P.N. Singhal, J.
1. As the two courts below have decreed the plaintiffs suit for the recovery of arrears of rent and eviction, the defendants have filed this appeal against the judgment and decree of the Distract Judge of Pali dated January 4, 1968.
2. It is admitted that defendant Sangatmal was a tenant of plaintiff Smt. Kastoori Bai in a shop which carried a monthly rent of Rs. 10. The plaintiff filed the present suit with the allegation that the said Sangatmal paid the rent only up to December 25, 1960 and he became a defaulter thereafter. When a notice of termination of the tenancy was given by the plaintiff, the defendant, it is alleged, made a payment of Rs. 50 on account of the arrears up to May 24, 1931, but did not vacate the shop. The present suit was therefore instituted for his eviction and recovery of damages on July 28, 1961. Thereafter the defendant made a further pay-merit of Rs. 20 on August 2, 1961. He admitted the tenancy but denied the defaults. He pleaded that the notice was waived by the plaintiff. Five issues were framed in the trial court dealing with these and the other defences. That court upheld the plaintiff's plea regarding the defaults made in the payment of the rent and rejected the defence of waiver. It therefore decreed the suit for eviction as well as recovery of damages for the continued use and occupation of the premises. An appeal was taken to the District Judge of Pali, and as it has been dismissed by the impugned judgment, the legal representatives of defendant Sangatmal, who were brought on the record in the trial court On his death, have preferred this second appeal.
3. Before considering the arguments of the learned counsel for the appellants, it will be convenient to state the admitted facts regarding the payment of the rent. It is admitted that the tenancy commenced from March 25, 1957, It is also admitted that on December 29, 1960, defendant Sangatmal paid off the rent up to December 24, 1960. No rent was paid thereafter, and the plaintiff gave notice Ex. 2 to defendant Sangatmal on May 27, 1961, which reached him on. May 29, 1961, stating that as he had not paid the rent and had become a defaulter the plaintiff did not want to keep him as a tenant and that she had decided to terminate his tenancy on the expiry of the period of one month. On receipt of that notice, the defendant paid Rs. 50 on June 1, 1961 on account of the arrears of rent up to May 24, 1961. The plaintiff, however, instituted the present suit on July 29, 1981. The defendant thereafter made a payment of Rs. 20 on August 2, 1961 and in that manner he paid the rent up to July 24, 1961.
4. It has been argued by Mr. Narain, learned counsel for the appellants, that the tenancy stood forfeited when Sangatmal failed to pay the rent in terms of the rent-note (Ex. 1). According to the learned counsel, this default occurred on January 25, 1961 because of the fact that the defendant did not pay the rent which fell due on that date for the period from December 24, 1960 to January 24, 1961. On the basis of this submission, it has further been argued that as the plaintiff accepted the payment of Rs. 50 as rent on June 1, 1961, after the forfeiture of the tenancy, she waived the forfeiture in terms of Section 112 of the Transfer of Property Act, The learned counsel has placed reliance on Manicklal Dey Chaudhuri v. Kadambini Dassi, AIR 1926 Cal 763, Ram Dayal v. Jawala Prasad, AIR 1966 All 623 and Chote Mia v. Mst. Sundri, AIR 1945 Pat 260 (FB), in support of his argument.
5. The learned counsel for the appellants has thus tried to base his argument on the provisions of Sections 111(g) and 112 of the Transfer of Property Act, but, as I shall presently show, the argument is untenable,
6. Section 111 enumerates the various modes for determination of a lease of immovable property, and clause (g) of that section prescribes that such a lease may be determined by forfeiture. The relevant provision is to the following effect,--
'111 A lease of immoveable property determines,
(g) by forfeiture; that is to say,--(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or (2) ............... or (3) ..... and in any of these cases the lessor or his transferor gives notice in writing to the lessee of his intention to determine the lease.'
It would thus appear that while 'forfeiture' is one of the prescribed modes for the determination of a tenancy, it is necessary to constitute forfeiture, that (i) there should be a breach of an express condition of the lease which provides for the lessor's re-entry and (ii) the lessor should give a notice in writing to the lessee of his intention to determine the lease. There can thus be no forfeiture within the meaning of the aforesaid Clause (g) of S. 111 unless both these requirements are fulfilled. The reason is that forfeiture only makes a lease voidable at the option of the lessor, and it is for him to avail of that option or to waive it and allow the lease to subsist. The option is however unilateral, for it depends on the choice or decision of the lessor, and this is why it is necessary that there should be something to show that he had exercised his option to forfeit the tenancy before the tenancy can be said to be terminated. It is for this reason that it has been provided in Clause (g) that the lessor should give a notice in writing to the lessee of his intention to terminate the lease if he wants to put an end to it.
7. The question therefore is whether these requirements of Section 111 (g) have been fulfilled in the present case and, if so, on what date. As has been stated, the defendant's was a monthly tenancy. He paid the rent up to December 24, 1960, but did not pay it for the subsequent month on January 25, 1961. There was therefore a breach of the terms of the tenancy, contained in rent note Ex. 1, which expressly provided for the lessor's right of re-entry in such an eventuality. One requirement of Clause (g) was therefore fulfilled on January 25, 1961 and the lessor was entitled to re-enter by terminating the lease on account of the forfeiture. But 'forfeiture' within the meaning of Clause (g) could not be said to be complete on January 25, 1961 because the lessor had not given a notice in writing on that date to the lessee of his intention to determine the lease. Such a notice was given on May, 27, 1961 and it reached the defendant on May 29, 1961. There was therefore no completed forfeiture until after that notice.
8. It is true that the plaintiff accepted the payment of Rs. 50 on June 1, 1961 as arrears of rent upto May 24, 1961, but he could not be said to have waived the forfeiture for that reason. Section 112 of the Transfer of Property Act which deals with waiver of forfeiture, reads as follows :--
'112. A forfeiture under Section 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. Then follow two provisos to the section which need not be reproduced as it is admitted that they have no bearing on tha present controversy. So as the plaintiff accepted the payment of Rs. 50 on June 1, 1961 on account of the rent upto May 25, 1961, he could not be said to have accepted any rent which had become due since the forfeiture because the forfeiture under Clause (g) of Section 111 occurred on the giving of the notice on May 27, 1961. There is therefore no force in the argument that there was a waiver of the forfeiture on the part of the plaintiff. I am fortified in this view by the decision in Sahib Din v. Gauri Shankar, AIR 1940 Oudh 92.
9. The cases cited by Mr. Narain are easily distinguishable. AIR 1926 Cal 763, was a case which fell under Section 113 of the Transfer of Property Act. The plaintiff in that case was a tenant from the superior landlord of the premises and the defendant was his sub-tenant. It was pleaded in the plaint that a notice was given to the subtenant on June 11, 1924 to vacate the premises on July 17, 1924 and the suit was filed on August 25, 1924, when he failed to vacate the premises. As Buckland J., stated in the case, the only question for consideration was whether or not the notice to quit had been waived by the withdrawal of the rent from the Rent Controller after the suit had been filed.
The learned Judge addressed himself to the provisions of Section 113 of the Transfer of Property Act and held that as the plaintiff had withdrawn the rent after the suit had been filed, he had waived the notice, and in reaching this conclusion he took note of the fact that while the second proviso to Section 112 made it clear that where rent was accepted after the institution of a suit to eject the lessee on the ground of forfeiture such acceptance would not be a waiver of the notice, no such provision had been made in Section 113 which dealt with the waiver of the notice to quit. It would thus appear that the point for consideration in that case was quite different, and the decision has no real bearing on the question of the forfeiture of the tenancy in the present case. Besides, if I may say so with respect the reasoning in Mamicklal's case, AIR 1926 Cal 763, was considered and disapproved in Navnitlal Chunilal v. Baburao, AIR 1945 Bom 132, for very good and adequate reasons. AIR 1966 All 623, was decided on the basis of Mariicklal's case, AIR 1926 Cal 763, and it is not necessary to refer to it separately.
10. AIR 1945 Pat 260 is a Full Bench decision of their Lordships of the Patna High Court. But it related to the period before the coming into force of the Transfer of Property (Amendment) Act, 1929 (No. XX of 1929). It was by that amendment that the crucial wordings 'gives notice in writing to the lessee' of his intention to determine the lease, were added in Clause (g) for the purpose of removing all doubts regarding the meaning of the clause by making it quite clear that forfeiture of a lease would not be complete without such a notice. Chotu Mia's case, AIR 1945 Pat 260, cannot also be of any help to the appellant.
11. There is thus no force in the first argument of the learned counsel for the appellants.
12. It has next been argued by Mr. Narain that the plaintiff gave the notice (Ex. 2) on May 27, 1961 terminating tha lease after the expiry of one month, but he accepted the payment of Rs. 20 on August 2, 1961 as arrears of rent upto July 24, 1961 i. e., for the period after the expiry of the notice, and that the notice was therefore waived within the meaning of Section 113 of the Transfer of Property Act. He has invited attention to illustration (a) to that section in support of his argument. There is, however, no force in this argument also. It is admitted that notice Ex. 2 was a composite notice under Clauses (g) and (h) of Section 111 of the Transfer of Property Act. So even if there was any waiver under Section 113, that could not save the lease because it had been determined by forfeiture under clause (g) of Section 111.
Moreover it is admitted by Mr. Narain that the defendant did not take the plea that by accepting the payment of Rs. 20 the plaintiff had an intention to treat the lease as subsisting. In the absence of such a plea, it is not permissible for the learned counsel to argue that there was a waiver of the notice under Section 113 for if such a plea had been taken, it would have been decided on the basis of the evidence of the parties. As it is, it is admitted that there is no evidence on the record to justify such am argument.
13. Mr. Narain has lastly prayed that in view of the old tenancy, the defendant may be given four months' time to deliver vacant possession of the suit shop, Mr. Jain has agreed to this request.
14. While, therefore, the appeal fails,and is dismissed with costs, the appellantsare allowed a period of four months fromtoday to deliver vacant possession of the shop to the respondent.