Sreemutty Mon-Mohini Dassi vs Kalidas Ahiri

Maclean, C.J.—I should have been better satisfied if in this case I could have seen my way to hold that the Defendant has not renounced her character of lessee by claiming title in herself, and so rendered the lease liable to forfeiture, as I cannot but feel that she has been badly advised in the matter, but in my opinion, what she has done, can leave but very little doubt in one''s mind that she has denied the Plaintiffs title as lessor, and claimed title in herself. The first question is whether by her defence in the suit in the Small Cause Court she did deny the Plaintiff''s title. I think that if her defence in that suit had been confined to denial of tenancy under the Plaintiffs, seeing that the Plaintiffs were there suing as shebaits, there would have been considerable force in the Appellant''s contention that it was a denial of the tenancy under the then two Plaintiffs, and not of the present Plaintiff alone, but seeing that the defence goes on to say, in effect, that she was not any one''s tenant and was in occupation "as owner," to say nothing of the denial as to the payment of any rent or indebtedness, and that the present Plaintiff was one of the Plaintiffs in that suit, and was there described as heir, I fail to see how such contention can properly prevail. Seeing the special protection which the Court of this country throws around a purda-nashin lady, as the Appellant is, 1 have looked to see whether that defence can be properly regarded as really her own. The evidence proves that, after it had been explained to her, she executed the warrant of attorney, which is set out at page 31 of the paper-book, which authorized the pleaders to do what was necessary to defend the cause, and that the instructions, upon which the defence was based, were given by the Appellant''s brother, who was also her manager. It has occurred to me that it might be said for the Appellant that all she authorized the pleaders to do, was to do all "necessary acts" for defending the cause, and that, inasmuch as it was not necessary to set up in her defence anything beyond a mere denial of the tenancy to the then two Plaintiffs, the defence actually put in exceeded her instruction, and that, being a purda-nashin lady, she ought not to be regarded as bound by that defence. There is, perhaps, some plausibility in this suggestion, but I think that when even a purda-nashin lady executes, after explanation, such a warrant of attorney as the Appellant did, it must mean that she left the terms of her defence to the discretion of the pleaders who were her legal advisers, and that she must be taken as bound by that defence. But any consideration of this nature becomes unimportant in the present case, because the lady has never repudiated her defence in the former suit, has not suggested in her defence in this case that the matter was not explained to her, or that she had no advice or did not know what she was doing, but, on the contrary, has by her defence in the former suit, to which the present Plaintiff was a party (a co-Plaintiff), stated in the most solemn manner "that the land was rent-free, that she was the owner of the land and that she had to pay rent to no one." That evidence must, having regard to the circumstances, be taken as a clear indication by her of what her contention really was. In my opinion, she must, having regard to her plea, and the evidence, be regarded as having renounced, as between the present Plaintiff and herself, the character of lessee, by claiming title in herself.

If this be so, the rest of the case appears to me to be fairly free from any difficulty. It is for the Appellant to show that she holds under a permanent lease. No lease is produced by her, but she relies on the statement in the plaint in the Small Cause Court suit that the lease was a permanent one. Taking this to be so, viz., that the lease was a permanent one, she now contends that such a lease is, in effect, a conveyance in fee subject to the payment of a perpetual rent. I am unable to take this view. It is a lease, and there is a reversion in the lessor. A lease in perpetuity is obviously contemplated by sec. 105 of the Transfer of Property Act, and it determines by forfeiture under sec. 111 of the same Act, if the lessee renounces her character as lessee by claiming title in herself, as I hold she has done. I see no reason for holding that a permanent lease, that is, a lease in perpetuity, is not under sec. 111 (g) as much liable to determination by forfeiture as a lease for a certain time.

With respect to the argument under sec. 2 (6) and (c) of the Transfer of Property Act, I see nothing in it to induce me to hold that this lease, under the circumstances, has not been forfeited. Before that Act, a tenant, who denied his landlord''s title, rendered his lease liable to forfeiture under the general law. I think the lessor has shown his intention to determine the lease by bringing and proceeding with the present suit. I agree with the decision of the Court below, and the appeal must be dismissed with costs.

Macpherson, J.

I agree with the Chief Justice.

Trevelyan, J.

I also agree.