कि ी अिुतोर् िो
पािे िे अगधिारी है, यदद हािं तो क्या?"

4. Issue No. 1 was in regard to default
having committed by tenant in payment of
rent which was decided against tenant
holding him to be in arrears, while Issue
No. 2 in regard to service of notice under
Section 106 of the Act of 1882 was also
decided against defendant/tenant. The trial
court while dealing with Issue No. 3 found
that agreement dated 11.07.1990 was not
registered thus could not be taken in
evidence. The trial court decreed the suit
for arrears of rent and eviction on
08.11.2013. Aggrieved by order of trial
court, petitioner filed S.C.C. Revision No.
28 of 2013 which was dismissed on the
ground that co-tenant Sunil Kumar had
filed S.C.C. Revision No. 27 of 2013 which
has already been dismissed, thus, Revision
No. 28 of 2013 was also dismissed.

5. The matter was carried to this Court
through Matters under Article 227 No.
4713 of 2021. The co-ordinate Bench of
this Court on 05.09.2024 allowed the writ
petition and set aside the order passed in
Revision No. 28 of 2013 and remanded
back the matter to revisional court to decide
the revision afresh. Post remand, the
revision has been decided by order dated
14.08.2025.
Hence,
the
present
writ
petition.

6. Counsel for petitioner submits that
the rent agreement executed between the
landlord and tenant on 11.07.1990 clearly
stipulated in Clause 3 that no proceeding
for eviction could be initiated against the
tenant, thus, S.C.C. Suit filed could not
have been decreed. According to him, the
finding recorded by both courts below that
the agreement which has been relied cannot
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
be taken in evidence as it is not registered,
is not correct. He submitted that it was a
case of month to month tenancy and in
view of Section 107 of Transfer of Property
Act, the registration was not required in
terms of Section 17(1)(d) of Registration
Act, 1908 (hereinafter referred as "the Act
of 1908"). He has relied upon the decision
of Apex Court rendered in case of Siri
Chand (deceased) through L.Rs. vs.
Surinder Singh, 2020 AIR (SC) 3249 and
decision of co-ordinate Bench rendered in
case of Ashish vs. Saleem, 2016 (7) ADJ
7.

7. He next contended that as the notice
was served by refusal and Postman was not
produced to prove it, the suit could not
have been decreed. Reliance has been
placed upon a decision of co-ordinate
Bench
rendered
in
case
of
Harish
Chandra vs. Jai Narayan, 2019 (2) ARC
145.

8. Sri Arpit Agarwal, learned counsel
appearing for respondent-landlord submits
that tenancy between the landlord and
tenant is for a term exceeding one year and
stipulation providing that no eviction
proceeding can be initiated against tenant
clearly carves out a case under Section 107
of Transfer of Property Act, 1882 and
registration was must before it was taken in
evidence. He then contended that once
notice was on the correct address and it was
refused then it will be deemed to be
sufficient notice.

9. I have heard respective counsel for
the parties and perused the material on
record.

10. It is an admitted case of tenancy
between tenant-petitioner and respondentlandlord that shop situated on the ground
floor was let out at a rent of Rs.1,000/- per
month. It is also admitted to both the
parties that agreement was executed on
11.07.1990 in respect of said shop. The
agreement relied by petitioner is as under:-

"इिरार िामा"
------------

हम कि अशोि राज व रामराज पुत्र
गण श्री िन्द लाल निवा ी गण मोहल्ला िोट
शिी वल्दा म्भल जजला मुरादाबाद फरीि
अव्वल और ुिील िुमार व अिील िुमार पुत्र
गण श्री त्रत्रलोिी िाथ निवा ी गण मोहल्ला
वल्दा म्भल जजला मुरादाबाद फरीि दोयम
िरार मोाअतबर िरते है कि हम फरीि अव्वल
िी एि दुिाि जेल तीि मिंजजल है जज में े
जेरी मिंजजल िी दुिाि फरीि दोयम िो एि
हजार रुपये (माहवार िी शरह े आज िी
तारीख 11-7-90 े किरायेदार ही है जो कि
निम्ि शराईत िे तहत रहेगी ।

शराईत
===

1 - यह कि फरीि दोयम किराया
अदा िर िे र ीद हास ल िर सलया िरेगा त्रबिा
र ीद िे किराया िात्रबले इ तदलाल अदालत
िही होगा।

2 - यह कि हर पाच ाल बाद मूल
किराये में द प्रनतशत बढ़ौतरी हुया िरेगी।

3 - यह कि फरीि अव्वल कि ी दशा
में भी फरीि दोयम िो बेदखल िरिे िे हक़
दार िहीिं होगे ।
11 All. Anil Kumar Vs. Ramraj & Ors.
1315

4- यह कि दुिाि जेल बरु फरीि
दोयम स्वयिं या अपिी ओर े कि ी दीगर
व्यजक्त िो ाक्षी िर िे भी िारोबार िरिे िे
हिदार होगे जज िे सलये फरीि दोयम
इजाजत फरीि अव्वल े ले लेगे।

5 - यह कि भुजाि िी फाई पुताई
बजजम्मे फरीि दोयम रहेगी ।

6- यह कि दुिाि िा हाउ टैक् व
वाटर टैक् फरीि दोयम अदा िरेंगे।

यह इिरार िामा हाजा रूबरु गवाहाि
तहरीर िर ददया कि िद हो और वक्त िरत
िाम आवे वित

हदूदबॉ दुिाि तीि मिंजजल जज िी
स फा िीचे िी मिंजजल िी दुिाि किराये पर दी
गयी है वािे मोहल्ला ठेर बल्दा म्भल जजला
मुरादाबाद ।

पूरब- दुिाि आिन्द स्वरूप ।

पजश्चम - दुिाि राम िुिंवर ।

उत्तर- आबइि दुिाि व हरर त्रबजली
वाले ।

दजक्खि - ड़ि रिारी ।

तहरीर
बतारीख
11-7-1990
ब
मुिाम त्रबिालत खािा मुन् फी म्भल
बजररये मो० इस्लाम टाइवपस्ट टाईप हुआ।"

11. From perusal of the agreement, it is
clear that tenancy was created at monthly rent
of Rs.1,000/- starting from 11.07.1990.
Clause 1 provided for issuance of rent receipt.
Clause 2 provided that after completion of
five years, 10% rent would be enhanced.
Clause 3 provided that tenant would not be
evicted from the shop in question.

12. The third clause is of great relevance
as it confers the lease in perpetuity that is
exceeding for a term of more than one year.
Section 107 of the Act of 1882 provides that
a lease of immovable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent, can be made only by
a registered agreement. Relevant Section 107
is extracted hereasunder:-

"Section 107. Leases how made.-
A lease of immoveable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent, can be made only by
a registered instrument. All other leases of
immoveable property may be made either by
a registered instrument or by oral agreement
accompanied by delivery of possession.
Where a lease of immoveable property is
made by a registered instrument, such
instrument or, where there are more
instruments than one, each such instrument
shall be executed by both the lessor and the
lessee:

Provided
that
the
State
Government may, from time to time, by
notification in the Official Gazette, direct that
leases of immoveable property, other than
leases from year to year, or for any term
exceeding one year, or reserving a yearly
rent, or any class of such leases, may be
made by unregistered instrument or by oral
agreement without delivery of possession."

13. The objection raised by landlordrespondent was as to admissibility of
document before trial court on the ground
of it being unregistered. Section 17(1)(d) of
the Registration Act, 1908 provides for
compulsory registration of a document
relating to lease of immovable property
from year to year, or for any term
exceeding one year or reserving a yearly
rent. Moreover, Section 2(7) of the Act of
1908 defines a "lease". Both Section 2(7)
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Section
17(1)(d)
are
extracted
hereasunder:-

"(7)
"lease"
includes
a
counterpart, kabuliyat, and undertaking to
cultivate or occupy, and an agreement to
lease;"

"17.
Documents
of
which
registration
is
compulsory.-(1)
The
following documents shall be registered, if
the property to which they relate is situate
in a district in which, and if they have been
executed on or after the date on which, Act
No. XVI of 1864, or the Indian Registration
Act, 1866, or the Indian Registration Act,
1871, or the Indian Registration Act, 1877,
or this Act came or comes into force,
namely:"

(a) ...

(b) ....

(c) ....

(d) leases of immovable property
from year to year, or for any term
exceeding one year, or reserving a yearly
rent;"

14. Thus, from a conjoint reading of
the Act of 1882 and the Act of 1908, it is
clear that in case of lease of an immovable
property from year to year, or for any term
exceeding one year, or reserving a yearly
rent has to be compulsorily registered
under Section 17(1)(d) of the Act of 1908.

15. In the instant case, reliance has
been placed upon a rent agreement dated
11.07.1990 of which Clause 3 reveals that
landlord is barred from initiating eviction
proceeding against the tenant meaning
thereby that lease is for a term exceeding
one year and is in perpetuity. Once the
period of lease exceeds one year, it
compulsorily needs to be registered both in
terms of Section 107 of the Act of 1882 as
well as Section 17(1)(d) of the Act of 1908.

16. Submission made by petitioner's
counsel that lease so executed was on
month to month basis, the registration was
not compulsory and document should have
been taken in evidence by trial court, is
totally against the averment contained in
Clause 3 of agreement which provides for
lease in perpetuity and exceeds period of
one year.

17. Reliance placed upon the decision
of Siri Chand (supra) and Ashish (supra)
are distinguishable from the facts of the
present case as in both cases relied upon,
the tenancy was on month to month basis
and the Court taking note of U.P.
Amendment which came into effect from
01.01.1977 and second paragraph of
Section 107 being substituted by U.P.
Amendment
proceeded
to
hold
that
registration was not compulsory and the
document could be read in evidence.
However, in the instant case, it is clear
from the reading of Clause 3 that tenancy
was not on month to month basis but the
lease was made giving blanket right to
tenant to use it without any authority to
landlord to evict him from the property so
leased out.

18. Thus, it could be safely said that
lease executed was for more than one year
and was needed to be compulsorily
registered under Section 17(1)(d) of the Act
of 1908. Moreover, Section 35 of Indian
Stamp
Act,
1899
provides
for
inadmissibility of an instrument not duly
stamped in evidence. Relevant provision of
Section 35 is extracted hereasunder:-

"35.
Instruments
not
duly
stamped inadmissible in evidence, etc.- No
instrument chargeable with duty shall be
admitted in evidence for any purpose by
any person having by law or consent of
11 All. Anil Kumar Vs. Ramraj & Ors.
1317
parties authority to receive evidence, or
shall
be
acted
upon,
registered
or
authenticated by any such person or by any
public officer, unless such instrument is
duly stamped or if the instrument is written
on sheet of paper with impressed stamp,
such stamp paper is purchased in the name
of one of the parties to the instrument :

Provided that- (a) any such
instrument shall, subject to all just
exceptions, be admitted in evidence on
payment of the duty with which the same is
chargeable, or, in the case of an
instrument, insufficiently stamped, of the
amount required to make up such duty,
together with a penalty equal to two per
cent of the deficient portion of stamp duty
for every month or part thereof, from the
date of execution of the instrument,
minimum being Rs. 100 ;

(b) where any person from whom
a stamped receipt could have been
demanded, has given an unstamped receipt
and such receipt, if stamped, would be
admissible in evidence against him, then
such receipt shall be admitted in evidence
against him on payment of penalty of one
hundred rupees by the person tendering it ;

(c)
where
a
contract
or
agreement of any kind is effected by
correspondence consisting of two or more
letters and anyone of the letters bears the
proper stamp, the contract or agreement
shall be deemed to be duly stamped ;

(d) nothing herein contained shall
prevent the admission of any instrument in
evidence in any proceeding in a criminal
court, other than a proceeding under
Chapter IX or part D of Chapter X of the
[Code of Criminal Procedure, 1973 (2 of
1974)] ;

(e) nothing herein contained shall
prevent the admission of any instrument in
any court when such instrument has been
executed
by
or
on
behalf
of
the
3[Government of the Union territory of
Jammu and Kashmir] or where it bears the
certificate of the Collector as provided by
section 32 or any other provision of this
Act and such certificate has not been
revised in exercise of powers conferred
under Chapter VI ;

(f) nothing herein contained shall
prevent the admission of a copy of any
instrument or of an oral admission of the
contents of any instrument, if the stamp
duty or a deficient portion of the stamp
duty and penalty as specified in clause (a)
is paid ; and

(g) any such instrument subject to
all just exceptions be registered or
authenticated on payment of the duty with
which the same is chargeable, or in the
case
of
an
instrument
insufficiently
stamped, of the amount required to make
up such duty.]"

19. Thus, I find that the trial court as
well as revisional court had rightly
proceeded not to admit in evidence the rent
agreement dated 11.07.1990 relied upon by
petitioner as the lease of immovable
property exceeded one year.

20. Now, coming to the second limb
of argument, it is admitted that notice was
served by refusal and both courts below
have recorded concurrent finding.

21. Counsel for petitioner had relied
upon the decision of co-ordinate Bench
rendered in case of Harish Chandra
(supra) to demonstrate that Postman was
never produced to prove the refusal.

22. Recently, the co-ordinate Bench of
this Court in Prem Bahadur Dalela vs.
Umeshraj Bali, S.C.C. Revision No. 157
of 2015, decided on 06.11.2019 after
considering in depth as to presumption of
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
notice and taking note of decision rendered
in case of Ugrasen vs. Parmeshwari Devi,
2014 (9) ADJ 356 held as under:-

"22. As far as the aforesaid
proposition is concerned, there is no
quarrel. However, the law in so far as the
presumption of notice is concerned has
also been considered by a co-ordinate
Bench of this Court in the case of Ugrasen
Vs. Parmeshwari Devi reported in 2014 (9)
ADJ 356. The question before the Court
was who has to prove the endorsement of
refusal was wrong. In other words, the
question to be decided was that whose
responsibility was to seek the production of
the postman to prove the endorsement of
refusal.

23. The aforesaid aspect was
considered in light of the statutory
provisions as well as various authorities on
the subject. The relevant portion of the
aforesaid
report
is
reproduced
hereinafter:-

7. Another relevant provision is
section 114, Illustrations (e) and (f), Indian
Evidence Act, 1872 (hereinafter referred to
as "Act, 1972") which reads as under:

"114.
Court
may
presume
existence of certain facts.--The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
events, human conduct and public and
private business, in their relation to the
facts of the particular case.

Illustrations

The Court may presume-

...

(e) The judicial and official acts
have been regularly performed;

(f) That the common course of
business has been followed in particular
cases;"

8. The third is Indian Post Office
Act, 1898 (hereinafter referred to as "Act,
1898"). Sections 3 and 14 thereof, relevant
for the purpose of present case, are
reproduced as under:

"3. Meanings of "in course of
transmission by post" and "delivery".--For
the purposes of this Act,--

(a) a postal article shall be
deemed to be in course of transmission by
the post from the time of its being delivered
to a post office to the time of its being
delivered to the addressee or of its being
returned to the sender or otherwise
disposed of under Chapter VII;

(b) the delivery of a postal article
of any description to a postman or other
person authorized to receive postal articles
of that description for the post shall be
deemed to be a delivery to a post office;
and

(c) the delivery of a postal article
at the house or office of the addressee, or
to the addressee or his servant or agent or
other person considered to be authorized to
receive the article according to the usual
manner of delivering postal articles to the
addressee, shall be deemed to be delivery
to the addressee."

"14. Post Office marks prima
facie evidence of certain facts denoted.-- In
every proceeding for the recovery of any
postage or other sum alleged to be due
under this Act in respect of a postal
article,--

(a) the production of the postal
article, having thereon the official mark of
the Post Office denoting that the article has
been refused, or that the addressee is dead
or cannot be found, shall be prima facie
evidence of the fact so denoted, and

(b) the person from whom the
postal article purports to have come, shall,
until the contrary is proved, be deemed to
be the sender thereof."
11 All. Anil Kumar Vs. Ramraj & Ors.
1319

10. Though in the three statutes
referred to above, the oldest one is Act,
1872 but in fact the provisions relating to
Post Office Act are older, going to 1866
when the first Post Office Act was enacted.
In the then British Indian Territory
governed by the British Government, postal
services were established by ap pointing a
Director, Post Office by the Governor
General in Council in order to regulate this
branch of public service and revenue, in
the light of experiences gained by English
postal legislation and development of Post
Offices. Commenting upon the Post Office
service in England, in Whitfield v. Lord he
Despencer, [(1778) 2 Cowp. 754.] Lord
Mansfield had said:

"The Post Master has no hire,
enters into no contract, carries on no
merchandise or commerce. But the post
office is a branch of revenue, and a branch
of police, created by Act of Parliament. As
a branch of revenue, there are great
receipts; but there is likewise a great
surplus of benefit and advantage to the
public, arising from the fund. As a branch
of police it puts the whole correspondence
of the kingdom (for the exceptions are very
trifling) under Government, and entrusts
the management and direction of it to the
crown, and officers appointed by the
crown. There is no analogy therefore
between the case of the Post Master and a
common carrier."

11. Following the above decision,
in a recent case, in Triefus and Co. Ltd. v.
Post Office, [(1957) 2 Q.B. 352.] it was
held that Post Office is a branch of revenue
and Post Master General does not enter
into any contract with a person who
entrusted, to the Post Office, a postal
packet for transmission overseas.

12. Presently also, the Post Office
service in India, with which this Court is
concerned, is not in the hands of any
private individual or corporate body but a
Department of Government of India and on
certain matters, it is regulated by various
Statutes including the Act, 1898.

13. I have referred to the above
two decisions in Whitfield (supra) and
Triefus and Co. Ltd. (supra) for the reason
that the system of Post Office in India has
been observed to be similar as it was in
England. The Apex Court referring to
certain provisions of Act, 1898, in Union of
India v. Mohd. Niazim, [(1980) 1 SCC 284
: AIR 1980 SC 431 : 1979 (5) ALR 230
(SC) (Sum.).] said:

"These are only some of the
provisions of the Act which seem to
indicate that the post office is not a
common carrier, it is not an agent of the
sender of the postal article for reaching it
to the addressee. It is really a branch of the
public service providing postal services
subject to the provisions of the Indian Post
Office Act and the rules made thereunder.
The law relating to the post office in
England is not very much different from
that in this country."

14. The aforesaid decision was
rendered considering the provisions in Act,
1898 which was enacted by repealing
previous Act of 1866, so as to consolidate
and amend the law relating to Post Office
in India.

15. The post office in India, thus,
is an institution established by a statute.
"Postage" required to avail of the postal
services has been defined in section 2(f) of
Act, 1898 as "the duty chargeable for the
transmission by post of postal articles".
Under section 4 the exclusive privilege of
conveying letters is reserved to the Central
Government with certain exceptions which
are not significant. Section 17 of the Act
says that "postage stamps" shall be deemed
to be issued by Government for the purpose
of revenue. The provisions of the Act
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate that the post office is not a
common carrier. It is not an agent of
sender of the postal article for reaching it
to the addressee. It is really a branch of the
public service providing postal services
subject to the provisions of Act, 1898 and
the Rules made thereunder. It is in this
context, section 14 of Act, 1898 would also
be a matter of relevance which says that
the production of the postal article, having
thereon the official mark of Post Office
denoting that the article has been refused,
or that the addressee is dead or cannot be
found, shall be prima facie evidence of the
fact so denoted. The Statute provides a
prima facie evidence of the mark given by
Postal Department on the postal article
sent by post regarding its correctness,
though the word "prima facie" shows that it
is liable to be disproved by adducing
evidence otherwise. Meaning thereby, mere
denial by the party in respect to whom
endorsement has been made by postal
agent otherwise, would not be sufficient
unless he adduces evidence to discredit
prima facie evidence in the shape of
endorsement made by postal department on
the article concerned. This provision read
with section 114 of Act, 1872 and section
27 of Act, 1897, makes the situation quite
clear.

16. It appears that in various
decisions, while considering the question of
service of notice, most of the times,
provisions of Act, 1898 and its implication
have been omitted even when the service
was sought to be effected by registered
post.

17. Initially the issue of service of
notice under section 106 of Transfer of
Property Act, 1882 (hereinafter referred to
as "Act, 1882") was considered by Privy
Council in Harihar Banerji v. Ramshashi
Roy. [AIR 1918 PC 102] The Court said, if
a letter, properly directed, containing a
notice to quit, is proved to have been put
into post office, it is presumed that letter
reached its destination at the proper time
according to the regular course of business
of post office and was received by the
person to whom it was addressed. The
presumption would apply with still greater
force to such letters, which the sender has
taken precaution, to register, and is not
rebutted, but strengthened by the fact that a
receipt for the letter is produced, signed on
behalf of the addressee by some person
other than the addressee himself. Here was
a case where service of notice was not
denied by all and one of the person has
admitted
its
service,
therefore,
a
presumption was drawn. So the facts of this
case makes it clear that the presumption
was rightly drawn.

18. In Sukumar Guha v. Naresh
Chandra Ghosh, [AIR 1968 Cal. 49.] a
Single Judge (Hon'ble Amresh Roj, J.)
referring to section 114, Illustration (f) of
Act, 1872, section 106 of Act, 1882 and
section 27 of Act, 1897 said that
presumption under section 27 of Act, 1897
can arise only when a notice is sent by
registered post while there may arise a
presumption under section 114 of Act, 1872
when notice is sent by ordinary post or
under certificate of posting. Both the
presumptions are rebuttable. When the
cover containing notice has been returned
to the sender by postal authorities, then
that fact is direct proof of the fact that the
notice sent by post was not delivered to the
party to whom it was addressed. Whether it
was tendered and, if so, to whom tendered,
remains a matter to be ascertained on
evidence.
If
acceptable
evidence
is
available that it was tendered to the party
personally, then such facts may bring the
service of notice within the second mode,
namely, tendered or delivered personally to
such party. If however, tender or delivery is
11 All. Anil Kumar Vs. Ramraj & Ors.
1321
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. Here what
I finds that when Court talks of evidence,
we read it in the context of section 114 of
Act, 1872. A registered envelop received
back from postal authority with the
endorsement of postman of "refusal" will
constitute a valid evidence to show that it
was served upon the addressee but he
refused to accept unless proved otherwise
and for that purpose examination of
postman for constituting a prima facie
evidence, further, would not be required, in
view of section 14 of Act, 1898. This
section 14 of Act, 1898 has been omitted
from consideration by the Court.

19. This Court in Wasu Ram v.
R.L. Sethi, [1963 AWR 472.] said:

"The
question
whether
a
communication sent through the post was
received by the address is one of fact, but
in many cases it may be difficult and
inconvenient if not impossible, to produce
the postal official who delivered the letter
or the money order. To obviate this
difficulty the Evidence Act permits certain
presumptions to be made under certain
circumstances, section 16 provides that
"when there is a question whether a
particular act was done, the existence of
any course of business, according to which
it naturally would have been done, is a
relevant fact". The illustration (a) to this
section explains that in a question "whether
a particular letter was despaired, the facts
that it was the ordinary course of business
for all letter put in a certain place to be
carried to the post, and that particular
letter was put in that place, are relevant".
Section 114 provides that the Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
events, human conduct and public and
proper business, in their relation to the
facts of the particular case. Illustration (e)
to this section says that "the Court may
presume that judicial and official acts have
been regularly performed"; and Illustration
(f) says that the Court may presume that
"the common course of business has been
followed
in
particular
cases".
The
combined effect of these two sections is to
raise a presumption that a communication
sent by post was received in the ordinary
course by the addressee, and if it was
returned
to
the
sender
with
the
endorsement "refused", the postman must
have tendered it but delivery could not be
made because of the refusal of the
addressee. These presumptions are based
on human experience and common sense.
Our experience tells us that millions of
letters which are posted are delivered in
due course to the address, though in
exceptional cases letters do get lost. The
onus of proof is on the person who asserts
that the abnormal happened in his case and
the communication sent by post did not
follow its normal course to destination."

20. It further held:

"Whenever a communication is
sent by post there is a presumption that it
was duly delivered or tendered. If the
communication is returned by the post
office with the endorsement "refused" the
presumption will be that it was tendered by
the postal authorities in their ordinary
course of business to the addressee who
refused. The strength of the presumption
will vary according to the fact of each case,
being strong in the case of registered
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
letters, and strongest in the case of money
orders and insured articles the delivery of
which cannot be made without observing
certain precautions which are prescribed.
Rules Under/Chap. VII of the Post and
Telegraph Guide provide that in case of
refusal the money order shall be returned
to the remitter with the endorsement
"refused". If the addressee states on oath
that he never received the communication,
the Court must decide after considering all
the surrounding circumstances, whether he
should be believed. The question is always
one of fact, though I would add as a matter
of plain common sense that a denial which
is not only bare but barefaced and made by
a person who stood to profit by his denial
and, therefore, had all the motive in the
word to deny, will not ordinarily weaken
the presumption."

21. The above view was followed
in Asa Ram v. Ravi Prakash, [AIR 1966 All.
519] and the relevant observation in para 3
thereof reads as under:

"3. Mr. Sinha then argued that a
presumption of refusal could arise only if
the endorsement ''refused' was proved by
evidence, and this could only be done by
producing the postman who made the
endorsement. I do not agree. If the landlord
deposes that he sent an envelop containing
the notice and that the same envelop was
received by him with the endorsement
''refused' which was not there before and
he
produces
the
envelop
with
the
endorsement, this is a sufficient evidence to
prove the endorsement. In this case the
respondent appeared as a witness and
proved the sending and the return of the
envelope. On this evidence the Court could
rely on the presumption authorized under
section 114 of the Evidence Act."

22. Thereafter, the issue came to
be considered by a Full Bench in Ganga
Ram v. Phulivati. [AIR 1970 All. 446.] One
of
the
three
questions
referred
for
consideration before Full Bench was
"whether it is incumbent on the plaintiff to
prove endorsement of ''refusal' on the
notice sent by registered post by producing
postman or other evidence in case the
defendant denies service on him?" Full
Bench considered this question referring to
provisions of all three Statutes, namely,
Act, 1872; Act, 1897 and Act, 1898.
Besides others, it also referred to Rule
64(1) of Indian Post Office Rules which
reads as under:

"64 (1). If the sender of a
registered article pays at the time of
posting the article a fee of one anna in
addition to the postage and registration fee,
there shall be sent to him on the delivery of
the article a form of acknowledgement
which shall be signed by the addressee or if
the addressee refuses to sign shall be
accompanied by a statement to the effect
that the addressee has refused to sign."

23. Having referred to various
provisions of Act, 1898 and Rules framed
thereunder, the Court said, when the
postmen or the clerks at the station of
destination are required to do and what
endorsements they are required to make,
all such acts are clearly provided in the
Statute. All such acts are done by them and
all such endorsements are made by them in
discharge of their offi cial duties. The
Court, thus, proceeded further and held
that a notice sent by registered post will be
entitled to draw a presumption regarding
due service of that notice vide Illustration
(e) and (f) of section 114 of Act, 1872. In
this re gard, the Court also referred to
section 16 of Act, 1872 and said that as a
propo sition, it cannot be disputed, when a
letter is delivered to an accepting or re
ceiving post office, it is reasonably
expected that in the normal course it would
be delivered to the addressee. That is the
11 All. Anil Kumar Vs.