1. This was a suit brought by the plaintiff to recover possession of the lands described in the plaint, and Rs. 240 as arrears of rent for the years 1918 to 1921 and Rs. 400 as profits for the years 1921 to 1924, and Rs. 60 as interest on the two sums.
2. It appears that a permanent lease was passed in favour of one Vithal Sakharain Kothari, the father of defendants Nos. 1 to 3 by Vaman Krishnaji Naik on August 80. 1885,
3. In the lower Court the defendants contended that the plaintiff had not acquired the right of the landlord as the real owners were the daughters of Vaman, and not the vendors of the plaintiff, who were the heirs of Krishnaji. It was contended that Krishnaji, the father of Vaman, died in the year 1882 and Varnan died in 1900, and therefore the persons entitled to the interest of the landlord were the daughters of Vaman. It was further contended by the defendants that the plaintiff was estopped from making the present claim, and that the claim was not within time.
4. The learned Subordinate Judge held that Krishnaji died in the year 1916, as he had attended a conference in the year 1916. He relied on the evidence of witnesses Exhibits 77, 78 and 79, which proved that Krishnaji died in the year 1916. In addition to the oral evidence, there is the letter, Exhibit 105, which would clearly show that Krishnaji was alive at the time of the execution of the rent-note in suit in 1885, and had deputed his son Vaman to secure the permanent rent-note with regard to the lands in suit.
5. We are satisfied on the evidence on the record that Krishnaji died in 1916 and not in 1882 as alleged by the defendants. It is clear, therefore, that the plaintiff's vendors owned the suit property at the date of the sale-deed Exhibit 96.
6. The next question is whether there was a forfeiture of the permanent tenancy of defendants Nos. 1 to 3. The learned Subordinate Judge held that the defendants partitioned the property describing themselves as the owners of the land and also passed several mortgages and sale-deeds in favour ofstrangers. in which they described themselves as owners.
7. It appears that in the year 1907 after the discovery of a treasure-trove in one of the lands in suit there was an order of the Collector changing the khata of the lands in the names of the defendants. The evidence on the record shows that up to the year 1906 the rent was regularly paid, but subsequently the defendants evaded payment of the rent to the landlord and got the khata of the lands in suit entered in their name in the year 1907. It does not appear that any rent has been paid by the defendants after 1907, but mere non-payment of rent does not make their holding adverse to the landlord.
8. The only question in this appeal Is whether the defendants' action in treating the land as their own in the partition proceedings and in the several alienations amounts to a disclaimer of the landlord's title. Under Section 111(g) of the Transfer of Property Act:-
A lease of immoveable property determines,
(g) by forfeiture;...in case the lessee renounces his character as such by selling up a title in a third person or by claiming title in himself; and in either ease the lessor or his transferee does some act showing his intention to determine the lease.
From the conduct of the defendants, there is no doubt that they set up a title in themselves by claiming ownership of the property in the partition proceedings and in the several alienations by way of sale-deeds and mortgages. But the question is whether the lessees have renounced their character as tenants,
9. According to the decision in Prag Narain v. Kadir Bahksh I.L.R. (1913) All. 145 the denial of his landlord's title by a tenant, in order to work a forfeiture, must be unequivocal and unambiguous; mere non-payment of rent or even the mortgaging of the premises as belonging to the tenant does not necessarily constitute such a denial.
10. In Kemalooti v. Muhamed I.L.R. (1017) Mad. 629 it was held that in order that a denial of landlord's title should work a forfeiture of the tenancy, three things are necessary : (a) the tenant must set up title either in himself or in a third party, inconsistent with their mutual relationship, (b) the denial must be direct and unequivocal and not casual, and (c) it must be made to the knowledge of the landlord. No doubt, in that case a statement was made in a document relating to a different property and in the description of the boundaries the lands leased were described as belonging to the tenants. Seshagiri Ayyar J., however, observes as follows (p. 632):-
In ordinary parlance the expression 'renounce' would connote that some act is done to the knowledge of the landlord which was calculated to convey to him the impression that the tenant repudiated his title.
Napier J. also took the same view, and observed as follows (p. 686):-
It seems to me that both the words ' repudiation' and ' renunciation' require something a great deal stronger than a mere assertion not communicated (to) the landlord. It is impossible to lay down a hard and fast rule ; but to my mind a very good test to apply would be, whether the assertion would operate as a starting point for adverse possession against the landlord (vide Doe v. Williams (1777) 2 Cowp. 621 where LORD Mansfield applies this test) and viewed in this light, the assertion will not come within its mischief.
11. In Raman Nair v. Mariyomma I.L.R. (1919) Mad 480 the same view was taken and it was held that a denial by the tenant of his landlord's title must, in order to work a forfeiture of the tenancy, be brought home to the knowledge of the landlord and it must be unequivocal and clear. In that case the tenant obtained a sub-lease in which he described himself as the janmi of the lands.
12. In Maharaja of Jeypore v. Rukmini Pattamahdevi I.L.R. (1919) Mad. 589 : 21 Bom. L.R. 855 P.C. their Lordships of the Privy Council, after referring to the Real Property Act (8 & 9 Vic, c. 106, Section 4) which provided that no feoffment should have in future any tortuous operation, held that the reason for imposing a forfeiture according to English law ceased, and observed as follows (p. 599):-
It never was applicable in India, and their lordships can find no authority for saying that an ' innocent conveyance' ever operated in England as a cause of forfeiture, or that it has ever been held so to operate in India.
13. In the present case the lands were transferred to the names of the defendants in the years 1907 and it is possible that the defendants considered that they were the owners of the lands, but they never communicated to the landlords their desire to renounce the relationship of landlord and tenant, and it appears that owing to the indifference of the heirs of the landlord, their rights were never asserted for a very long time, and the whereabouts of the heirs of the original landlord could not be traced since 1907 till 1924 when their rights were purchased by the plaintiff.
14. In these circumstances, we think the conduct of the defendants in partitioning the lands and passing the sale-deeds and mortgage deeds does not amount to a denial of the landlord's title, or a disclaimer of the landlord's title, so as to enable the landlord to bring a suit in ejectment against the defendants,
15. We think, therefore, that the learned Judge was wrong in holding that since the year 1921 defendants Nos. 1 to 3 renounced their character as lessees by claiming title in themselves and thereby incurred a Forfeiture of the lease of August 80, 1885.
16. We have no doubt on the evidence that the plaintiff has obtained the rights of the landlord,
17. It was urged on behalf of the appellants that the powers-of-attorney passed by Mahadeo, Durgabai and Salubai, the heirs of Krishnaji, were invalid under Section 33 of the Indian Registration Act, The powers-of-attorney were passed for the purpose of the execution of the sale-deed, and according to the full bench decision of this Court in Sitaram Laxmanrao v. Dharamasuhhram Tanrukhram I.L.R. (1927) Bom. 971 : 29 Bom. L.R. 1124F.B. the objection that the powers-of-attorney were not executed in the manner provided by Section 33 of the Indian Registration Act cannot be sustained.
18. The result, therefore, is that the plaintiff is entitled to a declaration that he is the landlord of the lands in suit and is entitled to receive rent at the rate of Rs. 80 per year from the defendants. The plaintiff is also entitled to the rent for the six years before suit.
19. We, therefore, reverse the decree of the lower Court, and give a declaration in favour of the plaintiff that he has acquired the interest of the landlord of the lands in suit, and order that he is entitled to recover rent for the six years before suit, and rent at the rate of Rs. 80 from the date of suit till the date of this decree, and give a declaration that the plaintiff is entitled to recover rent at the rate of Rs. 80 every year from the defendants and their alliances, The defendants to pay the costs throughout.
20. Civil Application No. 136 of 1932 is granted and the wife should be brought on the record as guardian of appellant No. 1.
21. The rule in the application for stay of execution is made absolute. No order as to costs.
1. This is a suit by the landlord to eject a permanent tenant and to recover arrears of rent. The lease was executed in 1885 by. one Vaman Krishnaji Naik, and reserved a rent of Rs. 75 for seven years and Rs. 80 thereafter. The lessor died in 1900. The plaintiff, who is the assignee of the heirs of Vaman's father, Krishnaji Vithal Naik, was opposed on the point that Krishnaji Vithal had predeceased his son and that the real heirs were Vaman's own descendants, twodaughters. and that, therefore, plaintil got nothing by his purchases. But, there is a great deal of evidence to show that Krishnaji died in 1916. This evidence is circumstantial and that of persons who would know the history of the family, and it is discussed and has been accepted by the learned Judge, and I see no reason to reject it. I think the plaintiff's title to sue is made out.
2. The property is in the Ratnagiri District, and it appears that its owners had lived in Indore in the Central Provinces. It had stood for years in the name of Krishnaji's father, and from 1900 no rent was paid. The revenue authorities had some difficulty as to the title to be recorded, and finally on the theory that the real owners could not be traced, entered the permanent tenant's name as khatedar, though the real character of his holding was not known at the time. The original tenants had also of late partitioned the leasehold, mortgaged some part of it and sold others and generally behaved as if they were full owners. It is plaintiff's case that this conduct operates to bring in the terms of Section 111 (g)(2) of the Transfer of Property Act, and amounts to a renunciation of the character of tenant and a claim by the tenants of title in themselves with the consequence that the tenancy is forfeited. We have considered all the case law available, and the precedents have been discussed in my learned brother's judgment.
3. The facts here are that, though there have been acts in connection with the land implying that the tenants were full owners and they have so described themselves toothers. there is nothing to show that any of these things were done to the landlord's knowledge, so that they could have originated a title by adverse possession. None of the cases go so far as to hold that conduct as between a tenant andothers. which would have amounted to a denial of title as between the tenant and his landlord, is such a denial as to incur the penalty of forfeiture, and it would not be reasonable so to hold. I think that there has not here been made out such a denial as would justify us in holding that the permanent tenancy has been forfeited.
4. The last point made by the appellants, as to the defective registration of the plaintiff's deed of sale, is concluded by the full bench decision of this Court in Sitaram Laxmanrao v. Dharama sukhram Tanrukhram I.L.R. (1927) Bom. 931 : 29 Bom. L.R. 1124F.B., I think that the status of permanent tenant continues, and that the plaintiff is entitled to rent for the six years next before suit and for the period since intervening till judgment as detailed in my learned brother's judgment. I would vary the lower Court's decree accordingly.