ORDER
Shiv Dayal, J.
1. The respondent instituted a suit against the appellant for ejectment and arrears of rent. The trial Judge dismissed the suit as regards ejectment but passed a decree for Rs. 80/-, i.e. two months' arrears of rent upto October 31, 1955. The suit was instituted on November 7, 1955. The lower appellate Court has now passed a decree for eviction also.
2. In the second appeal it is not disputed that the defendant was in arrears of rent for the months of September and October 1955. The main contention is that no notice was validly served on him under Section 106 of the T. P. Act. It was urged in the plaint that the landlord gave a notice on August 16, 1955, but it was returned to him. He issued a second notice on the 26th September but that too came hack. These two notices were sent by post. The plaintiff then issued a third one which he personally delivered on the 26th September to the defendant's son Baikunth Nath Gupta. It is urged by Shri Inamdar that the service of the third notice was not according to law. Section 106 provides the following modes of service:
'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 servant at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
The whole stress is on the word 'residence'. It was the case for the defendant that at the particular time when the notice was delivered to his son, he was in Saharanpur. The learned appellate Judge has held that there was nothing to show that the defendant had relinquished his Lashkar residence. Shri Inamdar relies on the decision in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, where it is held :
'The personal tender or delivery of the notice may take place anywhere; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. In the case of joint tenants each is intended to be bound, and service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the Other joint tenants.'
That case has no application here. There the meaning of the word 'residence' was not in question.
3. Another case cited to me is Gokulchand v. Shib Charan, 13 Ind Cas 59 (All). There it was held that if a notice for ejectment was delivered by the postal peon to a person other than the defendant at the defendant's 'shop' where he did not reside it was not proper service. That decision also does not apply to this case. In the present case the only thing to be seen is whether the suit house in Daulatganj where the third notice was delivered to his son was or was not the tenants' 'residence'.
4. It is conspicuous that Manoharlal stated to the Court in cross-examination that he was residing alone at Saharanpur and the other members of his family, namely his wife, his widowed sister, his widowed brother's wife, his three sons (including Baikunthnath, his eldest son) and his three unmarried daughters were all living in the suit house. If is also worthy of note that the defendant has described himself at the foot of the written statement as 'Manoharlal atmaj Nanneemal Vaishya niwasi Daulatganj Lashkar'. The suit house is situated in Daulatganj Lashkar and it is not the defendant'scase that he had any other house in that locality. The learned counsel's explanation that the defendant had to copy out his description from the plaint docs not appeal to me.
5. I am clearly of the opinion that an established home where a person's wife and children live is undoubtedly his residence for the purpose of Section 106 T. P. Act, even though he may be employed elsewhere. A place is a person's residence if he has lived there and has freely exercised his intention of remaining there permanently or for a length of time. If the defendant's family was living in the disputed house at Daulatganj it was undoubtedly his residence even though he was not physically present there at the particular moment.
In Srinivas Moorthy v. Venkata Varada Ayyangar, ILR 29 Mad 239, it is observed at page 275,'the expression 'residence' does not impart anypermanency of residence'. In Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670, it is held thatresidence means 'where a person eats, drinks andsleeps or where his family or his servants eat, drinkand sleep' (see also Kumudnath v. Jatendranath,ILR 38 Cal 394).
6. It is stated in Woodfall on Landlord and Tenant that it is sufficient to leave a notice to quit at the tenant's dwelling house with his wife or servant and such service is sufficient although the notice does not actually reach the tenant's hands. And it is further stated at page 1039 (25th Edn.).
'If the person in whom the possession is legally vested as tenant docs not personally occupy the premises it seems that a person whom the tenant leaves in physical possession to manage and control the premises may be deemed his agent for receiving service of a notice to quit.'
7. In my view the principle underlying the second paragraph in Section 106 of the Transfer of Property Act is that, on the one hand, the notice to quit must become known to the tenant and, on the other, the landlord must not be put to any harassment in effecting the service of the notice. The various modes prescribed therein are founded on the ordinary course of human conduct from which it can be inferred that on service on an adult male member of the family, it must be deemed that the notice will be passed on to the tenant. The same appears to be the object of Order 5 Rule 15 C. P. C. which provides that service of summons may be made 'on any adult male member of the family of the defendant who is residing with him.' In Intumiah Mistry v. Durbuksh Bhuiyan, ILR 42 Cal 67 : (AIR 1914 Cal 845), since it was found that a notice was served under provisions of Rule 15 and Rule 16 of Order 5 C. P. C. and the defendant had an opportunity of hearing as he was in communication with the members of his family both before and after the service, it was held, that the service was sufficient and the ex parte decree could not be set aside.
If service of summons of a suit, instead of the third notice, had been effected on Baikunth Nath Gupta and it was bound to be held as sufficient service, I see no reason why such service of the notice to quit must not be held to he sufficient and proper within the meaning of Section 106 of the Transfer of Property Act. In Kedarnath v. Madhu Sudan Das, AIR 1923 Cal 682, it was held that under Order 5 of the Civil P. C. substituted service was permissible only when the attempt to effect personal service had failed; but under Section 106. Transfer of Property Act, service may be effected in one or other of the modes prescribed.
8. The appellant did not specifically plead in the written statement that lie had relinquished his residence at Daulatganj before the service of the notice on his son. Evidently he could not take that stand for it would perhaps have been an additional ground for eviction. It has come in evidence that he had gone out in search for an employment. But even assuming that he had another residence in Saharanpur, it does not imply lie ceased to have residence in the suit house. The learned Additional District Judge has very rightly observed that a person ran have more than one place of residence. It can be amply supported by the observations in Attorney General v. Coote, (1817) 4 Price 183, that it is no uncommon thing for a gentleman to have two permanent residences at the same time in either of which he may establish his abode at any period and for any length of time.
In Bailey v. Bryant, (1858) 28 LJ QB 86, a person who resided in a house in London only about three months in a year while the remaining period of the year he stayed in his country house, he was held to dwell in London within the meaning of the City of London Small Debts Courts Act, 1852. (Mohan Singh v. Lajya Ram, AIR 1956 Punj 188, Juharimal v. Liladhar, AIR 1949 Bom 304 and Shit Monshi Verjang v. Sha Jivraj Mandan, AIR 1052 Kutch 58, may also be referred to).
9. For all these reasons I do not see any error in the judgment of the first appellate Court. The third notice was delivered to the defendant's son, admittedly an adult member of the family, and I hold that even if the plaintiff was actually in Saharanpur on the date when it was delivered of to his son, such service fulfilled the requirement of Section 106 T. P. Act.
10. It is then maintained by the learned counsel that the plaintiff waived his notice by accepting rent on November 2, 1955. The argument is that although the landlord accepted rent which had fallen due before the notice, he further wrote in the receipt the words 'Kiraya Chalu' and from that it is sought to be inferred that he waived his notice and accepted the continuance of the tenancy. On a perusal of the receipt (Ex. D. 4) I find that this contention is devoid of force.
In that receipt the landlord has acknowledged payment of Rs. 80/- on account of rent from May 1, 1955, to August 31, 1955, that is Rs. 160/- and has said at the end, 'Dinak 1-9-1955 se kiraya chalu lena baqi raha'. That only means that the landlord recorded the fact that in spite of the payment of Rs. 160/- the tenant was still in arrears of rent from September 1, 1955. This in my opinion, cannot amount to a waiver of the notice or to any intention to continue the tenancy. The landlord had already given notice of his intention to sue and, after receiving the said amount of rent on the 2nd November, he readily instituted this suit on the 7th November, 1955.
11. This appeal is without substance and is dismissed in limine.