The judgment establishes the importance of complying with the requirements of S.106 of the Transfer of Property Act for the validity of termination notices and the applicability of a 'contract to the contrary' to exclude compliance with S.106 of the T.P. Act.

This is an appeal by the plaintiff. The suit was for ejectment of the defendant-tenant from a building. It is a shop-room. The Kerala Buildings (Lease and Rent Control) Act is not applicable to the area where the building situates.

2. Normally, the tenant has to surrender the building. The only point that survived for the consideration of the courts below was whether there was a proper and valid termination of the tenancy by issuing a notice terminating the tenancy under S.106 of the Transfer of Property Act. The trial court decreed the suit, holding that there is no defect in the notice terminating the tenancy. The defendant filed an appeal. The appellate court allowed the appeal holding that there is no valid termination of the tenancy by a proper notice under S.106 of the T. P, Act. Now the plaintiff appeals.

3. I shall deal with the facts briefly. Ext. Al is the contract of lease. Ext. B2 is the notice sent to the defendant by the plaintiff terminating the tenancy. It is dated 24-4-1980. By the notice Ext. B2, the plaintiff wanted to terminate the tenancy with effect from 14-5-1980. The due date of payment of rent under the agreement by the parties is 15th of every month and that is admitted by the defendant. Ext. A3 is the reply to Ext. B2. It is not stated in Ext. A3 that no sufficient notice was given to the defendant. In the reply notice, the contention raised by the defendant is that there is no lease arrangement between the plaintiff and the defendant. Plaintiff has stated in the plaint that he required the building for his own occupation.

4. The point taken by the learned counsel for the respondent is that there is no valid and proper notice since there is evidence in the. case that notice in question has been received by the defendant only on 3-5-1980. He submits that Ext. B4 is a proof of this fact. Ext. B4 is the acknowledgement card. Further he submits that as per the notice, the tenancy stood terminated on 14-5-1980. It means the tenant did not get the required 15 days notice. I feel that the argument of the learned counsel for the respondent is effective and substantial.

5; The learned counsel for the appellant has necessarily to meet the point raised by the learned counsel for the respondent. He submits that the plaintiff has sent the notice by posting the notice on 25-4-1980, and if normal time required for reaching a letter by post to the addressee is taken, it can be presumed that the letter should have been reached within three or four days, from the date of posting. He submits that if this presumption is taken, the notice satisfies the requirement under S.106 T.P. Act. The learned counsel for the appellant further submits that the appellant can rely on S.114 illustration (f) of the Evidence Act read with S.27 of the General Clauses Act, (10 of 1897).

6. It has to be noticed that S.27 of the General Clauses Act makes it clear that the presumption engrafted in the section is subject to "unless the contrary is proved". Of course, the presumption is that there will be proper service, at the time at which the letter would be delivered in the ordinary course of post." True, the presumption under the section is not restricted to or limited to the presumption that merely such a letter has been posted but extends to its receipt by the addressee at its destination and at the proper time according to the regular course of business of the post office. But, the presumption afforded by the section is only a presumptive proof. In other words it raises a conditional or rebuttable presumption. What I want to say is that it is not a conclusive proof; in other words, it does not raise a conclusive presumption. By conclusive proof, what we understand in law is that, it is a fact possessing probative force of such strength as not to permit effective contradiction. The fact relied on as a fact of conclusive presumption, would amount to proof irrespective of the existence or non-existence of any other facts whatsoever w