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Ladhuram Manormal Vs. Chimniram Dongardas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 310 of 1942
Judge
Reported in(1946)48BOMLR608
AppellantLadhuram Manormal
RespondentChimniram Dongardas
Excerpt:
.....of property act (iv of 1882), section 114 - forfeiture, relief against-right of lessee-whether lessee's assignee can avail himself of the right.;the privileges of a lessee in respect of a right to relief against forfeiture can in a proper case be extended to his assignee, whether the assignee acquires his rights by transfer or by operation of law.;doe, lessee of whitfield v. roe (1811) 3 taunt. 402, humphreys v. morten [1905] 1 ch. 739, and ahmad husain v. riaz ahmad (1914) 12 a.l.j.r. 1085, relied on. - - 4. it is next argued that this is not a proper case for the grant of relief, since the lessee himself by his conduct had disentitled himself from relief and his mortgagee, whose duty it was to keep himself informed of the payment of rent by the lessee, cannot be in a better..........the respondent is in two cases the lessee and in two other eases the auction-purchaser of the lessee's rights in execution of the decree in a suit brought by himself against the lessee as mortgagee of the lessee's rights. some years after the mortgage the lessor sued the lessee on the lease, and the two suits were compromised on the lessee undertaking to pay up, all the rent in arrears by a certain date, failing which the lease was to be forfeited and the lessor given a right of re-entry. it is to be noted that the mortgagee was not a party to those suits between the landlord and the tenant. during this period the mortgagee sued his mortgagor (the lessee) and obtained a decree. two executions of the landlord's decree were taken out by the lessor; and in august 1938 the lessor.....
Judgment:

Macklin, J.

1. The appellant in these cases is the lessor of certain house property. The respondent is in two cases the lessee and in two other eases the auction-purchaser of the lessee's rights in execution of the decree in a suit brought by himself against the lessee as mortgagee of the lessee's rights. Some years after the mortgage the lessor sued the lessee on the lease, and the two suits were compromised on the lessee undertaking to pay up, all the rent in arrears by a certain date, failing which the lease was to be forfeited and the lessor given a right of re-entry. It is to be noted that the mortgagee was not a party to those suits between the landlord and the tenant. During this period the mortgagee sued his mortgagor (the lessee) and obtained a decree. Two executions of the landlord's decree were taken out by the lessor; and in August 1938 the lessor obtained a warrant for possession. In September 1938 the lessee's rights were bought at execution by the mortgagee of those rights, and in due course he interfered with the execution of the warrant for possession obtained by the landlord. The consequent executions and applications for relief against forfeiture presented by the mortgagee-auction-purchaser resulted in the executions being dismissed; and the landlord has now come to us in second appeal against the dismissal of his executions and also against the orders allowing the auction-purchaser relief against the forfeiture clause, in the compromise decree.

2. It is beyond question that the lessee himself would have been allowed to make an application for relief against forfeiture even in execution, since Section 114 of the Transfer of Property Act, though not in terms applying to execution, would (it has been held) apply to the execution of a compromise decree, which, in so far as it contains a clause for forfeiture, takes the place of a lease: see Balambhat v. Vinayak Ganpatrav I.L.R (1911) Bom. 239 : 13 Bom. L.R. 154.

3. But we are told that the auction-purchaser in these cases is not in the same position as the actual lessee; and the argument generally speaking is that the lessee's assignee (whatever form the assignment or transfer may take) is not entitled to such rights of the lessee as are merely equitable rights and are not rights running with the land. No authority is cited in support of this contention; and , so far as we have been able to ascertain, no such authority exists. It is merely argued on general principles that a right of this kind cannot extend to an assignee in the absence of a statutory provision to that effect, since Section 114 of the Transfer of Property Act (the only statutory provision in point) does not in terms refer to assignees at all and ought not to be interpreted, as referring to them. There is however a decision of the Allahabad High Court in Ahmad Husaim, v. Bias Ahmad (1914) 12 A.L.J.R. 1085, where the benefit of Section 114 was extended to a sub-lessee. There is also the authority of a number of English cases to say that, quite apart from the English statutes, the lessee's assignee could be granted the same rights as the lessee himself under the ordinary rules of equity. In that connection I may refer to Doe, Lessee of Whit field v. Roe (1811) 3 Taunt. 402. That was a case decided in 1811 at a time when statutes limiting the discretion of the Courts to grant relief against forfeiture were in existence. But from the report it is clear that even before the enactment of the statutes the Courts would relieve against an ejectment for non-payment of rent upon the tenant bringing all the rent into Court; and the decision in the case was that there was no distinction between a lessee and a mortgagee; on the contrary, that the mortgagee in this case was the actual tenant, because the mortgagee's estate had become absolute. That is exactly the position with which we have to deal here, where the mortgagee has himself bought the lessee's rights. I may also refer to Humphreys v. Morten [1905] 1 Ch. 739, where relief was given to the mortgagee of the assignees of a lessee. We have no doubt that the privileges of a lessee in respect of a right to relief against forfeiture can in a proper case be extended to his assignee, whether the assignee acquires his rights by transfer or by operation of law.

4. It is next argued that this is not a proper case for the grant of relief, since the lessee himself by his conduct had disentitled himself from relief and his mortgagee, whose duty it was to keep himself informed of the payment of rent by the lessee, cannot be in a better position than the lessee. I do not propose to go into this question. It is admittedly a matter of discretion whether the Court will or will not grant relief of this kind; and, provided the principles on which it acts are not wrong, no Court of second appeal will interfere with the exercise of discretion.

5. The appeals fail and are dismissed.


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