Muhammad Hassan and Others vs Baidya Nath Sahay

Harries, C.J.—This is a defendants'' second appeal from concurrent decrees of the Courts below in favour of the plaintiff. On 2nd August 1900, one Mt. Makho Kuar executed a se-mukarrari lease in favour of Shaikh Ahmad Hussain of a four anna darmukarrari share in a certain village. The annual rent payable was Rs. 162, and this was to be paid in three instalments, namely Rs. 50 in the month of Pus, Rs. 62 in the month of Chait and Rs. 50 in the month of Jeth. It was further provided in this lease that if the tenant failed to pay three consecutive instalments, the lease was to be deemed to have been determined and the landlord was to have a right to re-enter and take khas possession. The present defendants-appellants are the heirs of the original lessee, Ahmad Hussain, whereas the plaintiff is a purchaser of the interest of Mt. Makho Kuar.

He actually purchased by a sale-deed dated 14th March 1934, and from the terms of that sale deed, it is clear that the tenants were in arrears at the time of the transfer. After the transfer to the plaintiff, the defendants failed to pay their rent, and on 8th June 1936, there were more than three consecutive instalments in arrear. On that date, a notice was served upon the defendants, stating that according to the terms of the agreement, the landlord had a right to re-enter and eject the defendants, and a similar notice appears to have been sent eight days later, namely on 16th June 1936. The plaintiff brought the present suit alleging that the defendants had broken the terms of the lease and that he had a right to enter and take possession of the property. He further claimed a sum of money as compensation for the loss sustained by the defendants'' failure to pay rent. Both Courts below came to the conclusion that the plaintiff was entitled to possession and compensation and decreed his suit.

In second appeal two points have been taken by Mr. Mitter on behalf of the defendants-appellants. First, it has been argued that the plaintiff in this case had waived his right to claim forfeiture of the lease. It is said that as there were previous arrears which apparently have never been paid, the plaintiff has waived for ever his right to re-enter. In short, the argument amounts to this, that if a landlord is a little indulgent to his tenant, he loses for ever the right to enforce a forfeiture clause in the lease. It is true that if after the landlord is aware of a cause of forfeiture he by some act recognizes the lease, he waives his right to claim forfeiture for that particular breach. For example, if there is a right of forfeiture in the lease for non-payment of rent and after the right to claim forfeiture has arisen, the landlord demands the rent and thus acknowledges that the lease is subsisting, it can be said that the landlord has waived the forfeiture.

That, however, does not mean that he for ever waived his right to claim a forfeiture. Waiver would only operate in respect of a particular breach. In the present case, it may be that the plaintiff or his predecessor waived the right to claim forfeiture for the earlier arrears; but there is nothing whatsoever to show that the plaintiff had ever acknowledged the lease to be subsisting after the arrears now complained of occurred. As I have pointed out, the notice served shows that the plaintiff no longer regards the lease as subsisting and has claimed forfeiture of it. There is nothing whatsoever to suggest that the parties ever agreed that future rights under this lease should be waived.

In my view, both the Courts below were right in holding that the plaintiff had not waived his right to forfeit the lease for the arrears complained of in this suit. The second and more substantial point taken in this appeal is that the landlord has no right under the Bengal Tenancy Act to claim a forfeiture for non-payment of rent. It was argued in the Court below that this lease was not a lease falling within the Bihar Tenancy Act; but in my view this is a lease governed by that Act. Its very terms show that it was in the nature of an agricultural lease which would fall within the Act. On behalf of the appellants it has been argued that there can be no ejectment for nonpayment of rent under the Bihar Tenancy Act by reason of Sections 10, 65 and 178(1)(c). Had there been no other provisions in the Act, the appellants'' contention would be well founded; but unfortunately for them there is an express provision dealing with this case, namely Section 179 of the Act. That Section is in these terms:

Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant.

The plaintiff''s predecessor was the holder of a permanent tenure in a permanently settled area, and this is not contested, and the lease granted is a permanent mukarrari lease, and, therefore, the transaction of leasing this property falls within Section 179. That Section makes it clear that with regard to this particular form of lease granted by a particular form of tenure-holder the provisions of the Act will not prevent the parties agreeing to what terms they think proper. In short, the Section permits the parties in this particular form of transaction to contract out of the provisions of the Act. Mr. Mitter''s argument has been" that as the other earlier Section to which I have referred, prohibit ejectment for non-payment of rent, Section 179 must be read so as not to conflict with the earlier Sections. Section 179 is by its terms an exception to the law as laid down in the earlier Sections, and that being so, any lease made in accordance with its provisions is void.

This point was expressly considered by a Full Bench of this Court in Moinuddin Mirza v. Surendra Kumar Roy AIR (1984) Pat 153. This Bench is bound by the Full Bench decision, and that ends the matter. In my judgment the parties to this particular transaction were at liberty to make their own terms whether such terms were consistent or not with the general provisions of the Bihar Tenancy Act. They were fully entitled to agree that the landlord should have a right to re-enter on non-payment of rent, and, therefore, the clause is perfectly valid and can be enforced by a suit at law.

In my judgment the lower Appellate Court was right in holding that this was a contract which was valid under the Bihar Tenancy Act and which could be enforced. There were three consecutive instalments of rent in arrear, and that being so, the plaintiff was entitled to re-enter and take-possession of the land. The decrees granted by the Courts below were, in my view, right, and accordingly this appeal fails and; is dismissed with costs.

Fazl Ali, J.

I agree.