Hiranandan Ojha and others vs Ramdhar Singh and others

Das, J.—This appeal arises out of a suit instituted by the appellants against the respondents for possession of certain lands specified in the plaint. The plaintiffs are the landlords and the mukarrari patta executed by the predecessors-in-title of the plaintiffs in favour of the predecessors-in-title of the defendants provided that in default of payment of three instalments of rent the mukarrari shall be null and void. It is important to remember that the mukarrari was granted before the enactment of the Transfer of Property Act.

The judgment of the learned Subordinate Judge is not quite clear on the point whether there has been a default in the payment of three instalments of rent. In one portion of his judgment he recorded the finding that there was no agreement between the parties as to the instalments in which the rent was payable. But then he came to the conclusion that S. 114 of the Transfer of Property Act protected the defendants from ejectment inasmuch as they deposited the rent in Court for the years 1322-1325.

Reading the whole judgment, it appears to me that the learned Subordinate Judge decided that the plaintiffs had incurred forfeiture; but that the case was one in which the defendants should be relieved against the forfeiture. In the result he declined to grant a decree for ejectment as against the defendants.

In this Court it was argued by Mr. Naresh Chandra Sinha on behalf of the appellants that the case was not one of forfeiture u/s 114 of the Transfer of Property Act, but one of nullity putting an end to the subject-matter of the lease which no act of the Court could restore to the defendants. Mr. Sinha argued that the English Law has always recognized a distinction between a condition of forfeiture and a clause of nullity.

He admitted that where there is a proviso for re-entry on breach of a tenant''s covenant to pay rent, then on the failure to pay such rent the tenant incurs forfeiture which the Court has a discretion to relieve against; but he contended that when the lease provides that on failure to pay rent the lease shall be null and void the clause is one of nullity and there is no power in the Court to restore to the tenant that which has come to an end by the express agreement between the parties. The English Law undoubtedly did recognize a distinction between a condition of forfeiture and a clause of nullity but whether it does still maintain that distinction is open to some doubt : Bowser v. Colby (1841) 1 Hare. 109=11 L. J. Ch. 132.

Now the distinction rested on this; the proviso for re-entry being a mere form of security to the landlord for that which the landlord has reserved to himself in the lease, the Court will always treat it as a security and allow redemption if the arrear of rent and the cost be brought into Court within a certain time, the Court acting on the analogy furnished by mortgage action and on the principle that, if the landlord has his rent paid him at any time, it is as beneficial to him as if it were paid upon the prescribed day. But where there is no proviso for re-entry and the parties agree that on breach of a certain condition the lease shall absolutely cease and be void, then on the happening of the condition there is no longer any subject with which the Court can deal or which can be restored. That was undoubtedly the view which at one time prevailed in England.

But as has been pointed out in George Henry Davenport v. The Queen (1878 ) 3 A. C. 115=47 L. J. P. C. 8=37 L. T. 727 in a long series of decisions the Court construed clauses declaring in terms, however clear and strong, that the lease shall be void on breach of conditions by the lessees, to mean that they are voidable only at the option of the lessors.

But whether void or voidable, the result ought to be the same so far as we are concerned in the present case, because it is conceded that the plaintiffs, so far as the present breach is concerned, have not elected to treat the lease as subsisting.

Now whether the distinction that obtains in England between a condition of forfeiture and a clause of nullity extends to this country is open to grave doubt. So far as the legislature is concerned, it has not recognized the distinction in Section 114 of the Transfer of Property Act. That section provides that :

"Where a lease of immoveable property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit, or give such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture : and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."

It may be argued that there is nothing in Section 114 to imply that the Court can relieve the lessee even when the lease has become void under the terms of the lease and the lessor does not elect to treat it as subsisting. In my opinion there is, if we refer to the definition of forfeiture in Section 111 of the Act.

A forfeiture according to Section 111 of the Act is incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter or the lease shall become void and Section 114 gives power to the Court to relieve against the forfeiture, which must mean forfeiture as defined by Section 111 of the Act. No distinction has therefore been recognized in the Transfer of Property Act between a condition of forfeiture and a clause of nullity.

It was argued that this case ought not to be governed by the Transfer of Property Act. That may be so; but as the distinction has not been recognized in any of the cases which have been decided in this country, I am not prepared to say that it extended to this country.

That distinction rested in England on very technical rules of conveyancing, and it is open to us to take the view that the rule formulated in Section 114 of the Transfer of Property Act gave effect to the existing law in the country. The question is not free from difficulty; and I am not prepared to dissent from the view which has been taken by the learned Subordinate Judge.

I would dismiss the appeal; but, in the circumstances, without costs.

The cross-objection was not pressed and is dismissed.

Adami, J.:-

I agree.