1. The plaintiff's suit is for possession of property demised under a Mulgeni lease and for arrears of rent on account of the forfeiture of the Mulgeni chit. Both the Lower Courts have dismissed the plaintiff's suit for possession of the plaint property. The plaintiff has preferred this second appeal. The clause against alienation in the Mulgeni chit, Ex. A, is as follows:
If we find that we do not require this mulgeni we should obtain from you only the consideration for the improvements that may justly be effected by us and surrender the said land to you and we are not entitled to alienate the said land to any one else by mortgage, arwar, sale, gift, mulgeni, owdigeni, kayamgeni or by injunction, attachment, auction in any decree that may be passed against us in any Court or in any other manner whatever.
2. The Mulgeni lease was in favour of three persons. One of the Mulgenidars alienated his share on 28th May, 1919 under Ex. I in favour of another Mulgenidar, that is his co-lessee. On 27th April, 1920, the Mulgenidar reconveyed the same interest to the former Mulgenidar under Ex. III. On 10th June, 1924, one of the Mulgenidars convened his right under Ex. II to his daughter. The daughter reconveyed the interest conveyed to her to her father on 19th July, 1921, by Ex. A.
3. Two questions arise for consideration with regard to these two alienations. First, whether the alienation by one lessee to another lessee of his interest in the lease is an alienation within the meaning of the clause, and second, whether the alienation in favour of the daughter though an heir under Muhammadan Law is an alienation within the meaning of the clause against alienation in Ex. A. The learned District Judge held that both the alienations did not come within the clause against alienations in Ex. A. As regards the question whether the alienation by a lessee of his right in favour of a joint lessee works a forfeiture or not is not covered by clear authority. In Farley v. Coppard (1872) 7 Com Ple 505. the facts were as follows:
A and B, partners in trade, were assignees of a lease which contained a covenant by the lessee, for himself and his assigns, that he would not, neither should his executors, administrators, etc., assign the demised premises without the consent in writing of the lessor. On the dissolution of the partnership, A assigned all his interest in the premises to B.
4. Willes, J., held that the, assignment worked forfeiture of the lease. He observed at page 507
that, if two assigned, one his undivided moiety to A and the other his undivided moiety to B, there would be a breach of the covenant; but that, if each assigned his undivided moiety to B, there would be no breach. That, as it seems to me, would be frittering away the covenant and making it worthless.
5. This case was considered in Corporation of Bristol v. Westcott (1879) 12 CHD 461. The facts of the case were as follows:
A lease was granted to two partners B and H as joint tenants. The lessees covenanted that they, their executors, administrators or assigns or any or either of them, would not, during the term, assign, underlet or part with the possession of the demised property to any person or persons without the written consent of the lessor; and there was a proviso for re-entry on the breach of any of the covenants. The partners dissolved partnership and agreed that the partnership property should be made over to B, and that the leasehold property should be assigned to him with the consent of the lessor, if such consent could be obtained, and recited, as the fact was, that A had given up sole possession of the leasehold to B. Consent was not obtained, and no assignment of the lease hold was executed, but B, from the time of the dissolution, remained in sole possession.
6. Bacon, Vice-Chancellor, observes:
The covenant must have a rational construction put upon it. This is a lease granted by the owner of a warehouse to two gentlemen who were partners. They agreed not to part with the possession to any person, and as each partner has full possession of the whole of the demised property, it cannot mean that, in case Mr. Houghton might be smitten down by apoplexy so as not to be able actually to enter the premises, the lease should be forfeited. It cannot mean that if his commercial engagements should require his attendance in any other country he should not go away and leave his partner in sole actual possession. No such doctrine is laid down in Farley v. Coppard (1872) 7 Com Ple505.
7. With regard to the clause 'part with the possession of the demised premises to any person or persons' Jessel, M.R., observes:
What do the words 'any person or persons' mean? Do they not mean 'any other person or persons'? Of course, if the demise had been to one person the words must have had that meaning, and the question is whether, where the demise is to several persons, the words have not the same meaning--whether, in fact, what was intended was not this, that the lessees were not to let into possession any one not previously approved of as tenant by;he lessor. Giving the words that meaning, you make the covenant sensible, and I think that is their fair meaning.
8. It was held by the Court of Appeal that there had been no breach of the covenant and that the proviso for re-entry had not come into operation. It is open to one of the joint lessees to allow the other joint lessees to enjoy the property leased. Where the execution of a deed conveyed the right of one to another is such an alienation contemplated by the clause in Ex. A? It would not be a fair construction to hold that the person who is already a tenant should obtain the consent of the landlord in order to acquire the interest of another tenant, if the clause like this ought to be strictly construed. In McEacharan v. Colton (1902) AC 104. the Privy Council held that a covenant by a lessee not to assign without the lessor's consent runs with the land and applies to a re-assignment to the original lessee. Lord Macnaghten in delivering the leading judgment of their Lordships observed:
Why should the circumstance that those persons were accepted as tenants some time ago, when they were, or were supposed to be, in a good financial position, make any difference? The covenant is quite plain. It is that the lessee, the person who for the time being stands in that relation to the lessor, shall not assign to any person without the lessor's consent. The attention of their Lordships has been called to an American decision for the purpose of shewing that the original lessee was not within the scope of such a covenant. With the utmost respect for the Court that pronounced the decision, their Lordships are unable to accept it as an authority for that proposition.
9. This case was not an appeal from India and the Indian High Courts are not bound by it. They have to pay the highest respect to the pronouncement of the Privy Council in any case but where the appeal is not from India they are at liberty to distinguish the case on the ground that the Indian conditions are different from those in the country from which the appeal arose. With due respect to the higher authority of Lord Macnaghten I prefer to follow the American view. The law of landlord and tenant in England is such that it is considered more favourable to the landlord than to the tenant. Should we introduce into the Indian system the rigour of the English law as regards the relation of landlord and tenant? My answer is 'No'. I hold that the alienation in favour of co-lessee by another lessee of his right in the lease is not an alienation which will work a forfeiture unless such is prohibited by the lease deed.
10. The next question is whether the conveyance by one of the lessors in favour of his daughter is an alienation within the meaning of the clause against alienation in Ex. A. This point is clearly covered by authority. In Angamuthu Chetti v. Varatharajulu Chetti : (1919)37MLJ384 . it was held that the alienation by the lessee of her right in favour of her son worked a forfeiture as she had undertaken not to alienate the property. The learned Judges followed the cases McEackaran v. Colton (1902) AC 104. and Varley v. Coppard (1872) 7 Com Ple 505 and Corporation of Bristol v. Westcott (1879) 12 Ch D.461. The same principle was laid down in S.A.No. 1598 of 1916 ahd S.A.No. 347 of 1917. Mr. Srinlvasagopalachari for respondent relies upon the decision in Ram anna Prabhit v. Srinivasa Gadiyara (1899) 9 M L J 11 as supporting his contention that the alienations in favour of the joint lessee and the daughter did not work a forfeiture. In that case the learned Judges relied upon the delay of the plaintiff in bringing the suit for possession and the fact that no injury had been done to the rights of the grantor inasmuch as the property came back to the grantees or one of them. No authority is cited for the position taken up by the learned Judges and I do not think that in the light of the authorities already noticed that decision can be said to be good law. 1 hold that the sale to the daughter is an alienation within the meaning of the clause in Ex. A, and has worked a forfeiture.
11. The next contention is that there was no waiver by the plaintiff of the forfeiture. The District Judge held that inasmuch as the plaintiff asked for rent in his plaint he should be deemed to have waived any cause of forfeiture by reason of non-payment of rent existing up to the end of the period for which he claimed rent. 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 up to 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 filed 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. It was distinctly held in Padbanabhayya v. Ranga I L R (1910) Mad 161 that a claim for rent in a suit for ejectment will not amount to waiver of the forfeiture. The election to forfeit is complete and irrevocable when the suit for ejectment is instituted. In Toleman v. Portbury (1874) L R 7 Q B 344 the Court of Appeal affirmed the decision in Toleman v. Portbury (1871) L R 6 Q B 245. In an ejectment by a landlord under a proviso for re-entry on breach of a covenant, the plaintiff under an order for particulars gave as breaches the permitting a. sale by auction on the premises, without the plaintiff's consent and the non-payment of rent accrued due since the sale. The defendant obtained the Judge's order staying the action as to the breach for the nonpayment of rent on payment of the rent to plaintiff or into Court if he refused it. The plaintiff refused the rent and it was paid into Court. It was held that there had been no waiver of the forfeiture. Kelly, Chief Baron, observed at page 352:
But it is said it is an injustice that the plaintiff should be able to maintain the forfeiture and still have the rent; but I cannot see this: the plaintiff is clearly entitled to the money, either as rent if there were no forfeiture, or as mesne profits if there was.
12. I hold that the claim for rent in. an action for ejectment by the landlord on the ground of forfeiture of the lease by the tenant is not a waiver of the forfeiture. In the result the appeal is allowed and the plaintiff will have a decree for possession of the plaint property and he will have his costs here and the Court below with future mesne profits.