S.K. Kochi vs Govida Chandra Bhattachaeya

This Rule is directed against an order, passed by the First Additional Subordinate Judge, 24-Parganas, in Miscellaneous Appeals No. 730 and 7C5 of 1954. These two appeals arose out of Miscellaneous Case No. 102 of 1954, instituted before the Munsif, First Court, Alipore, in his capacity, as Controller, appointed under the Calcutta Thika Tenancy Act, 1949, for ejectment of a thika tenant u/s 5 of the said Act. The Petitioner before us was the tenant and the opposite party the landlord who had filed the said application for ejectment of the Petitioner from two holding, bearing Nos. 153 and 154, within the Garden Reach Municipality. Ejectment was allowed by the Controller on three grounds, namely, (1) that the tenant has broken a condition, on breach whereof he was, under the terms of the contact, liable to be ejected (vide Section 3(ii)), (2) that he had failed to use or occupy a major part of the holdings for his own residential purpose for more than six consecutive months (vide Section 3(v)) and (3) that he had failed to pay arrears of rent due to the landlord (vide Section 3(i)). Both the parties appealed against this order of the Thika Controller and the appellate court decreed ejectment only on the first ground on the finding that the tenant had cut down certain trees in violation of a covenant in his lease and had thereby incurred forfeiture.

Against the said judgment, the tenant moved this Court in revision and obtained Civil Rule No. 689 of 1955 and therein this Court held inter alia that the tenant had incurred forfeiture by cutting down the trees and was liable to eviction u/s 3(ii) of the Calcutta Thika. Tenancy Act, 1949, unless he could establish a case of waiver of the forfeiture u/s 112 of the Transfer of Property Act, and remanded the appeals to the lower appellate court for a decision on two questions, namely, (i) whether or not the landlord had waived the forfeiture under the said section and (ii) whether or not the tenant had failed to pay arrear of rent due in respect of his holding and was liable to ejectment u/s 3(i) of the Calcutta Thika Tenancy Act, 1949.

The appeals were thereupon reheard, the parties having adduced additional evidence according to the terms of the order of remand. At this rehearing, the landlord did not press his claim for ejectment of the tenant from holding No. 153 and confined his claim to holding No. 154 alone. The learned First Additional Subordinate Judge, Alipore, who heard the appeals on this occasion, came to the finding that there had been no waiver of forfeiture on the part of the landlord u/s 112 of the Transfer of Property Act and that the tenant was liable to ejectment on the ground of forfeiture u/s 3(M) of the Calcutta Thika Tenancy Act. He further held that the tenant had failed to pay arrears of rent due to the landlord and was liable to ejectment on that ground also u/s 3(i) of the said Act. He directed the tenant to pay Us. 102 on account of arrears of rent plus interest Rs. 52 and damages Rs. 329-8 within thirty days from the date of his order and directed that, in default of such payment, the decree for ejectment u/s 3(i) would be executable. The Thika Controller had directed the landlord to pay compensation to the tenant before executing the decree for ejectment, but this part of the order was set aside by the learned Additional Subordinate Judge as he rejected the landlord''s claim for ejectment u/s 3(v). It is against the above order which has passed on 10th January, 195G, that the present Rule has been obtained by the tenant.

It should be stated here that the tenancy had been created by a registered kabuliyat, executed on the 6th June, 1933, by one Chhuiya Bewa in favour of Gropal Chandra Bhattacharyya, as benamdar for the present landlord. The kabuliyat was for a term of three years, commencing from 1st Chaitra, 1339, B.S. The land, described in the kabuliyat, measured 8 cottahs and the rent fixed was Rs. 4-4 per month, payable according to the Bengali calendar. After the expiry of the term, Chhuiya Bewa held over on the same terms as in the kabuliyat until her death in 1944 or 1945, after which the Petitioner before us, who is her son, became the tenant and continued to possess the said land on the same rent. There was a term in the kabuliyat that the tenant would be liable to eviction, if he cut down any of the trees, standing on the land. The Landlord''s case before the Controller was that the tenant had encroached upon 4 1/2 cottahs of land from holding No. 153 and possessed the same as a tresspasser and that he was liable to ejectment from both the holdings. The Controller had ordered ejectment of the tenant from that land also but, subsequently, at the rehearing of the appeal after remand, the claim for ejectment, as we have already stated, from those 44 cottahs of land out of holding No. 153 was abandoned and, before us, the question of the tenant''s liability for ejectment has been confined to holding No. 154 only which was the subject-matter of the tenancy, created by the kabuliyat, mentioned above. As regards forfeiture, the case was that the tenant had cut down a valuable Debadaru tree in or about May. 1952 (which fact had been endorsed by the landlord on the back of the rent receipt, granted by him to the tenant on the 30th May, 1952) and also a big Nim tree in or about June, 1952, and, as regards non-payment of rent, the allegation was that the rent was in arrear from Magh, 1356 B.S. to Falgoon, 1360 B.S. A notice to quit u/s 4(a) of the Calcutta Thika Tenancy Act, 1949, was served on the 4th February, 1954, determining the tenancy with effect from the end of Falgoon, 1360 B.S. In the notice, two grounds for ejectment had been mentioned, namely, default in the payment of rent and forfeiture of the tenancy on account of cutting down of the trees.

Two points have been urged before us on behalf of the Petitioner. The first point is that no rent was in arrear in respect of holding No. 154 and that the learned Subordinate Judge''s finding that the tenant was liable to ejectment u/s 3(i) of the Calcutta Thika Tenancy, Act, 1949, was not justified by the evidence on record. The second point is that forfeiture had been waived by the landlord u/s 112 of the Transfer of Property Act and the finding of the learned Subordinate Judge to the contrary was wrong and against the weight of evidence.

With regard to the first point, it appears from the rent receipts filed that the tenant was very irregular in the matter of payment of rent and paid rent for several months in a lump once or twice in a year. There is a receipt, Ext. A(61). dated the 11th October, 1949. which shows payment of rent from Jaistha, 1355 to Falgoon, 1355 B.S. Thereafter on the 17th December, 1950, a sum of Rs. 51 was paid by one Gaffar Ali, son-in-law of the tenant who had then gone on a sea voyage and, on the 16th November, 1951, another sum of Rs. 51 was paid to the said Gaffar Ali. These payments were acknowledged by the landlord in a receipt, Ext. A(74), this sum was credited to damages for use and received, not as rent in respect of holding No. 154, but as damages for occupation of the land, encroached upon by the tenant. From the description of the land it appears that it refers to the land of holding No. 153, though that holding is not mentioned in the receipt. On the 30th May, 1952, a sum of Rs. 42-8 was paid by the tenant for which the receipt, Ext. A(75), was granted and this was credited to rent of holding No. 154 from Chaitra, 1355 B.S. to Pous, 1356 B.S. On the 7th January, 1953, a sum of Rs. 52 was paid and according to the endorsement in the receipt, Ext. A(74), this sum was credited to damages for use and occupation of the Land, encroached upon, finally a sum of Rs. 51 was sent by money order which was received on the 26th September, 1953, (vide Ext. A(73)) and credited to rent of holding No. 154 from Magh, 1356 to Pous, 1357 B.S.

The Petitioner''s contention is that the sum of Rs. 102 mentioned in the receipt, Ext. A(76) and the sum of Rs. 52 mentioned in in the receipt, Ext. A(74), had been paid, and should have been credited, towards the rent of holding No. 154 and that, if they were so credited, there would have been no arrears left. The last contention is now, however, correct, because at the date when the first sum of Rs. 51 was paid on the 17th December, 1950 (vide Ext. A(78)), the rent of the holding was in arrear from Chaitra, 1355 B.S., as would appear from the receipt, Ext. A(61), dated the 11th October, 1949. From Chaitra, 1355 B.S. to Falgoon, 1360 B.S., when the tenancy was terminated by notice, the total rent due at Rs. 4-4 per month would have amounted to Rs. 255 but the total of all the above sums paid from the 17th December, 1950, upto the date of and including the money order, Ext. A(73), was Rs. 247-8. There is, further, nothing to show that the sums, mentioned in the receipts, Exts. A(76) and A(74), had been paid towards the rent of holding No. 154 but had been wrongly appropriated by the landlord to damages for the other holding. The appropriation was made by the landlord by endorsements on the receipts which were issued to the tenant and has been produced by him. The Petitioner never alleged that the endorsements were fraudulently made by the landlord without the knowledge of the persons who paid the relative amounts. Abdul Gaffar who received Ext. A(76) did not say so. The corresponding counterfoil, Ex. 7, bears his endorsement of payment (vide R.W. 1) over his signature (Ext. 15). That shows that he knows English and can sign his name in English. It is reasonable to hold, therefore, that he would have protested against the landlord''s above endorsement if it was not correct. The next receipt, Ext. A(75), dated the 30th May, 1952, was received by the Petitioner''s son S.k. Ahmed who signed the corresponding counterfoil, Ext. 7(a), in English in acknowledgment (vide Ext. 14) thereof. This counterfoil also bears an endorsement of payment by the said S.k. Ahmed (vide R.W. 1). This receipt, Ext. A(75), was, as already stated, issued for rent due from Chaitra, 1355 B.S, to Pous, 1356 B.S. If the sums mentioned in Ext. A(76), had been intended to be paid and had actually been paid towards the rent of holding No. 154, Sk. Ahmed who paid the sum mentioned in Ext. A(75), long thereafter and who appears to know English would not have agreed to the said sum being credited to Tent, due from Chaitra, 1355 B.S., but would have claimed credit for a subsequent period after taking into account the payments, shown in Ext. A(76). As to the receipt, Ext. A(74), the landlord''s endorsement on it shows that it was not in respect of the tenanted land (holding No. 1544 but in respect of the encroached land (holding No. 153) and, as we have already stated above, the Petitioner never made any complaint that the said endorsement was made by the landlord fraudulently or behind the back of the person who made the relative payment. In these circumstances, we find no reason to differ from the finding of the learned Subordinate Judge that the tenant was liable to ejectment for non-payment of rent u/s 3(i) of the Thika Tenancy Act, 1949.

With, regard to the other question, namely, forfeiture, it has been pointed out to us that originally this ground did not occur in the application, filed on 30th March, 1954, u/s 5 of the Thika Tenancy Act, 1949, but it was subsequently introduced by an amendment on the 21st July, 1954. It has been argued that, since the landlord did not ask for ejectment on the ground of forfeiture in the original application, he should be deemed to have waived the same. We are not, however, impressed by this argument. As was pointed out by this Court in the judgment in Civil Rule No. 689 of 1955, it was not strictly a new ground as it had been expressly mentioned in the notice to quit. The forfeiture clause in the lease was mentioned in the application and the fact that the tenant had cut down trees was also mentioned and a sum of Rs. 100 was claimed as damages therefor. It was stated in the application for amendment that this ground had not been mentioned in the original application through oversight. The fact that the application was amended as soon as the omission was detected clearly showed an intention on the part of the landlord to enforce the forfeiture and not to waive it. Since the amendment was allowed, the legal effect is that this ground should be taken to have been a part of the original application. It is to be noted also that no objection was raised by the tenant to the amendment when it was allowed (vide order No. 7. dated July 21, 1954). We, therefore, reject the Petitioner''s above argument.

It has next been argued that the forfeiture was waived by the claim for rent, made in the application, for a period subsequent to the forfeiture. The application contained a statement in Schedule B thereof that the rent of the holding was in arrear from Magh, 1356 B.S. to Falgoon. 1360 B.S. and a prayer was made that the arrears of rent might be declared to be a charge on the structure of the tenant, existing on the holding. Since the forfeiture had been incurred in May, 1952, corresponding to Baisakh or Jaistha, 1359 B.S. and this demand for rent was for a period subsequent thereto being up to Falgoon, 1360 B.S., it is contended that the demand constituted waiver of the forfeiture. The learned advocate for the Petitioner has relied in this connection on the decision of this Court in Abdul Rashid v. Safar Ali (1918) A. I. R. (Cal.) 552 (2). In that case, so far as it appears from the meagre report, the Plaintiff had sued for ejectment of certain tenants on the ground that they had defaulted in the payment of rent and thereby incurred forfeiture under the terms of the lease and he had also claimed rent for six years from 1314 to 1319 B.S. after the date of the alleged default. It was held that, by claiming rent, subsequent to the default, the Plaintiff must be taken to have waived the forfeiture u/s 112 of the Transfer of Property Act. We shall consider this case hereafter in some detail in its appropriate place. For the present it is enough to say that this case is not of much assistance to the Petitioner in the facts before us.

The section (Section 112) provides that a forfeiture, u/s 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor, showing an intention to treat the lease as subsisting provided that the lessor is aware of the forfeiture. There is a further proviso to the section which enacts that where rent is accepted after the institution of a suit to eject a lessee on the ground of forfeiture, such acceptance does not amount to waiver of the forfeiture. When a forfeiture is incurred the lease does not ipso facta become void. Section 111, Clause (g), which enumerates of cases in which forfeiture may be incurred, provides that in each of these cases the lessor must give a notice in writing to the lessee of his intention to determine the lease. Unless such a notice is given the lease cannot be determined, even if a forfeiture has been incurred. A breach of a condition in a lease, entailing forfeiture, only makes the lease voidable at the option of the lessor after he has had knowledge of the breach. The lessor, in such a case, has to elect to avoid or not to avoid the lease and the forfeiture is not complete unless and until the lessor gives notice in writing of his intention to determine the lease'' (vide Section 111(g) of the Transfer of Property Act) that being the mode, prescribed by the statute of making the election or exercising the option to avoid the lease. Even after he has given such notice, as required by Section 111, Clause (g), the lessor can waive the forfeiture by acceptance of rent which has accrued since the forfeiture or by any other act which unmistakably shows his intention to treat the lease as subsisting (vide Section 112). The acceptance, after the breach, of rent which had become due before the breach does not, however, operate as waiver. This is clear from the language of Section 112, quoted above. (See also Raj Mohan v. Matilal (1915) 22 C.L.J. 546.) It is only when rent is accepted for a period, subsequent to the breach, that it may amount to waiver, showing an intention on the part of the lessor to continue the lease in spite of the breach and the utmost that can be said on this point-although the matter is not altogether free from doubt-that, under the Indian law, as enacted in the Transfer of Property Act, the position would not be different even if the period be subsequent to the notice, determining the lease u/s 111(g) (vide, Motilal v. Pure Jambad Colliery (1940) 44 C.W.N. 1109; Chotu Mia v. Mt. Sundri (1945) AIR (Pat.) 260). It was sought to be argued before us that the acceptance of rent by the landlord on May 30, 1952, and, thereafter, in 1953, by Exs. A(75) and A(73), after the breach amounted to waiver, but, as we have shown above, the rents accepted were for a period, antecedent to the breach. This argument, therefore, fails.

Apart from acceptance of rent, a demand for rent, accruing due since the breach of the covenant, entailing forfeiture, may, under certain circumstances, be said to be an act on the part of the lessor, showing an intention to treat the lease as subsisting within the meaning of Section 112 and, therefore, such demand, in the facts of a particular case, may be held to constitute a waiver of the forfeiture. On the same principle, a suit for rent simplicities for a period, subsequent to the breach would amount to waiver. But, according to the second proviso to Section 112, acceptance of such rent after the institution of a suit to eject the lessee on the ground of forfeiture is not a waiver. Necessarily, therefore, a demand for rent after the institution of such a suit would not be a waiver. This is because the institution of a suit for ejectment simplicities on the ground of forfeiture necessarily shows an irrevocable intention on the part of the lessor to avoid the lease. Once the lessor has made the election by some unequivocal act to avoid the lease on the ground of forfeiture, the election becomes irrevocable and any subsequent act of his will not amount to a waiver. The institution of a suit for ejectment simpliciter on the ground of forfeiture is such an unequivocal act, unless there are averments in the pleading which show a different intention, inconsistent with the intention to void the lease. "Where the suit is not simply for ejectment but other claims, in addition thereto or in the alternative, are joined, that may amount to waiver of the forfeiture, where these additional or alternative claims are inconsistent with the intention to avoid the lease. In the absence, however, of inconsistencies referred to above in the pleading, on which ejectment is sought on the ground of forfeiture, a finding of waiver of the forfeiture therefrom would not be justified.

In the case before us, there was an unequivocal demand for recovery of possession in the application u/s 5 of the Thika Tenancy Act, 1949, and there were no averments inconsistent with an irrevocable decision on the part of the landlord opposite party to determine the tenancy and recover possession. The tenancy had been determined by notice, in which ground of forfeiture was expressly mentioned. This notice was apparently given u/s 4(a) of the Calcutta Thika Tenancy Act, 1949, which requires one month''s notice, expiring with the end of month of the tenancy, whether the ground for ejectment is nonpayment of rent u/s 3(i) or forfeiture for breach of a covenant u/s 3(ii) of the said Act. It was also a good notice under and in full compliance with the requirements of Section 111(g) of the Transfer of Property Act and sufficient to determine the tenancy thereunder. In the notice both the above grounds under Sections 3(i) and 3(n) were mentioned and the tenancy was determined by the notice and not prior thereto. In these circumstances the demand for rent up to the date of expiry of the above notice, which, as stated above, was the date of the determination of the tenancy, was quite in order and cannot be construed to be inconsistent with the intention to determine the tenancy on the ground of forfeiture. The law indeed, is clear that where ejectment is sought for on the ground of forfeiture and/or on the ground of non-payment of rent, a demand for rent up to the date of determination of the tenancy does not amount to a waiver of the forfeiture. This follows almost as an axiomatic truth as until determination of the tenancy the relationship of landlord and tenant between the ''parties subsists and, accordingly, until such determination, the landlord is entitled to and can claim rent without necessarily leading to an inference of waiver affecting his right to eject the tenant on the ground of forfeiture.

In the case of Toleman v. Portlmry (1872) 7 Q.B. 344, which was an action in ejectment under a proviso for re-entry on breach of covenants, the Plaintiff mentioned under an order for particulars, as instances of the breach, the permitting of a sale by auction on the premises without his consent and non-payment of rent, accrued due since the sale. The Defendant obtained an order staying the action as to the breach for non-payment of rent on payment of rent to the Plaintiff or into court, should he refuse it. The Plaintiff having refused, the rent was paid into court. At the trial the forfeiture by the sale by auction was proved, but it was contended that the said forfeit tire had been waived by the claim for rent for the subsequent period which was involved in the claim for forfeiture on the ground of non-payment of rent. In affirming the decision of the Queen''s Bench, Chief Baron Kelley observed at p. 352:

But it is said it is an injustice that the Plaintiff should be able to maintain the forfeiture and seek for the rent; but I cannot see this. The Plaintiff is clearly entitled to the money, either as rent if there was no forfeiture or as mesne profits if there was. But it is clear on the grounds, so forcibly and clearly stated in the court of Queen''s Bench, that the mere claim of forfeiture by reason of the non-payment of the rent does not in itself preclude the Plaintiff from relying on the previous forfeiture by reason of the sale by auction. When the rent was paid into court all proceedings in the ejectment for the forfeiture for non-payment of rent were at an end; but I cannot see on what ground it can reasonably be maintained that a landlord by claiming a forfeiture for non-payment of rent loses the benefit of a previous forfeiture.

This decision may be distinguished on the ground that the demand for rent there, as it stood, was for a period, subsequent to the forfeiture or determination of the tenancy, hut the observations, quoted, go much deeper. They are sufficient to show that there has been no waiver in the present case. Coleman''s case was followed by Devados, J. in the case of Koragalve v. Jakri Beary (1927) AIR (Mad.) 261, and he observed:

When a landlord is entitled to re-enter by reason of the forfeiture of the lease by the lessee he is also entitled to claim rent or mesne profits upto the date of obtaining possession and the fact that he claims in a suit rent or mesne profits, till he gets possession cannot be deemed to be a waiver of the right to re-enter. The moment he files a suit he takes an irrevocable step by asking for possession on the ground of forfeiture, and his asking for incidental remedy cannot be said to amount to a waiver.

To the same effect is that earlier decision of the Division Bench of the Madras High Court in the case of Padmanabhya v. Ranga ILR (1910) Mad. 161, which was cited and relied upon by Devadoss. J.

The facts of the case, Abdul Rashid v. Safar Ali Supra, relied upon by the learned advocate for the Petitioner, are not clear from the report, but this much is clear that the suit was not only for ejectment but also for recovery of arrears of rent for a period of six years after the default in the payment of rent, on which the cause of action for ejectment was based. There might have been other averments in the pleadings, inconsistent with an irrevocable decision to determine the tenancy on the ground of forfeiture but, in any case, the very fact that the lessor was claiming rent for a period, subsequent to the accrual of the cause of action for ejectment, which necessarily meant the determination of the tenancy was sufficient to justify a finding of waiver of the forfeiture. The lessor was suing to enforce his right of forfeiture six years after the default which gave him his right of action, that is, six years after the forfeiture had occurred and the tenancy had terminated, and at the same time asked for a decree for rent for these six years, as if the lease had continued all these years, Clearly, therefore, the lessor was making inconsistent claims, for which an inference of waiver of the forfeiture was perfectly legitimate and amply justified and the Court''s decision to that effect may well be supported. The facts of the case before us are, however, quite different. There is no averment here, inconsistent with an intention to determine the tenancy, and the rent claimed is only for the period upto the determination of the tenancy by notice. That the landlord is entitled to do, consistently with his intention to determine the tenancy and evict the tenant, and, accordingly, when there are no other circumstances justifying such inference," no waiver of the forfeiture should be inferred in the present case.

It is to be remembered also in the above connection, that the instant case, being clearly one under the Calcutta Thika Tenancy Act, the tenancy in this case could not have been terminated on the ground of breach of a condition in the lease, except by a notice u/s 4(a) of the Act, expiring with a month of the tenancy. The present case is, therefore, somewhat different from similar cases of forfeiture under the Transfer of Property Act and here the tenancy would plainly continue until expiry of the notice. That is clearly the intention of this new statute (the Calcutta Thika Tenancy Act), and, accordingly, the opposite party had to treat the Petitioner as a tenant until the end of Falgoon, 1360 B.S. and he was as such entitled to claim rent upto that period, without prejudice to his right to eject the Petitioner on account of the breach of the condition in the lease, on which inter alia the present proceeding was brought and, for eviction wherefore, the above notice u/s 4(a) was necessary.

We hold, therefore, that there is nothing in the claim for rent, made in the present case, inconsistent with an irrevocable decision on the part of the landlord opposite party to avoid the lease on the ground of forfeiture.

In the course of argument, reference was made by Mr. Roy to Section 15 of the Calcutta Thika Tenancy Act and it was contended that in the light of Sub-sections (7) and (4) of the said section, the kutcha receipt, Ext. A(74), must be deemed to be an acquittance in full of all demands for rent upto the date of the said receipt, namely 7th January, 1953 or, in other words, that it would amount in law to acceptance of rent by the Landlord upto that date which was long after the alleged breach and, thus, waiver of the same. We do not think that this argument is sound. Ext. A(74) shows that both parties agreed to postpone settlement of accounts and the granting of pucca receipt until the same. The tenant, therefore, was really waiving his right to have the final and formal receipt in terms of the first three Sub-sections of Section 15 and Ex. A(74) not being a final receipt but, on the face of it, kutcha or provisional, it would not come within the fourth Sub-section so as to attract its mischief. In any event, in view of our finding that Ex. A(74) does not relate to the disputed tenancy (holding No. 154) but to the encroached land of holding No. 153, it is not at all relevant in this case and cannot attract Section 15. That section, therefore, cannot assist the Petitioner.

In the above view, we hold that there was no waiver of the forfeiture in the instance case before us and this Rule must fail.

The Rule is, accordingly, discharged with costs, hearing fee being assessed at three gold mohurs.