1. The contract being one of 1849 is not affected by the Transfer of Property Act, Sections 111 and 114 (see provisions of Clause C, Section 2), and the case has to be dealt with upon the principles upon which this Court has hitherto acted in a long series of decisions of which Kottal Uppi v. Edavalath Thathan Nambudri 6 M.H.C.R. 258 is a clear exponent.
2. The proper course is to ascertain the intention of the parties and to give effect to that intention. Having regard to the entire contract, it appears to us that the clause of forfeiture for non-payment of rent was held over the defendant in terrorem and was not intended to be enforced.. It was thus what is styled a penal clause and will be relieved against. There is in the contract no clause of forfeiture upon alienation. It simply provides that the demises shall not alienate. The effect of this is limited to rendering the alienation inoperative against plaintiff.
3. We agree to the decree passed by the District Judge and shall dismiss the appeal with costs.