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Jamnadas Dharamdas Vs. Dr. John Joseph Ferreira - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Revision Application No. 1596 of 1965
Judge
Reported in(1970)72BOMLR505
AppellantJamnadas Dharamdas
RespondentDr. John Joseph Ferreira
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), sections 28, 12, 5--indian contract act (ix of 1872), section 74--transfer of property act (iv of 1882), sections 111, 114, 114a--lessee constructing buildings on land leased by landlord-deed of lease providing for possession of land free of buildings upon expiration of lease and for its forfeiture and reentry on land and buildings upon breach of conditions of lease--whether court in suit for ejectment entitled to pass decree in respect of buildings--applicability of section 74 of indian contract act to deeds of sale, leases and trusts-words ''condition of the tenancy' and 'condition' in sections 111(g) & 114a of transfer of property act whether refer to condition of tenancy.;the plaintiffs leased to the.....k.k. desai, j.1. [his lordship after stating the facts, proceeded]. it is convenient first to deal with the questions raised on behalf of the plaintiffs in the civil revisional application. the first contention made by the plaintiffs is that the lower appellate court has failed to exercise jurisdiction which it had under the rent act when it held against plaintiffs that it had no jurisdiction to grant the decree in ejectment in respect of the two buildings constructed by the defendant on plot no. 12. in that connection reference was made to section 28i of the act which inter alia provides.28. (1) notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be.....
Judgment:

K.K. Desai, J.

1. [His Lordship after stating the facts, proceeded]. It is convenient first to deal with the questions raised on behalf of the plaintiffs in the Civil Revisional Application. The first contention made by the plaintiffs is that the lower appellate Court has failed to exercise jurisdiction which it had under the Rent Act when it held against plaintiffs that it had no jurisdiction to grant the decree in ejectment in respect of the two buildings constructed by the defendant on plot No. 12. In that connection reference was made to Section 28I of the Act which inter alia provides.

28. (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,

(a) in Greater Bombay, the Court of Small Causes, Bombay,

(aa) ...

(b) ...

shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply.... and subject to the provisions of Sub-section (2), no other court shall have jurisdiction to entertain any such suit, ...

The submission was that the two buildings constructed by the defendant on plot No. 12 were 'premises' within the meaning of that phrase as denned in Sub-clause (b) of Sub-section (8) of Section 5 of the Act. This Sub-clause (b) of Section 5(8) provides :

'Premises' means-

(a) ...

(b) any building or part of a building let separately...

The submission was that these two buildings must be held to be the 'premises' within the meaning of the above definition. It should be held that the suit filed by the plaintiffs was between landlords and tenant. The suit was relating to recovery of possession of the premises-buildings mentioned in the plaint and erected on the plots mentioned in the lease. The submission was that the right to recover possession of the building was claimed under the forfeiture clause agreed to between the parties under the above lease. Having regard to the findings of the two Courts below there was no dispute that the plaintiffs were entitled to possession of the two plots mentioned in the lease. There can be, in law, therefore, no dispute that in execution of the decree for possession of the lands of the two plots under Sub-clause (h) of Clause II of the lease the executing Court would be bound to direct the defendant to remove the two buildings from the plots so that the decree in ejectment in respect of the plots could be completely carried out. The submission was that the rent Court-the Court of Small Causes, which thus would have jurisdiction in executing a decree in ejectment of the defendant from the two plots must be held to have jurisdiction to deal with these buildings under the forfeiture clause IV which entitled the plaintiffs to possession thereof. The submission was that if the Court, as executing Court, had jurisdiction to deal with the buildings constructed on the plot by the defendant, the finding of the appellate Court that in considering the parties' rights under the forfeiture clause that very Court had no jurisdiction to decide the questions arising between the parties was not correct. The submission was that this question was directly in relation to recovery of possession of the demised plots since the buildings were standing on the demised plots. In that connection by relying upon the authorities, which we will presently mention, the submission was that the phrase 'relating to the recovery of rent or possession of any premises' as contained in Section 28 gives wider jurisdiction to the Court of Small Causes than merely jurisdiction to eject parties from the premises let. The Court is empowered in connection with ejectment of a party from the premises let to deal with all incidental and ancillary disputes and questions which arise for decision between the parties. These submissions were denied on behalf of the defendant and the argument was that jurisdiction of the rent Court is confined to delivery of possession of premises demised under a lease and premises in possession of a tenant as tenant. There was no jurisdiction in Court to deal with premises specifically not demised under a lease to a lessee. The larger submission was that the claim for possession of the buildings, which were not demised, was a claim in respect of personal obligations undertaken by the defendant and had nothing to do with the tenancy of the defendant. For this reason, the submission was that the finding of the lower appellate Court that it had no jurisdiction to give decree in ejectment in favour of the plaintiffs in respect of the two plots should be accepted as correct.

2. Now, the submissions made on behalf of the plaintiffs are based on the decision of this Court in the case of Mehersingh Sethi v. Khurshed Satarawalla (1954) 50 Bom. L.R. 540, and the decision of the Supreme Court in the case of Importers v. Phiroze : [1953]4SCR226 . Reliance was also placed on the decision of the Full Bench of this Court in the case of Daitatraya Krishna v. Jairam Ganesh : AIR1965Bom177 , and on a decision of a Division Bench of this Court in Mirabelle Hotel v. Mann Subedar. On behalf of the defendant reliance was placed on the decisions of the Supreme Court in the case of Dr. K.A. Dhairyawan v. J.R. Thakur (1958) 61 Bom. L.R. 548.

3. The question in the case of Mehersingh Sethi related to a lease of premises belonging to one Satarawalla and situated at Mahableshwar, described as Ripon Hotel premises. In the lease between the parties the tenant Mehersingh Sethi had agreed that Satarawalla, the landlord, should have a charge on Orient Hotel premises situated at Crawford Market in the City of Bombay for recovery of arrears of rent due by the defendant. Satarawaila filed his suit for recovery of rents of Ripon Hotel and enforcing the charge on Orient Hotel mentioned in the lease in the Court at Wai which had jurisdiction in respect of properties at Mahableshwar. The question raised on behalf of the tenant was that the rent Court at Wai had no jurisdiction to try the suit inasmuch as under Section 28 the rent Court could have jurisdiction in suits relating to recovery of rent. This submission was negatived by this Court, The finding was (p 549):. in order to determine the jurisdiction of the special Court, the only thing that has to be looked at is the subject-matter of the suit; and if the subject-matter of the suit is that which is described in Section 28, then the special Court has jurisdiction, and no further question as to its pecuniary or territorial jurisdiction can arise. ... In our opinion Section 28 confers jurisdiction upon the special Court not only to decide the questions referred to in that section, but also all matters which are incidental or ancillary to the determination of those questions.

The main question as already pointed out in the suit is, whether any rent is due by the defendant, and what is the quantum of the rent. Having decided that question, it would only be then that the Court will have to consider, as incidental or ancillary to the decree to be passed for rent, as to whether a charge should be given to the plaintiff, and whether, in default of the defendant satisfying the decree, the charge should be enforced.

4. The Division Bench referred to the previous decision in the case of Importers v. Phiroze which we will presently refer. As regards the question of enforcement of charge by the rent Court, the observation was (p. 550) :-. If a claim for compensation is incidental and ancillary to a claim for possession, the claim for a charge in respect of a decree for arrears of rent is also incidental and ancillary to that decree. If the Court has jurisdiction to pass a decree for rent, the Court must have equally jurisdiction to determine the mode in which the plaintiff can recover the decretal amount.

5. It is necessary to record that this case is clear authority that the rent Court would have, in connection with ejectment and delivery of possession under the Act, jurisdiction to decide all incidental and ancillary claims relating to ejectment and delivery of possession. This jurisdiction could be exercised even in respect of properties not demised under the lease, as was in fact done in the above case by holding that charge on the Orient Hotel premises situated at Bombay could be enforced by rent Court at Wai dealing with the rents due in respect of properties situated at Mahableshwar. In the case of Importers v. Phiroze the question before the Supreme Court related to a party who was introduced into the premises let by the tenant and who claimed to be a sub-tenant. This party was joined in the suit for ejectment on behalf of the plaintiff by describing him as a trespasser and in connection with his occupation and possession of the premises let compensation was claimed not only against the main tenant but against this party, who was joined as a trespasser. The contention on behalf of this party before the Supreme Court and in this Court had been that the claim against him for ejectment and compensation could not be entertained by rent Court because he was mentioned in the plaint as a trespasser and under Section 28 of the Act suits against trespassers could not be maintained in the rent Court. The question was disposed of by Chief Justice Chaplain this Court, observing as follows (p. 274):. Now, one must not forget a very important principle of law that if the plaintiffs had obtained a decree against defendant No. l and had not made defendants No. 2 a party at all, in law it could have executed the decree against defendants No. 2. If defendants No. 2 were trespassers and could not allege that they were in possession of the property in good faith, the plaintiff would have been entitled to get possession from them in execution. ... The important right which they (defendants No. 2) claimed was that they were sub-tenants protected under the Rent Act. That right has been adjudicated upon by the Small Cause Court, and in any view of the case and under any circumstances that right could only be determined by that Court and by no other Court under Section 28.

He also rejected the contention made on behalf of defendants No. 2 that although the Small Cause Court could pass a decree under Section 28 against the landlord, in execution the decree would be restricted to defendant No. 1 alone and it could not be executed against anyone else if the decree exceeded the pecuniary jurisdiction of the Small Cause Court. In that connection he observed (p. 275) ;

There is no limitation put by the law upon the executability of that decree, and therefore in my opinion if the plaintiff had obtained a decree only against defendant No. 1, he could have proceeded to execute it against defendants No. 2 on the allegation that they were obstructing possession and they had no right to obstruct possession.

The Supreme Court disposed of the question by observing (p. 277) :

The last part of the contention need not detain us long, for the suit was undoubtedly one for possession of the flat and the claim for compensation was only incidental and ancillary to the claim for possession. Jurisdiction to entertain a suit for possession will empower the Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. ... Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises, but also 'to deal with any claim or question arising out of this Act or any of its provisions.' There is no reason to hold that 'any claim or question' must necessarily be one between the landlord and the tenant..... The claim or question as to the respective rights of the plaintiffs and defendant No. 2 thus raised in the plaint certainly arises out of the Act and the language of Section 28 appears to be wide enough to cover the same.

6. Now, Mr. Sorabjee is right when, on the basis of this decision, he submits that if the Court of Small Causes could deal with the question of removal of the buildings standing on these plots towards completion of execution of a simple decree for ejectment of the defendant passed in respect of the two plots, it would be impossible to hold that as a trial Court the very same question as regards the two buildings arising between the parties was not within the jurisdiction of that Court. We have no doubt that in execution of decree of ejectment of the defendant the Court of Small Causes would always be entitled to deal with the questions arising between the plaintiffs and the defendant in connection with the two buildings constructed by the defendant and standing on plot No. 12. Conversely, we are of the view that it is impossible to hold that as a trial Court in the first instance this Court has not acquired jurisdiction under Section 28 to deal with the same question at the trial of a suit. In the Full Bench decision of this Court in the case of Dattatraya v. Jairam in connection with the question of jurisdiction it was pointed out that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. The Court referred to the several previous decisions wherein it was observed that the jurisdiction of the Court should ordinarily be determined at the time of the institution of a suit when the plaint is filed, that the plea of the defendant will not determine or change the forum and that in order to decide whether a suit comes within the purview of Section 28 what must be considered is what the suit as framed in substance is and what the relief claimed therein is. The words used are 'relating to recovery of rent or possession' and not 'for recovery of rent or possession'. The words 'relating to' are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this section. Reference was made to the two decisions which we have referred to above with approval of the principle that under Section 28 the rent Court has jurisdiction not only to decide the questions referred to in the section, but also all matters which are incidental or ancillary to the determination of these questions.

7. In the case of Dhairyawan v. J.R. Thakur, a suit was filed by the landlords not in the rent Court but on the Original Side of this Court after obtaining leave under Order II, Rule 2, of the Civil Procedure Code, reserving to them liberty to file a separate suit with respect to the land on which the building was situated. Lease was executed in 1927 for 21 years. The lease was of an open plot of land. The lessee had agreed to construct and put up a building on the plot after bearing and paying at least certain amount by way of costs that was mentioned in the lease. On the termination of the lease at the end of 21 years the lessees were to surrender and yield up the demised premises including the building with its fixtures and appurtenances to the lessors without any compensation for the same. The lease was to expire in 1948 and the plaintiffs gave usual notice for redelivery of possession upon expiry of the period. The tenants claimed protection of the rent Act and contended that the plaintiffs were merely entitled to payment of rents. The plaintiffs thereafter filed their suit on the Original Side of this Court merely for a declaration that they had become owners of the buildings and for getting a receiver appointed so that all the rents which were being earned by the defendants-tenants from the occupants of the buildings could be secured to the plaintiffs. The question that was raised related to the true effect of the provisions in the lease that the plaintiffs could not become owners of the buildings constructed by the tenants having regard to the provisions of Section 108 of the Transfer of Property Act. The finding of the Court, as appearing in the Head-Note was that there was nothing under Section 108 of the Transfer of Property Act to prevent the lessees contracting to hand over any building or structure erected on the demised land by them to the lessors at the end of the lease without receiving any compensation. Such a contract, however, does not transfer the ownership in the building to the lessors while the lease subsists. One of the contentions raised was that the plaintiffs could not enter upon the land for purposes of collecting the rents without the consent of the tenants. The plaintiffs could only enter upon the land as provided by the rent Act. The Court observed (p 553) :..The declaration which the appellants (plaintiff's) seek, however, does not ask for a declaration that they are entitled to enter upon the land. All that it seeks is that they are entitled to the rents and profits of the building which had been let out to several persons by the respondents. The appellants merely seek a declaration of their right to collect the rents and profits from the building. As to how they collect the same was their concern. There seems, therefore, to be no valid objection in law to granting the relief sought by by the appellants.

Now, it is quite clear that there is nothing in the observations of the Court to suggest that on behalf of the defendant it was contended that the Original Side of this Court had no jurisdiction to grant the declarations claimed or had no jurisdiction to deal with the matters arising in the suit. Indirectly, the submission on behalf of the defendant in the case was that since the plaintiffs as landlords were not entitled to enter upon the land except by an application made before the rent Court, the declarations claimed in the suit must not be granted. The lower appellate Court has based its finding that it had no jurisdiction to grant relief to the plaintiffs in respect of the claim for possession of the buildings on the above observations made in the case of Dhairyawan. The observation of the lower appellate Court is that the claim of the plaintiffs in Dhairyawan's case arose out of the terms of lease of the land. The plaintiffs had claimed title to the building which was constructed by the lessee and yet the suit had been filed on the original side of the High Court. It observed :-

It is obvious that if the claim as to title to the building was not de hors the Rent Act, it could not have been decreed in a suit filed in the High Court.

8. But it criticized the trial Court's finding that Dhairyawan's case could not be distinguished on the ground that it was a suit only for the building whereas the present case is a composite suit, both for the lands and buildings. It observed that the difference in the facts of the two cases was, in its opinion, not substantial. In its view the ratio of the decision in Dhairyawan's case was that if a question of title is raised by the plaintiff-lessee in respect of the buildings standing on the demised land, the same would be within the jurisdiction of the Original Side of the High Court and would not be within the jurisdiction of the Small Causes Court-Rent Court. In further discussion it observed that the present suit was a composite suit for possession of land as well as structures constructed by the lessee and observed that the claim for possession of the structures did not arise out of any provisions of the Rent Act. The claim in the suit was, according to it, in substance a claim for declaration of title to the buildings. That claim to the buildings and structures was quite independent of the declaration for possession of land. For this reason, purporting to follow the above ratio of Dhairyawan''s case, it held that it had no jurisdiction to grant relief in respect of the structure buildings standing on plot No. 12. Now, in our view in arriving at its above findings the lower appellate Court has failed to follow the first principle that in determining the question of jurisdiction the case made out by the defendant on his written-statement is entirely irrelevant. The most appropriate way to proceed to decide the question of jurisdiction is to read the plaint in the correct manner. It is quite apparent on the reading of the plaint in the present case that ejectment of the defendant from the suit land involved the question of possession of lands and buildings constructed on the lands under the forfeiture clause IV in the lease made between the parties. Under Sub-clause (h) of Clause II of the lease upon termination of the lease the plaintiffs were entitled to vacant possession of the land. In ordinary circumstances, it was obligatory on the defendant to deliver possession of the land free of all buildings and structures and levelled and put in good order and condition to the satisfaction of the plaintiffs. Direct question between the plaintiffs as landlords and the defendant as tenant relating to the ejectment of the defendant from the land related to the rights which the plaintiffs claimed as incidental to the relief of ejectment to the buildings constructed by the defendant on the land. The question was apparently of the true effect of the condition of the tenancy as agreed to between the parties in forfeiture clause IV in the lease. The question was in fact not the claim for the title to the buildings but the question was the rival rights of the parties in respect of the buildings situated on the demised land whilst granting an ejectment decree in favour of the plaintiffs under Sections 12 and 13 of the Rent Act. There is nothing in Dhairyawan's case which applies to the questions raised in the plaint in the present suit. The trial Court was right when in distinguishing the facts in Dhairyawan's case it observed that this was a composite suit for ejectment of the defendant not only from the lands but also from the buildings and this case was in that respect vitally different from the plaint in the suit in Dhiaryawan's case. As already observed by us, when the questions relating to the rival rights of the parties to the two buildings on plot No, 12 were within the jurisdiction of the Court of Small Causes as an executing Court in the ejectment decree already passed by both the Courts below it cannot be held that as a trial Court in the suit it had no jurisdiction to deal with the very same question. In holding that it had no jurisdiction to give relief to the plaintiffs in respect of the buildings on plot No. 12 the lower appellate Court failed to exercise the jurisdiction which it had in dealing with the questions. Its finding that it had no jurisdiction is accordingly set aside. On the second question raised by the plaintiffs on prima facie grounds it appears to us that the provisions of Section 74 of the Contract Act relating to the breach of executory contracts have no bearing and cannot apply to completed transfers of property like deeds of sale and leases and trusts as created in accordance with the Transfer of Property Act and the Indian Trusts Act. This is so because covenants contained in such deeds of transfers must be binding on all parties thereto in every small detail unless and until for extraneous reasons one of the parties thereto is in a position to have these transfers completely avoided or cancelled. Obligations undertaken by parties to deeds of transfers must be as on completed contracts specifically enforceable in all ordinary circumstances. It is difficult to understand how the provisions of Section 74 of the Contract Act relating to executory contracts can be considered for application to the deeds of transfers like the deed of lease in the present case. Penal clauses in the deeds of leases are impossible to be avoided because as already observed, the transfers being completed and executed must be specifically enforceable between the parties thereto. Exceptions to these broad principles arise in respect of forfeiture clauses contained in a deed of lease because of statutory provisions in Sections 114 and 114A of the Transfer of Property Act. Relief from forfeiture can never be possible or could be granted apart from the powers under these two sections. We have, therefore, not been able to understand the lower appellate Court's observation that the forfeiture clause IV in the present case was in the nature of penalty and relief could be granted in respect thereof because it provided for delivery over of the buildings constructed by the defendant on plot No. 13. That obligation was part of a covenant of a completed deed of lease relief in respect whereof, if any, must be available under Sections 114 and 114A of the Transfer of Property Act. We find it difficult to envisage power in Court to relieve the defendant from the provisions of Clause IV unless he was able to fall within the ambit of Sections 114 and 114A of the Transfer of Property Act. There is nothing in Section 74 of the Contract Act which can be made applicable to this forfeiture clause...

9. Mr. Adik for the defendant commenced arguments by supporting the lower appellate Court's judgment as regards jurisdiction. We have dealt with this question in sufficient detail. His second contention was in connection with the true effect of the provision in Clause IV in the deed of lease. His submission was that the true effect of the provisions in Section 108 read with Sections 114 and 114A of the Transfer of Property Act was that there could be no forfeiture of any property that was not subject-matter of demise. The submission was that in so far as under Clause IV of the lease the defendant agreed that the plaintiffs would be entitled to re-enter upon and take possession of the buildings and structures put up by the defendant, the obligation was of a personal nature. In his submission this agreement was not any condition of tenancy binding on the defendant. In that connection he relied upon the provision of Section 12(1) of the Act which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays... observes and performs the other conditions of the tenancy... He also relied on the first part of the provision in Section 114A of the Transfer of Property Act which provides, 'Where a lease of immoveable property has determined by forfeiture for a breach of an express condition'. In his submission this condition relates only to condition of tenancy and not personal obligation. He also relies on the following provision in Section Ill (g) of the Transfer of Property Act, viz.--

A lease of immoveable property determines-(g) by forfeiture; that is to say, (1) incase the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter....

The word 'condition' in his submission relates to the condition of tenancy and not to personal obligations binding on a tenant. In support of these submissions he has relied upon the decision in the case of R.M.R. Housing Society, Ltd. v. Combs [1951] 1 All E.L.R. 16. In that case the tenancy agreement provided that the tenancy was conditional on the tenant being and remaining in the employment of a third party and that the determination of that employment from any cause whatsoever should terminate the tenancy. The tenant left the employment, and the landlords claimed possession of the dwelling house on the ground that the tenant had broken an 'obligation of the tenancy' within the meaning of para (a) of schedule I to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. Apparently breach of an obligation of tenancy entitled a landlord under that Act to an ejectment decree. Having regard to the peculiar circumstances of this covenant given by the tenant in respect of the term of the tenancy, the question that arose before the Court was whether this term was an 'obligation of the tenancy' within the meaning of para (a) of Schedule I in the above Act. In connection with this provision in the tenancy agreement Scrutton, L.J., observed (p. 19) :-..I think it would be better to describe that as an undertaking by the tenant or an obligation of the tenant. It is not strictly an obligation of the tenancy, and it does not become so merely by those words being inserted into the agreement. They are words taken from para (a) of sched. I. Thus, it has not been shown that there was any breach of an obligation of the tenancy.

10. Sir Raymond Evershed, M.R., also observed (p. 20) :-..In so far as the clause consists of a condition or obligation, it is at least open to doubt whether such an obligation is enforceable at law at all, for it appears on the face of it to be an obligation to continue to serve a particular individual.

11. He further observed :..I think that the clause, in so far as it is a condition or obligation, is not within para (a) because it is not an 'obligation of the tenancy.' I agree with counsel for the landlords that these words 'obligation of the tenancy' must not be given a restricted or narrow meaning. They should be construed according to their ordinary sense, but, so construed, I take the phrase 'obligation of the tenancy' to mean something binding on the tenant as such, i.e., in his capacity as tenant as distinct from an obligation purely personal and collateral to the contract of tenancy.

12. On the question of ascertaining whether an obligation could be held to be collateral, he observed (p. 20) :-..I think the matter may be usefully tested-and it is a legitimate method of testing this particular form of lease-by considering what the position would be in the event of an assignment of the term during its contractual subsistence.

13. The question raised by Mr. Adik may be decided by applying the test which Sir Raymond Evershed, M.R., indicated in his above observations. The question is whether the right of the plaintiffs to re-enter upon the structures is a collateral agreement not relating to the tenancy of the, defendant or it is the condition of the tenancy. The test indicated by the Master of the Rolls is to find out whether upon assignment the clause would bind the assignee of the lease and would not be held to be binding on such assignee as being only a purely personal obligation of the previous tenant and/or lessee. That a lease could be assigned with the consent of the plaintiffs cannot be disputed. It would be impossible to hold that there is anything personal in the forfeiture clause IV in the lease which is only binding on the defendant personally and would not be binding on the assignee of the lease. A forfeiture clause similar to clause IV in the lease must be held to be a clause running with the land and binding on all the assignees. Apparently in the case before the appellate Court in England the clause had the effect of terminating the tenancy upon the tenant ceasing to be in employment of a third party. Such a clause could never be running with the land and binding on an assignee. The present clause conversely is one which is not of the nature of creating any personal obligation on the plaintiffs. This forfeiture clause deals with the estate of the tenant and the properties on the demised premises and does not attempt to create any purely personal obligation on the tenant.

14. The phrase 'Condition of the tenancy' and the word 'condition' in Sections 111(g) and 114A of the Transfer of Property Act must be held to refer to obligations accepted as binding terms for creation of tenancy. Ordinarily when there is written document of lease, these terms and conditions are in writing and can be found in the document. A breach of a term which is agreed to entitle a landlord to forfeit the lease and tenancy must be held to be a term agreed between, the parties as essential to and basis for continuance of the tenancy of the tenant. When such a term does not create purely personal obligation on the tenant as in the case of R.M.R. Housing Society, Ltd. v. Combs, which we have just referred to, it would be impossible to hold that the same is not a condition of tenancy. When the language in clause IV of the lease is read it is apparent that the plaintiffs and the defendant both agreed that in the events mentioned in that clause, the plaintiffs should be entitled to forfeit the lease and terminate the tenancy. These events must be held to have been agreed between the parties as conditions and basis for the continuance of the defendant as a tenant of the plaintiffs. The consequence to follow upon forfeiture is that the plaintiffs should be entitled to re-enter upon not only the two demised plots of land but also upon the buildings and structures standing on the plots. This clause does not provide for creating any purely personal obligation on the defendant and is a covenant running with the land. We are, therefore, unable to accept this submission. It is also apparent that forfeiture is incurred under clause IV. These are breaches of covenants (i) to pay rents due inspite of demands made in that connection and (ii) to pay taxes due inspite of demands made in that connection. The breaches of these covenants cannot be held to be breaches of purely personal obligations. These covenants are apparently conditions of tenancy. The submission that for these breaches forfeiture cannot be incurred under clause IV is without any substance whatsoever. The submission that these breaches are not breaches of conditions of tenancy within the meaning of Sub-section (1) of Section 12 of the Act also is without any substance.

[The rest of the judgment is not material to this report.]


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