Ramachandra Prabhu and Another vs Mahadevi alias Kunhi Thamburatti styled as Manaviyathan Valia Thamburatti of Kozhikkot Ambadi Kovilagam and Another

Chandrasekhara Aiyar, J.—S.A. Nos. 1308 and 1324 of 1944 and C.M. S.A. No. 228 of 1944. S.A. No. 1308 of 1944 has been

preferred by the defendants 12 and 13 and S.A. No. 1324 of 1944 by the second defendant. The second defendant stands in the shoes of the

original lessee Raricha Mooppan. Defendants 12 and 13 hold subordinate interests carved out from the original lease Ex. P-6, having become

entitled thereto under several transactions; in fact, they are sub-kanomdars, the original kanom having been created in favour of one

Venkataramayyar by the tenant under a deed dated 10th January, 1908.

The suit was instituted by the jenmis for recovery of possession and for arrears of rent due. The recovery of possession was sought on the

ground that the tenant denied the landlord''s title and there was in consequence a forfeiture of the tenancy. The District Munsiff held that the lease

evidenced by Ex. P-6 dated 3rd December, 1898, was governed by the Transfer of Property Act and that, as there Was no notice from the

landlord showing his intention to terminate the lease which is required u/s 111(g), no forfeiture was incurred, and therefore he gave a decree only

for rent. But, on appeal, the Subordinate Judge decreed the eviction finding that forfeiture has been worked out by the notice Ex. P-8, by the

tenant in answer to the landlord''s notice Ex. P-7. He took the view that the lease was not governed by the Transfer of Property Act, having been

granted for agricultural purposes.

The second defendant, who represents the interest of the original tenants, and defendants 12 and 13 who are sub-kanomdars from him have

preferred these two appeals. Mr. K. Kuttikrishna Menon stated that he was not pressing his second appeal, S.A. No. 1324 of 1944. This means

that the original tenant or the person standing in his shoes is''prepared to abide by the decree of the lower appellate Court holding that a forfeiture

has been incurred. If the tenancy itself is forfeited in this manner, whether persons in the position of defendants 12 and 13 who hold derivative

interests under the tenant by way of kanom or assignment, can be heard to say that their interests are not affected will depend upon the principle of

law embodied in Section 115 of the Transfer of Property Act, though the Act will not in terms apply to this case in view of the finding of the lower

Court. But it is unnecessary to pursue this point further as the objection was not seriously pressed by Mr, Govinda Menon.

The only question that remains is whether the denial has worked out forfeiture, as held by the Subordinate Judge. It was argued for the

appellants that the denial in Ex. P-8 did not work out any such forfeiture because it cannot be said to be a denial of the landlord''s title in any matter

of "" record "" as the word has been understood and interpreted by the Judicial Committee of the Privy Council. It is clear law that, in cases in which

the Transfer of Property Act does not apply, clear and unambiguous denial of the landlord''s title would be enough to worlc out a forfeiture and to

support a suit in ejectment of the tenant and that it is not necessary for the landlord to do, something showing an intention: to determine the lease as

the result of the denial. There can be.no doubt that Ex. P-8 contains and constitutes such a denial. Is it necessary that it should be contained in

some "" record ""such as a judicial proceeding? It is possible having regard to some antique technicalities peculiar to Real Property law that in

England in ancient times some qualification about the place where the denial is to be found was considered necessary. Whether it should be insisted

on at the present day when most of these technicalities have been wiped away is itself a matter of doubt; but whatever that may be, I see no

ground, and there is really no authority, for holding in India that, before there can be a forfeiture, the denial of the landlord''s title to work out

forfeiture of the tenancy must be embodied in a judicial proceeding. I am not prepared to read Broomfield j.''s observations in Rachotappa

Ishwarappa v. Konher Annarao I.L.R.(1934)59 Bom. 194 as imposing any such condition, or Maharaja of Jeypore v. Rukmini Paltamahdevi

(1918) 36 M. L.J.543 : L.R. 46 IndAp109 : ILR 43 Mad. 589 as involving any such position. In the Privy Council case, denial before the suit was

not a denial of the landlord''s title but a denial of the terms of tenancy as set up by the landlord. The denial here relied, on as working out a

forfeiture was a denial of the title itself. Padmanabhaya and Others Vs. Ranga and Others, was a case where the denial was a notice before the

institution of the suit and this was held enough to work out the forfeiture. In the later decision in Korapalu v. Narayana (1912) 53 M.L.J.

315:1.L.R.38 Mad. 445 this particular question was not considered, though criticism was directed by Sadasiva Aiyar, J., against the view that in

such a case the landlord had to elect between one of two courses.

It was objected that it was not open to the tenant to raise the question now as they had not in their written statement pleaded anything as to Ex.

P-6 entailing forfeiture of tenancy. The objection is however groundless not merely because both the Courts have allowed the tenant to raise the

point about the insufficiency of Ex. P-6 to bring about any such result but also because it is a pure question of law which involves no further

investigation of facts.

The result is that both the second appeals Nos. 1308 and 1324 of 1944 are dismissed with costs of the first respondent. C.M.S.A. No. 228

which arises out of the renewal application must also be dismissed, but without any order as to costs. No leave.