Chotu Mia vs Mt. Sundri

Shearer, J.—This second appeal, which is by the plaintiff, arises out of a suit to recover possession of certain land which was leased trat by the predecessor in interest of the plaintiff to the ancestors of the defendant on the ground that there has been a forfeiture of the lease. An ancestor of the defendant, one Sita Ram, was let into possession of the land on 16th June 1861 and then executed an unregistered sarkhat in favour of the predecessor in interest of the plaintiff. It is unnecessary to set out the terms of this sarkhat as the ground on which possession was sought to be recovered was that there had been a disclaimer by the mother of the defendant of the plaintiff''s title as landlord. The plaintiff, it appears, sued the mother of the defendant for arrears of rent and in this suit the mother of the defendant, on 27th May 1936, put in a written statement in which she denied that the plaintiff was her landlord. The written statement is not before us and the argument has proceeded on the assumption that the Courts below were correct in holding that what the mother of the defendant there said constituted, as a matter of law, a disclaimer.

The question that now arises is whether or not there was a waiver of the forfeiture by the plaintiff when he accepted rent from the defendant on 25th November 1938. The rent suit was decreed on 28th January 1938, and, subsequently, on 10th November 1938, the plaintiff sent a notice in writing to the defendant requiring her to vacate the land on or before 2lst November 1938. In this notice the plaintiff said that a sum of Rs. 2 was due to him on account of rent for the period up to 27th May 1936, and that for the period from 28th May 1936 to 7th November 1938 he claimed a sum of Rs. 7-5-0 "by way of damages." Apparently, in consequence of this notice, the defendant remitted a sum of Rs. 9 by money order to the plaintiff and, on 25th November 1938, a son of the plaintiff accepted payment. The suit out of which this second appeal arises was instituted on 17th January 1989. The Courts below have both come to the conclusion that in accepting payment of the money the son of the plaintiff acted as his agent and. wjth his authority. The question as to whether or not there has been a waiver of the forfeiture must be decided with reference to the provisions contained in Section 112, T. P. Act, or to be more strictly accurate, as the sarkhat came into existence in 1861, with reference to the rule of English law to which that section gave statutory effect. Proviso 2 to Section 112 states that

where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver

and would seem to embody the rule laid down in Doe d. Moreoraft v. Meux (1825) 1 Car. & P. 347. It appears to me to follow by necessary implication that where rent, which has become due since the forfeiture, is accepted prior to the institution of a suit in ejectment, that amounts, as a matter of law, to waiver. The forfeiture in this case occurred on 27th May 1936 when the mother of the defendant in her written statement in the rent suit denied the plaintiff''s title. The amount of rent then due by the mother of the defendant was Rs. 2 and as the son of the plaintiff accepted a sum of Rs. 9 it is clear v that rent to the amount of Rs. 7 which had become due since the forfeiture was accepted. All that can, I think, be said on behalf of the plaintiff is that as, in the notice which he sent to the defendant he said that a sum of rupees 7-5-0 was due to him by way of damages for use and occupation, it ought to be presumed that in accepting the money order his son accepted Rs. 7 out of the Rs. 9 which was remitted not as rent but as damages for use and occupation. The money was, however, remitted as rent and under the form of money order used for that purpose and the defendant in making the payment undoubtedly intended it as a payment of rent. In Croft v. Lumley (1858) 10 E. R. 1459 in which a question of precisely this kind arose it was held that what was of importance was what the lessor did and not what he said and that although he received payment on the understanding that it was to be regarded as damages for use and occupation, or mesne profits, it nevertheless operated as a waiver of the forfeiture. Baron Channel said:

The party paying the money had, in my judgment, a clear right to appropriate it. He distinctly paid the money as rent. He refused to pay it otherwise than as rent. Mr. Martelli refused in language to receive it as rent; but he did take it. What he did, not what he said, was in my humble opinion the all-important matter. He should have declined to take the money at all, if he meant to elect to proceed for a forfeiture.

Baron Watson said this : "Mr. Martelli took the money up, making the observation that he would take it for the occupation. In my opinion he received it as it was tendered, viz., as rent. It was not offered as for use and occupation, or mesne profits; indeed, it could not be, as the amount or value of the occupation''had not been ascertained. The money was tendered as rent, and being received, it is the receipt of rent, and therefore I am of opinion that there was a waiver of any of the supposed forfeiture.

The decision in Croft v. Lumley (1858) 10 E. R. 1459 was followed by their Lordships of the Judicial Committee in Davenport v. Reg (1878) 3 A.C. 115 and that decision in its turn has been followed by the Calcutta High Court in Kali Krishna v. Fuzle Ali 9 Cal. 843. It has been urged that even if the plaintiff or his son accepted rent from the defendant on 25th November 1938 the rent so accepted had accrued due prior to the issue of the notice on 10th November 1938. It is also pointed out that in that notice the defendant was called on to vacate the land on or before 2lst November 1938. [This, however, is, in my opinion, immaterial. The provisions contained in Section 112 make it, I think, clear that acceptance of rent which has accrued due subsequent to a forfeiture and prior to the institution of a suit in ejectment operates as a waiver of the forfeiture. In the view which I take of the matter, I am supported by two decisions of the Calcutta High Court : Motilal v. Pure Jambad Colliery 44 C. W. N. 1109 and Basanta Kumar v. Secy, of State AIR 1920 Cal. 655. In the latter of these cases the rent which was accepted had, no doubt, accrued due subsequent to the issue of a notice to quit, but in the former the rent which was accepted had accrued due since the forfeiture and prior to the issue of the notice although the actual acceptance was subsequent to the service of the notice. This decision is thus exactly in point and it is important to notice that it is a decision of 1940, that is, after s. Ill (g), T. P. Act, was amended in 1929.

This case has been referred to a Full Bench as Eowland J. was of opinion that there was a conflict between two decisions of Divisional Benches of this Court, one in Upendranath Mukherji v. Dubeswar Lal Singh A. I. R. 1931 Pat. 240 and the other in Shiva Prasad Singh v. Mandira Kumari Debi A. I. R. 1940 Pat. 478. With the greatest respect, however, I am of opinion that each of these cases was rightly decided and that neither of them is of any great assistance to us in deciding the question that arises in this appeal. In 21 P. L. T. 2578 the plaintiff sought to recover possession of certain land which had been leased out to the husband of the defendant in 1325 B. S. on the ground that, in contravention of a term of the lease, it had been let out for building purposes. The husband of the defendant, who had so let it out,'' died in 1338 B. s. and for some years thereafter the plaintiff accepted rent from the defendant. On 6th Agrahayan 1341 B. s. the plaintiff served a notice on the defendant calling on her to vacate the land on or before 1st Pous 1341 B. s. As she did not vacate the land, the plaintiff instituted, a suit to evict her and in this suit he asked in the alternative for a decree for arrears of rent at the rate of Rs. 6 per katha which was the prevailing rate for homestead land. The suit was dismissed on the ground that there had been a waiver of the forfeiture and in dismissing it Harries C. J. said:

Acceptance of rent accruing due after a forfeiture amounts to a waiver, and the giving of a notice to quit premises also amounts to a waiver in this case, because the giving of the notice recognized the continuance of a tenancy.

It will be observed that the learned Chief Justice was careful to say that the giving of a notice to quit amounted to a waiver of the forfeiture in that particular case and for the proposition that the giving of a notice to quit may, in certain circumstances, operate as a waiver of a forfeiture there is authority in an English decision Gregory v. Wilson (1852) 9 Hare 683. The head-note to the decision which has been quoted by Eowland J. is, perhaps, to some extent misleading but the decision itself and the grounds on which it was based were undoubtedly correct. AIR 1931 Pat. 2407 was, it is important to notice, not a suit in ejectment, but a suit to recover arrears of rent due under a mining lease. The judgment is a very brief one and in order to understand it I have had to refer to the paper book. The defendants, it appears, were let into possession of the premises under a mining lease executed on 28th March 1922. One of the provisions of this lease was that a sum of Rs. 375 should be paid on 1st September and 1st March in each year as mkiimum royalty. On 24th March 1924 the plaintiff wrote a letter to the defendant in which he pointed out that "the rent and royalty of the above coal lands had not been paid" and went on to say:

please note that I shall re-enter the property noted above on 1st April 1924 for non-performance of the covenants under the terms of the lease executed by you.

The defendants resisted the claim made in the suit for the minimum royalty said to be due on 1st September 1924 and 1st March 1925 on the ground that the lease had been determined by this notice to quit and in consequence they were not liable. This argument had been rejected by the lower appellate Court on the ground that there had been a waiver of the forfeiture, the waiver, apparently, in its view, consisting in this, that after service of the notice the plaintiff had again demanded rent by instituting the suit. Ross J., in allowing the appeal, said:

But after he had. once determined the lease, it was not open to him to waive the forfeiture. The forfeiture is the result of the act of the tenant which may be waived by the landlord; but if, instead of waiving the forfeiture, he determines the lease, as in this case he has clearly done, then no question of waiving the forfeiture remains.

The defendants had alleged that they had never got possession of the land and, although the Courts below had found against them on this point they had also found that they had never actually raised any coal or worked the mine. But for the receipt of the letter which the plaintiff wrote on 24th March 1924 the defendants could or might have raised coal after 1st April 1924, but, in point of fact, they did nothing at all on the premises. The plaintiff was thus, I think, in any view of the matter, estopped by his own conduct from recovering rent after 1st April 1924. A notice to quit had been served and except with the express or implied consent of both parties the notice could not be waived and the lease could not be revived. The suit was a suit to recover arrears of rent and not a suit in ejectment and it is only in a suit of the latter description, that any question of a forfeiture having been waived, can possibly arise. I do not think myself that Ross J. intended to lay down more than that and as he was deciding a case which occurred prior to 1929 when s. in (g), T. P. Act, was amended. Rowland J. must be in error in supposing that the observations of Ross J., which I have just quoted, are an authority for what he considered to be a possible construction of the section as it now stands. After pointing out that a lease is not rendered void by a forfeiture but merely voidable Rowland J. cited two English decisions in which it was laid clown that once a lessor had exercised his option and avoided a lease on the ground of forfeiture, the lease is put an end to, and cannot, be revived. The observations made in these two cases were, however, based on the earlier decision in (1846) 15 M. & W. 71810 and it is necessary to bear in mind what exactly the facts in that case were. It was an action to recover rent due under a mining lease and the half-yearly rent sought to be recovered was said to have fallen due on 29 th September 1845. Now, on 19th May 1845, the plaintiff had served on the lessee a declaration in ejectment, corresponding under the procedure then in force to a statement of claim delivered-after the issue of a writ, claiming possession of the premises on the ground of a forfeiture by reason of the breach of certain covenants in the lease. The lessee, in the first instance, resisted the action but later was permitted to withdraw his plea and, although it did not appear that the lessor had taken possession of the premises, it was conceded that the lessee had not done anything on them since July 1845. The action to recover the half-yearly rent due on 29th September 1845 was commenced in January 1846. In dismissing the action Parke B., no doubt, said that

the bringing of an ejectment for a forfeiture, and serving it on the lessee in possession, must be considered as the exercise of the lessor''s option to determine the lease; and the option must be exercised once for all.

But he also went on to observe:

for after such an act, by which the lessor treats the lessee as a trespasser, the lessee would know that he was no longer to consider himself as holding under the lease, and bound to perform the covenants contained in it, and it would be unjust to permit the landlord again to change his mind, and hold the tenant responsible for the breach of duty after that time.

The opinion has been expressed more than once that some of the observations made by Parke, B., in Jones v. Carter (1846) 1 S M. & W. 718 went somewhat too far. For instance, in Dendy v. Nicholl (1858) 4 C. B. 376 Willes J. remarked a propos of the proposition laid down in Jones v. Carter (1846) 15 M. & w. 718 that "all that is now exploded." In that case, an action to recover rent due was brought and subsequently an action in ejectment was brought and although the actual payment of rent was not made until after the institution of the action in ejectment that action was dismissed. The ratio decidendi was that the claim for rent operated as a waiver of the forfeiture. (1846) 15 M. & W. 71810 and other decisions based on it and (1858) 4 c. B. 37611 were all reviewed in Evans v. Wyatt (1881) 43 L. T. 176. Lindley J. there pointed out that in an action in ejectment on the ground of a forfeiture the question at issue was not whether the lessor had made his election and the lease could not be set up again, but whether there was anything which prevented the lessor from recovering possession of the premises demised and he went on to say that when rent, which had accrued due since the forfeiture, had been accepted by the lessor, that might not perhaps always operate as a waiver of the forfeiture, but, if it did not, might be evidence of an agreement for a new tenancy on the same terms as the old one and so be a bar to the suit. The facts in (1846). 15 M. & w. 71810 were analogous to those in A. I. R. 1931 Pat. 2407 and the proposition which Row-land J. thought might be deduced from the latter decision and the English, decisions he cited, the observations in which were based on (1846) 15 M. & W. 71810 was that by serving notice under cl.-(g) of s. ill the lessor made his election to avoid the lease and that any subsequent acceptance of rent by him could not operate as a waiver of the for-feiture. But, as I have already said, Ross J. cannot have had Section 111(g), as it now stands, in his mind and as to the English decisions on the doctrine of election it is enough to point out that the expression invariably used in them is that the lessor "must do some act of an unequivocal kind which cannot be revoked indicating his intention to avoid the lease." The service of a notice of the kind required by S.111(g), is however clearly not such an act. In any case, the question that arises here, namely, whether the acceptance by a lessor, prior to the institution of a suit in ejectment, of rent which has accrued due subsequent to a forfeiture, operates as a matter of law as a waiver of the forfeiture, must be decided in this country by reference to the principles underlying Sections ill and 112 of the Act. The words in Section 111 which we have to construe are:

A lease of Immovable property determines.... by forfeiture, that is to say, .... in case, the lessee renounces his character as such.... by claiming title in himself.... and gives notice in writing to the lessee of his intention to determine the lease.

The opening words, no doubt, seem to imply that the lease comes to an end as soon as the notice is given, but the concluding words imply that something more, such as an actual entry or the institution of a suit in ejectment, is required to be done by the lessor to end it. The expression frequently used by conveyancers in England was that on breach of covenant the lease "shall be determined and be utterly void." Nevertheless, the Courts construed the word "void" as meaning "voidable at the option of the lessor." Unless Section 111(g) is to be construed as meaning that, even after service of the notice, the lease is still voidable and not void there will be a conflict between it and Section 112. That section, as I have already said, makes it plain that acceptance of rent which has accrued due since the forfeiture operates as a waiver of the forfeiture unless a suit in ejectment has already been instituted. The reason why Section 111(g) was amended in 1929 was that there had been a conflict between the Bombay High Court on the one hand and the High Courts of Allahabad and Calcutta on the other as to whether a lessor, before instituting a suit in ejectment on the ground of a forfeiture, was required to give notice to the lessee or otherwise do some act indicating his intention to avoid the lease. The Bombay High Court in Isabali Tayabali Vs. Mahadu Ekoba, took the view, following certain English decisions that the mere institution of a suit in ejectment constituted sufficient manifestation of the landlord''s intention to determine the lease. The Allahabad High Court in Shib Charan Das Vs. Kharka and Another, and the Calcutta High Court in Nowrang Singh v. Janardan Kishore Lal Singh AIR 1918 Cal. 969 took the view that it was incumbent on. a lessor before instituting a suit in jectment either to give the lessee formal notice to quit or at least to make a demand for possession either orally or in writing. In amending Section 111(g) in the manner it did the Legislature very probably had in mind the piovi-sions contained in Section 146, Law of Property Act, 1925 (15 George v, oh. xx). Sub-section (1) of that section states:

A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice....

Sub-section (8) of the section makes it clear that even after the service of such a notice the forfeiture may be waived by the lessor. As I have already said the decision of the Calcutta High Court in 44 of Motilal v. Pure Jambad Colliery 44 C. W. N. 1109 is exactly in point in this case. I respectfully agree with that decision and would follow it and dismiss this second appeal with costs.

Chatterji, J.

I agree.

Fazl Ali, C.J.

I agree.