Namdeo Lokman Lodhi Vs. Narmadabai
& Ors  INSC 15 (27 February 1953)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
CITATION: 1953 AIR 228 1953 SCR 1009
CITATOR INFO :
D 1960 SC 260 (13) R 1965 SC 225 (15) R 1969
SC1349 (8) R 1976 SC 588 (14)
Lease-Condition that the lessee's rights
shall terminate if rent is not paid--Notice in writing by lessor to terminate
lease -Whether necessary-Suit for ejectment without noticeMaintainability
Transfer of Property Act (IV of 1882 as amended in 1929), s. 111(g)-Whether
based on justice, equity and good conscience-Applicability to lease deeds
executed before 1st April, 1930.
The provision as to notice in writing of the
lessor's intention to determine the lease, container in section 111(g) of the Transfer
of Property Act, 1882, as amended in 1929, is not based on any principle of
justice, equity or good conscience and is not applicable to leases executed
prior to 1st April, 1930.
Where a lease deed executed before the Transfer
of Property Act, 1882, came into force, provided that the lessee's rights
should come to an end on default of payment of rent, and, as rent was not duly
paid, the lessor instituted a suit for ejectment of the lessee without giving
him a notice in writing of his (the lessor's) intention to determine the lease
Held, that the suit was maintainable.
Umar Pulavar v. Dawood Rowther (A.1,R. 1947
Mad. 68), Brahmayya v. Sundodaramma (A.I.R. 48 Mad. 275), Tatya Savla Sudrik v.
Yeshwanta Kondiba Mulay (52 Bom. L.R. 909) disapproved. Toleman v. Portbury
(L.R. 6 Q.B. 245), Prakash Chandra Das v. Rajendra Nath Basu (I.L.R. 58 Cal.
1359), Rama Aiyangar v. Guruswami Chetty (35 M.L.J. 129), Venkatachari v.
Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti v. Gilbert Pinto (I.L.R. 42
Mad. 654) relied on.
Venkatarama Aiyar v. Ponnuswamy Padayachi
(A.I.R. 1935 Mad.
918), Aditya Prasad v. Ram Ratanlal (57 I-A.
173), Muhammad Raza v. Abbas Bandi Bibi (59 I.A. 236), Roberts v. Davey (110
E.R. 606) distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 154 of 1952.
Appeal from the Judgment and Decree dated the
23rd June, 1949, of the High 131 1010 Court of Judicature at Bombay (chagla C.
J. and Gajendragadkar J.) in Second Appeal No. 557 of 1945 against the Judgment
and Decree dated the 19th March, 1945, of the Court of Small Causes, Poona, in
Civil Appeal No. 175 of 1943, arising from the Decree dated the 31st March,
1943, of the Court of the Extra Joint Sub-Judge of Poona in Suit No. 858 of
C. K. Daphtary, Solicitor-General for India (J.B. Dadachanji, with him) for the appellant.
V. M. Tarkunde for the respondents.
1953. February 27. The judgment of the Court
was delivered by MAHAJAN J.-This is an appeal by defendant No. I from the
decree of the High Court of Judicature at Bombay in Second Appeal No. 557 of
1945, whereby the High Court confirmed the decree of the lower courts granting
possession of land to the respondents on the forfeiture of a lease. The appeal
is confined to survey No. 86/2 at Mundhava in Poona district.
The principal question arising for decision
in the ap. peal is whether notice as contemplated by section III (g) of the Transfer
of Property Act is necessary for the determination of a lease for non-payment
of rent even where such lease was executed before the coming into force of the Transfer
of Property Act. The only other question that falls for determination is
whether the High Court should have interfered with the discretion of the lower
courts in refusing relief against forfeiture in the circumstances of this case.
The present respondents are the daughter and
grand sons of the original plaintiff Vinayakbhat. His adoptive mother was
Ramabai. She owned two inam lands at Mundhava which were then numbered
Pratibhandi Nos. 71 and 72. Present survey Nos. 86/1 and 86/2 together
correspond to old Pratibhandi No. 71. On 1st July, 1863, Ramabai, while she was
in financial difficulties, passed a permanent lease of both these numbers to
one Ladha Ibrahim Sheth. The lessee paid a premium of Rs. 999 for the lease,
and also agreed to pay 1011 a yearly rent of Rs. 80 to Ramabai during her
lifetime and after her death a yearly amount equal to the assessment of the two
lands to the heirs of Ramabai. The lease provided that in default of payment of
rent the tenant's rights would come to an end.On 18th August, 1870, Ladha
Ibrahim sold his tenancy rights to one Girdhari Balaram Lodhi for Rs.
7,999. The sale deed provided that in default
of payment of rent to Ramabai or her heirs, the purchaser would have no rights
whatsoever left over the property. On the same day the purchaser passed a rent
note in favour of Ramabai. The rent note provided for the payment of the agreed
rent in the month of Pousb every year, and stated that in case of default the
tenant or his heirs would have no right over the land. Defendant No. 1 and the
other defendants are the grandsons of Seth Girdhari Balaram.
In spite of the nullity clause in the lease
it appears that the lessee has been more or less a habitual defaulter in the
payment of rent. In the year 1913, rent for six years was in arrears.
Vinayakbhat filed Suit No. 99 of 1913 in the court of the II Class Sub-Judge,
Poona, against the present defendants for possession of the demised premises on
the ground of forfeiture. A number of defences were raised by them. Inter alia,
it was pleaded that as no notice had been given to them the forfeiture was not
enforceable. These contentions were negatived but the court granted relief
against forfeiture. Defendant No. 1 was a minor at that time and became a major
in or about 1925.
In the year 1928 again rent for two years was
Vinayakbhat filed Civil Suit No. 258 of 1928
against the present defendants for possession on the ground of forfeiture. The
plaintiff subsequently waived the forfeiture by accepting three years' rent
which by then had fallen in arrears and costs of the suit.
In the year 1931 rent for three years again
fell into arrears. The amount was then sent by money order and the landlord
In the year 1934 again rent for three years
At that time proceedings were started by
Government for the acquisition of the old survey No. 72.
1012 The landlord claimed that he was
entitled to the whole compensation money as the tenant's rights had ceased by
forfeiture for non-payment of rent. Defendant No. 1 through his pleader sent a
notice to Vinayakbhat to come and take the arrears of rent. 'He agreed and
accepted the arrears of rent and the forfeiture was again waived. As a result
of this the defendants got Rs. 32,000 by way of compensation for the permanent
tenancy rights in old survey No. 72, while Vinayakbhat got Rs. 1,400 for
compensation for the acquisition of his rights as landlord in that land.
In 1938 rent for four years was again in
Vinayakbhat filed Civil Suit No. 982 of 1938
in the court of the I Class Sub-Judge at Poona against all the present
defendants for possession of survey Nos. 86/1 and 86/2 on the ground that the
lease had determined by forfeiture for non-payment of rent. In that suit
defendant No. 1 pleaded that there was no forfeiture because no rent was fixed
in respect of the suit property and also because it was for the, plaintiff to
recover rent and not for the defendants to go to the plaintiff and pay it.
These contentions were negatived. It was held that forfeiture had occurred but
relief against forfeiture was again granted.
On plaintiff's appeal in this case, the
learned District Judge refused to interfere with the discretion of the trial
judge in granting relief against forfeiture but observed that the defendants
having obtained relief against forfeiture thrice before should not expect to
get it for a fourth time if they again make default in the payment of rent.
The default which has given rise to the
present suit occurred on 28th January, 1941, and the plaintiff filed the suit
out of which this appeal arises for possession on the ground of forfeiture and
for the arrears of rent which remained unpaid. It was alleged in the plaint
that the rent due on 28th January, 1941, was not paid, though demanded.
Plaintiff asked for possession of survey Nos.
86/1 and 86/2 after removal of the structures thereon. Defendant No. 1 pleaded
that as a result of partition rights in survey No. 86/2 had fallen to 1013 his
share, that according to the terms of the rent note it was for the plaintiff to
approach the defendants and. not for the defendants to go to the plaintiff and
pay it,'-' that as the plaintiff did not approach the defendants and no demand
for rent was made, no forfeiture occurred, that defendant No. I did offer the
rent to the plaintiff, but the plaintiff fraudulently refused to accept it,
that the plaintiff ought to have sent a notice according to law if he wanted to
enforce the right of forfeiture and that without prejudice to the above
contentions he should be granted relief against forfeiture.
The trial court decreed the plaintiff's suit
and negatived the contentions raised by the defendants. In awarding Possession
of the entire property to the plaintiff the trial court imposed a condition
that defendant No. I should continue to be in possession of the two structures
in survey No. 86/2 till the end of March, 1950. On the question whether a
notice was necessary before the lease could be terminated, the trial court
expressed the view that the provision in the rent note that on non-payment of rent
the rights of the tenant would come to an end was a clause of nullity and not
merely a clause of forfeiture and that the lease was therefore determined under
section 111 (b) and not under section III (g) of the Transfer of Property Act
and that no notice as required by section 111 (g) was necessary for terminating
the lease in suit. On the issue whether forfeiture should be relieved against,
the trial court said that relief could have been given to the lessee against
forfeiture under section 1 14 had it not been for the fact that the defendants
had disentitled themselves to relief by contumacious conduct on their part,
that even this paltry rent had never been paid in time during the last twenty
years at any rate, and that after defendant No. I had attained majority and got
the estate in his charge in 192223 he had uniformly defaulted in the payment of
rent and that the defendants raised totally false defences and in every suit a
false excuse was set up in an attempt to justify the arrears of rent.
1014 In pursuance of the trial court's decree
plaintiff took possession of all the suit lands in April, 1943, except one acre
which he took possession on 13th September, 1943.
Defendant No. I remained in possession of the
two structures on survey No. 86/2. Against the decision of the trial judge
defendant No. I-alone filed an appeal to the District Judge of Poona. The lower
appellate court confirmed the decree of the trial court with two modifications.
Defendant No. I was allowed to remove the buildings on survey No. 86/2 and also
the trees therein within three months. On the issue whether a notice was
necessary, the appellate court found that the lease came to an end not under
section 111(b) but under section 111 (g) of the Transfer of Property Act, but
that no notice of forfeiture was necessary as the lease had been executed prior
to the coming into force of the Transfer of Property Act. The appellate court
saw no valid reason for interfering with the finding of the trial judge on the
question concerning relief against forfeiture.
From this appellate decree defendant No. I
filed a second appeal to the High Court of Judicature at Bombay. The plaintiff
filed cross-objections in regard to the trees and costs. The High Court
dismissed the appeal and allowed the cross-objections. An application was made for
leave to appeal to the Supreme Court and it was granted with reference to
survey -No. 86/2.
The law with regard to the determination of a
lease by forfeiture is contained is section III (g) of the Transfer of Property
Act. Under that provision a lease is determined by forfeiture in case the
lessee breaks an express condition which provides that on breach thereof the
lessor may reenter, or in case the lessee renounces his character as such by
setting up a title in a third person or by claiming title in himself, or the
lessee is adjudicated an insolvent and the lease provides that the lessor may
reenter on the happening of such event and a certain further act is done by the
lessor as thereinafter mentioned. Prior to its amendment by Act XX of 1929,
this sub-section further provided 1015 "And in any of these cases the
lessor or his transferee does some act showing his intention to determine the
lease." By Act XX of 1929, this subsection was amended and the amended
sub-section now reads:"And in any of these cases the lessor or his
transferee gives notice in writing to the lessee of his intention to determine
the lease." Section 111 (g) in terms makes the further act an integral
condition of the forfeiture. In other words, without this act there is no
completed forfeiture at all. Under the old section an overt act evidencing the
requisite intention was essential. As the law stands today under the Act,
notice in writing by the landlord is a condition precedent to a forfeiture and
the right of re-entry. Section 63 of Act XX of 1929, restricts the operation of
this amendment to transfers of property made after 1st April, 1930. The lease
in this case was executed before the Transfer of Property Act came into force
in 1882. The amendment therefore made in this sub-section by Act XX of 1929 not
being retrospective, cannot touch the present lease and it is also excluded
from the reach of the Transfer of Property Act by the provisions of section 2.
The position was not seriously disputed in the High Court or before us that the
statutory provisions of section 111(g) as such cannot be made to govern the
present lease which was executed in the year 1870. It was however strongly
argued that the amendment made in 1929 to section 111(g) of the Act embodies a
principle of justice, equity and good conscience and notwithstanding section 2
of the Act, that principle was applicable in this case and there can be no
forfeiture unless notice in writing to the lessee of his intention to determine
the lease by the lessor bad been given.
It is axiomatic that the courts must apply
the principles of justice, equity and good conscience to transactions which
come up before them for determination even though the statutory provisions of
the Transfer of 1016 Property Act are not made applicable to these
It follows therefore that the provisions of
the Act which are but a statutory recognition of the rules of justice, equity
'and good conscience also govern those transfers.
If, therefore, we are satisfied that the
particular principle to which the legislature has now given effect by the
amendment to section 111 (g) did in fact represent a principle of justice,
equity and good conscience, undoubtedly the case will have to be decided in
accordance with the rule laid down in the section, although in express terms it
has not been made applicable to leases executed prior to 1929 or even prior to
the Transfer of Property Act coming into force.
The main point for consideration thus is
whether the particular provision introduced in sub-section (g) of section 111
of the Transfer of Property Act in 1929 is but a statutory recognition of a
principle of justice, equity and good conscience, or whether it is merely a
procedural and technical rule introduced in the section by the legislature and
is not based on any well established principles of equity. The High Court held,
and we think rightly, that this provision in sub-section (g) of section III in
regard to notice was not based upon any principle of justice, equity and good
conscience. In the first instance it may be observed that it is erroneous to
suppose that every provision in the Transfer of Property Act and every
amendment effected is necessarily based on principles of justice, equity and
good conscience. It has to be seen in every case whether the particular
provisions of the Act relied upon restates a known rule of equity or whether it
is merely a new rule laid down by the legislature without reference to any rule
of equity and what is the true nature and character of the rule. Now, so far as
section 111 (g) of the Act is concerned, the insistence therein that the notice
should be given in writing is intrinsic evidence of the fact that the formality
is merely statutory and it cannot trace its origin to any rule of equity.
Equity does not concern itself with mere forms or modes of procedure.
If the purpose of the rule as to notice is to
indicate the intention of the lessor to 1017 determine the lease and to avail
himself of the tenant's breach of covenant it could as effectively be achieved
by an oral intimation as by a written one without in any way disturbing the
mind of a chancery judge. The requirement as to written notice provided in the
section therefore cannot be said to be based on any general rule of equity.
That it is not so is apparent from the circumstance that the requirement of a
notice in writing to complete a forfeiture has been dispensed with by the
legislature in respect to leases executed before 1st April, 1930. Those leases
are still governed by the unamended sub-section (g) of section 1 1 1. All that
was required by that sub-section was that the lessor was to show his intention
to determine the lease by some act indicating that intention. The principles of
justice, equity and good conscience are not such a variable commodity, that
they change and stand altered on a particular date on the mandate of the
legislature and that to leases made between 1882 and 1930 the principle of
equity applicable is the one contained in sub-section (g) as it stood before
1929, and to leases executed after 1st April, 1930, the principle of equity is
the one stated in the subsection as it now stands. Question may also be posed,
whether according to English law a notice is a necessary requisite to complete
The English law on the subject is stated in
Foa's General Law of Landlord and Tenant (7th edition) at page 316 in these
terms :" In no case can the lessee take advantage of the proviso for
re-entry in order to avoid the lease, even where it is in the form (not that
the lessor may reenter, but) that the term shall cease, or that the lease shall
be void for all purposes, or 'absolutely forfeited'; for expressions of this
kind only mean that the tenancy shall determine at the option of the
lessor......... This has been usually expressed by saying that the lease is
voidable and not void;
but the true principle appears to be that the
lease does become void to all intents and purposes, though this is subject to
the condition that the party who is seeking to set up its invalidity 132 1018
is not himself in default, for otherwise he would be taking advantage of his
own wrong. It follows that where the proviso makes the lease void, the landlord
must, in order to take advantage of it, do some unequivocal act notified to the
lessee, indicating his intention to avail himself of the option given to him.
The service upon the lessee in possession of a writ in ejectment is
The Law of Property Act, 1925, by section 146
has consolidated the law in England on this subject. The provision with regard
to the giving of notice before a right of re-entry accrues to the landlord is
expressly excluded by sub-section (11) in cases of re-entry on forfeiture for
nonpayment of rent. In England it is not necessary in case of non-payment of
rent for a landlord to give notice before a forfeiture results. It cannot,
therefore, be said that what has been enacted in sub-section (g) of section II
1 is a matter which even today in English law is considered as a matter of
justice, equity and good conscience. In English law the bringing of an action
which corresponds to the institution of a suit in India is itself an act which
is definitely regarded as evidencing an intention on the part of the lessor to
determine a lease with regard to which there has been a breach of covenant
entitling the lessor to re-enter : vide Toleman v. Portbury and Prakashchandra
Das v. Rajendranath Basu(2).
In India there is a substantial body of
judicial authority for the proposition that in respect of leases made before
the Transfer of Property Act forfeiture is incurred when there is a disclaimer
of title or there is non-payment of rent. Any subsequent act of the landlord
electing to take advantage of a forfeiture is not a condition precedent to the
right of action for ejectment. The bringing by a landlord of a suit for
ejectment is simply a mode of manifesting his election. The principle of these
cases rests upon the ground that the forfeiture is complete when the breach of
the condition or the denial of title occurs.
But as it is left to the lessor's option to
take advantage of it or not, the (1) L.R. 6 Q.B. 245.(2) (1931)58 cal. 1359.
1019 election is not a condition precedent to
the right of action and the institution of the action is a sufficient
manifestation of the election. The same principle is applied for actions for
relief on the ground of fraud. [vide Padmabhaya v. Ranga(1) ; Korapalu v. Narayana(2)].
In Rama Aiyangar v. Guruswami Chetty(3),it was saidthat as the lease was not
governed by the Transfer of Property Act, the institution of the suit was a
sufficient determination of the lease and no other previous act determining the
same such as a notice to quit was necessary for maintaining the action. The
same view was expressed in Venkatachari v.
Rangaswami Aiyar(4). In Venkatarama Aiyar v.
Ponnuswami Padayachi(5), it was observed that the forfeiture will not be
produced merely by the unilateral act of ceasing to comply with the conditions
upon which the property is held, but it must involve also some expression of
intention to enforce the forfeiture on the part of the lessor. In other words,
the lessee cannot by his unilateral act terminate the lease, and cannot take
advantage of his own wrong. That is an intelligible principle and is based on a
maxim of equity.
But the defaulting lessee cannot claim the
benefit of a notice in writing to complete the forfeiture he has incurred. The
lessor has to simply express an intention that he is going to avail of the
forfeiture and that can be done by the filing of a suit, as in English law, in
all cases not governed by the Transfer of Property Act.
Again in Ramakrishna Mallaya v. Baburaya (6),
it was said that in an ejectment suit based on leases executed prior to the Transfer
of Property Act, no act on the part of the landlord showing that he elected to
take advantage of the forfeiture for non-payment of rent was necessary. The
contrary view expressed in Nourang Singh v. Janardan Kishor(7), that the
institution of a suit for ejectment could not be regarded as a requisite act to
show the intention of a (1) (1911) I,L.R. 34 Mad. 161.
(2) (1915) I.L.R. 38 Mad. 445.
(3) (1918) 35 M.L.J. 129.
(4) (1919) 36 M.L.J. 532.
(5) A.I.R. 1935 Mad. 918.
(6) (1914) 24 I.C. 139.
(7) (1918) I.L.R. 45 Cal. 469, 1020 landlord
to determine a lease within the meaning of section 111 (g), was dissented from
in Prakashchandra Das v. Rajendranath Basu(1); and it was said that there is no
special reason why the lessor's election must be made at some time prior to the
institution of a suit and that it was difficult to find a raison d'etr for the
view that the cause of action has not completely accrued if the election is
made at the moment when the suit is instituted, i.e., the moment the plaint is
presented. The cause of action for the suit can arise simultaneously with the
presentation of a plaint.
In our opinion the provision as to notice in
writing as a preliminary to a suit for ejectment based on forfeiture of a lease
is not based on any principle of justice, equity or good conscience and cannot
govern leases made prior to the coming into force of the Transfer of Property
Act, 1882, or to leases executed prior to 1st April, 1930. The rights and
obligations under those leases have to be determined according to the rules of
law prevailing -at the time and the only rule applicable seems to be that a
tenant cannot by his unilateral act and by his own wrong determine the lease
unless the lessor gives an indication by some unequivocal expression of
intention on his part of taking advantage of the breach. On no principle of
equity is a tenant entitled to a notice in writing telling him that the lease
has been determined. The High Court was therefore right in the view that it
took of the matter and there are no valid reasons for taking a contrary view.
Considerable reliance was placed by Mr.
Daphtary on the decision of Chandrasekhara Aiyar J. sitting singly in the case
of Umar Pulavar v. Dawood Rowther(2), wherein the learned Judge said that
section 111 (g) as amended in 1929 embodied a principle of justice, equity and
good conscience and must be held to govern even agricultural leases and where
there was a forfeiture by denial of the landlord's title, a notice in writing
determining the lease was necessary. it was there observed that the principle
so embodied (1) (1931) I.L.R. 58 Cal. 1359.
(2) A.I.R. 1947 Mad. 68.
1021 in the sub-section as a result of the
amendment becomes, so to say, a principle of justice, equity and. good
The learned Judge for this view placed
reliance on the decision in Krishna Shetti v. Gilbert Pinto('), in which it was
said that the Transfer of Property Act was framed. by eminent English lawyers
to reproduce the rules of English law, in so far as they are of general.
application and rest on principle as well as authority and its provisions are
binding on us as rules of justice, equity and good conscience. With respect, we
are constrained to observe that this is too broad a statement to make. It seems
that the attention of the learned judges was not drawn to the fact that the
provision as to notice for determining a lease for nonpayment of rent was not a
part of the English law.
It also does not seem to have been fully
appreciated that the rule enunciated in sub-section (g) of section 111 prior to
its amendment in 1929 and which still governs leases executed before 1st April,
1930, OD the reasoning of the decision would also be a rule of justice, equity
and good conscience and according to it the institution of a suit for ejectment
would be sufficient indication on the part of the landlord for determination of
the lease and a notice in writing as required by the amended section would not
be a prerequisite for institution of such a suit. In our judgment, this case
was wrongly decided and we are unable to support it.
As pointed out by Napier J. in Krishna Shetti
v. Gilbert Pinto (1), the courts should be very careful in applying statutory
provisions and the assistance of the Transfer of Property Act as a guide on
matters which have been excluded from the purview of the Act by express words
should not be invoked, unless the provisions of the Act embody principles of
Mr. Daplitary also placed reliance on certain
observations contained in the Full Bench decision Brahmayya v. Sundaramma (1).
There it was said that although section 106 of the Transfer of Property Act
does not (1) (1919) I.L.R. 42 Mad. 654.
(2) A.I.R. 1948 Mad. 275.
1022 apply to leases for agricultural purpose
by virtue of section 117 of the Act, nevertheless the rules in section 106 and
in the other -sections (sections 105 to 11 6) in Chapter V of the Act are founded
upon reason and equity and they are the principles or English law and should be
adopted as the statement of the law in India applicable also to agricultural
leases. In our opinion, the above statement is again formulated in too wide a
language. Section 105 gives a statutory definition of the word
"lease". It enunciates no principle of equity. The relation of lessor
and lessee is one of contract and in Bacon's Abridgement a lease is defined as
a contract between the lessor and the lessee for the possession and profits of
land on the one side and recompense by rent or other consideration on the
other. The statute has given a more comprehensive definition of the term.
Section 107 makes registration of a lease compulsory.
This section again does not concern itself
with any principle of justice or equity. Section 108 (j) enacts that the lessee
may transfer absolutely by way of mortgage or sublease the whole or any part of
his interest in the property and any transferee of such interest or part may
again transfer it. The law in India and England on this subject is not the same
and it cannot be said that this subsection enacts or enunciates any general
principle of equity. Parts of sections 109, 1 10 and Ill contain mere rules of
procedure or rules of a technical nature. These certainly cannot be said to be
based on any principles of equity. In our judgment, therefore, the statement in
this decision that sections 105 to 116 of the Transfer of Property Act are
founded upon principles of reason and equity cannot be accepted either as
correct or precise. Of course, to the extent that those sections of the Act
give statutory recognition to principles of justice, equity and good conscience
they are applicable also to cases not governed by the Act.
Reference was also made to the decision of
the Bombay High Court in Tatya Savla Sudrik v. Yeshwanta Kondiba Mulay (1)
where it was said that the (1) (1950) 52 Bom. L.R. 909.
1023 principle embodied in section 111 (g) of
the Transfer of Property Act that in the case of forfeiture by denial of
landlord's title a notice in writing determining them lease must be given is a
principle of justice, equity and good conscience which must be held to govern
even agricultural leases. In that case it was contended that following upon
forfeiture which had been incurred a suit was filed by the plaintiffs in
eviction and nothing more needed to be done by the plaintiffs. For this
contention reliance was placed on two earlier decisions of the Bombay High
Court, Venkaji Krishna Nadkarni v. Lakshman Devji Kandar (1) and Vidyavardhak
Sang Co. v. Avvappa (2). This contention was negatived in view of the decision
of Chandrasekhara Aiyar J.
above referred to, and also in view of a
binding decision of a Division Bench of that court in Mahiboobkhan Muradkhan v.
Ghanashyam Jamnaji(3). The learned Chief Justice in the judgment under appeal
has explained the distinction between the present case and that case and has
not followed his own earlier decision in arriving at his conclusions here. With
respect we think that that decision did not state the law on the point
correctly. Under English law the institution of a suit for ejectment has always
been considered an unequivocal act on the part of the landlord for taking
advantage of the default of the tenant and for enforcing the forfeiture in case
of non-payment of rent, and even in other cases except where statutory
provisions were made to the contrary.
Reference was also made to the observations
of their Lordships of the Privy Council in Aditya Prasad v. Ramratan Lal (1).
Their Lordships dealing with the question whether a certain document created a
charge upon a village observed that the appellant could not redeem it without
paying both the mortgage debt and the amount subsequently raised and it was
said that the provisions of the Transfer of Property Act on the point were
identical with the principles of justice, equity and good conscience. The
observation made in that case must be limited to that case and cannot be (1)
(1896) I.L.R 20 Bom, 354 F.B.
(2) (1925) 27 Bom, L.R. 1152.
(4) (1930) 57 I.A. 173.
1024 held as applicable to all cases
irrespective of the nature of the provisions involved. Similar observations are
contained in another decision of their Lordships of the Privy Council in
Muhammad Raza v. Abbas Bandi Bibi (1), which concerned the provisions of
section 10 of the Transfer of Property Act which recognizes the validity of a
partial restriction upon a power of disposition in the case of a transfer inter
vivos. It was held that there was no authority that a different principle
applied in India before the Act was passed and that under English law a partial
restriction was' not repugnant even in the case of a testamentary gift.
Lastly, Mr. Daphtary drew our attention to
the decision in Roberts v. Davey(2), which relates to a licence. There it was
observed that it was necessary for the licensor to have done some act showing
his intention to determine the licence and until such act was shown, it
continued in force.
Littledale J. in this case said that the
instrument was "a mere licence to dig, and did not pass the land. An
actual entry, therefore, was unnecessary to avoid it; but by analogy to what is
required to be done in order to determine a freehold lease which, by the terms
of it, is to be void on the non-performance of covenants, it seems to follow
that, to put an end to this licence, the grantor should have given notice of
his intention so to do". The basis of the decision was that some act
amounting to an exercise of the option had to be proved before the licence was
This decision therefore does not in any way
affect the decision of the High Court in this case.
On the question whether the tenant should
have been given relief against forfeiture the High Court held that the matter
was one of discretion and both the lower courts had exercised their discretion
against the appellant and that being so, unless they were satisfied that the
discretion was not judicially exercised or was exercised without proper
materials they would not ordinarily interfere with it in second appeal. It was
said that the non-payment in this case seems to have (1) (1932) 59 I.A. 236.
(2) 110 E.R. 606.
1025 become chronic and that this was not a
case for the exercise of equitable jurisdiction.
Mr. Daphtary contended that the High Court
failed to appreciate the rule applicable for the exercise of the discretion in
such cases and that the rule is that if at the time relief is asked for the
position has been altered so that relief cannot be given without causing injury
to third parties relief will be refused, but if that position is not altered so
that no injustice will be done there is no real discretion and the court should
make the order and give the relief. Reference was made to the decision of Page
J. in Debendralal Khan v. F. M. A. Cohen (1), wherein it was said that the
court normally would grant relief against forfeiture for non-payment of rent
under section 114 of the Transfer of Property Act and that if the sun) required
under the section was paid or tendered to the lessor at the hearing of the suit
the court has no discretion. in the matter and must grant relief to the tenant.
We do not think that the learned Judges intended to lay down any hard and fast
rule. Indeed the learned Judge proceeded to observe as follows:"In
exercising the discretion with which it is invested under section 114 a court
in India is not bound by the practice of a court of Chancery in England, and I
am not disposed to limit the discretion that it possesses, Those who seek
equity must do equity, and I do not think merely because a tenant complies with
the conditions laid down in section 114 that he becomes entitled as of right to
relief" In our opinion, in exercising the discretion, each case must be
judged by itself, the delay, the conduct of the parties and the difficulties to
which the landlord. has been put should be weighed against the tenant, This was
the view taken by the Madras High Court in Appaya Shetty v. Mohammad Beari (2)
, and the matter was discussed at some length. We agree with the ratio of that
decision. It is a maxim of equity that a person (1) (1927) I.L.R. 54 Cal. 485.
(2) (1916) I.L.R, 39 Mad. 834.
133 1026 who comes in equity must do equity
and must come with clean hands and if the conduct of the tenant is such that it
disentitles him to relief in equity, then the court's hands are not tied to
exercise it in his favour. Reference in this connection may also be made to
Ramakrishna Mallya v.
Baburaya(1), and Ramabrahmam v. Rami Reddi
The argument of Mr. Daphtary that there was
no real discretion in the court and relief could not be refused except in cases
where third party interests intervene is completely negatived by the decision
of the House of Lords in Hyman v. Rose (3). Relief was claimed in that case
under the provisions of section 14(2) of the Conveyancing Act, 1881, against
forfeiture for breaches of covenant in the lease. The appellants offered as the
terms on which relief should be granted to deposit a sum sufficient to ensure
the restoration of the premises to their former condition at the end of the
term and make full restitution. It was argued that the matter was one of
discretion and the court should lean to relieve a tenant against forfeiture and
if full recompense can be made to the landlord the relief should be granted.
Lord Loreburn in delivering the opinion of the House observed as follows:"I
desire in the first instance to point out that the discretion given by the
section is very wide. The court is to consider all the circumstances and the
conduct of the parties. Now it seems to me that when the Act is so express to
provide a wide discretion, meaning, no doubt, to prevent one man from
forfeiting what in fair dealing belongs to some one else, by taking advantage
of a breach from which he is not commensurately and irreparably damaged, it is
not advisable to lay down any rigid rules for guiding that discretion. I do not
doubt that the rules enunciated by the Master of the Rolls in the present case
are useful maxims in general, and that in general they reflect the point of
view from which judges would regard (1) (1914) 24 I.C. 139.
(2) A.I.R. 1928 Mad. 250.
(3)  A.C. 623.
1027 an application for relief. But I think
it ought to be distinctly understood that there may be cases in which any or
all of them may be disregarded. If it were otherwise the free discretion given
by the statute would be fettered by limitations which have nowhere been
enacted. It is one thing to decide what is the true meaning of the language
contained in an Act of Parliament. It is quite a different thing to place
conditions upon a free discretion entrusted by statute to the court where the
conditions are not based upon statutory enactment at all. It is not safe, I
think, to say that the court must and will always insist upon certain things
when the Act does not require them, and the facts of some unforeseen case may
make the court wish it had kept a free hand." With great respect we think that
the observations cited above contain sound principles of law. We are,
therefore, unable to accede to the contention of Mr. Daphtary that though
section 114 of the Transfer of Property Act confers a discretion on the court,
that discretion except in cases where third party interests intervene must
always be exercised in favour of the tenant irrespective of the conduct of the
tenant. It is clear that in this case the tenant is a recalcitrant tenant and
is a habitual defaulter.
For the best part of 25 years he has never
paid rent without being sued in court. Rent has been in arrears at times for
six years, at other times for three years and at other times for four years and
so on, and every time the landlord had to file a suit in ejectment which was
always resisted on false defences. No rule of equity, justice or good
conscience can be invoked in the case of a tenant of this description. He
cannot always be allowed to take advantage of his own wrong and to plead relief
against forfeiture on every occasion, particularly when he was warned by the
court of appeal on a previous occasion. He had already had relief three times
on equitable grounds and it is time that the court withheld its hands and
ordered his ejectment. In this situation the High Court was fully justified in
finding that in second appeal it would not interfere with the 1028 discretion
of the courts below in refusing to, grant relief against forfeiture.
The result therefore is that this appeal
fails is dismissed with costs.
Agent for appellant: R.A. Govind.
Agent for respondents: Rajinder Narain.