1. The first question with which I propose to deal is whether, as contended by the appellant (2nd defendant) and by the 1st defendant in his Memorandum of Objections, the leases of 1894 evidenced by Exhibits A and B were determined in 1897. Exhibit XXIX of the 26th Sept. 1897 shows that the 1st defendant in whose favor Exhibits A and B were executed had fallen into arrears, and that the Tahsildar proposed to the Dewan that the leases should be cancelled for breach of the condition to pay the rent according to the kists. This was followed by Exhibit X, which is dated the 24th October 1897. This is from the Tahsildar to the 1st defendant, and informs the latter that, as he had fallen into arrears and was raising unnecessary disputes, a hukum had been issued on the 22nd October 1897-this was a hukum issued by the Dewan as appears from Exhibit XI-cancelling his Izara in accordance with the last term in Exhibits A and B, and directing the villages comprised in the leases to be taken under estate management, and that takids have been written to the people of the villages informing them of these matters. The 1st defendant was, therefore, given to understand that he should not thereafter collect money or do anything else in the village. The 1st defendant then appears to have asked the Dewan to reconsider the matter and the result appears in Exhibit XI, dated the 12th December 1897. This document, which is from the Tahsildar to the 1st defendant, refers to the cancellation of the Izara by the hukum of the 22nd October, and then goes on to say that as the 1st defendant had agreed to a certain arrangement the Dewan had issued a fresh hukum, on the 10th December 1897, stating that 'the Izara that had to continue according to the previous Izarakhat had again been sanctioned,' and that takids had been written to the villagers accordingly. The only other document which need be referred to is Exhibit H, a petition sent by the 1st defendant to the Tahsildar, in which the 1st defendant says 'the Dewau * * * restored our Izara villages to us whose Izara had been cancelled.' Coming to the oral evidence we find the 1st defendant stating that the leases were cancelled in fasli 1307, that the cancellation was proclaimed in the villages by beat of torn torn, ani that the villages were under estate management for two months after the cancellation. He is supported by Defence Witness No. 4 who is Monegar of one of the villages ; by Defence Witness No. 5, a chief ryot of the same village; by Defence Witness No. 6, Monegar of another of the villages who says that he received a takid to the effect that the Izara was cancelled and that he published by beat of tom-tom that kist should not be paid to the Izaradar ; by Defence Witness No. 7, chief ryot of one of the villages ; and by Defence Witness No. 8, Curnam of all the villages. The District Judge has dismissed all this oral evidence with the remark that it is interested. What the witnesses speak to is, however, highly probable, for it is only what would in ordinary course have happened. Exhibit X states that takids had been written to the people of the villages regarding the cancellation, and bottoming is a usual way in this country of making such a matter generally known. Further the evidence is entirely uncontradicted and this although the plaintiff's witnesses were examined later. An attempt was also made to show that some rent was collected on behalf of the Rajah during the period between Exhibits X and XI. The evidence regarding this is not very satisfactory. But the collection of rent on behalf of the Rajah during that period is not essential for the purpose of showing that the leases were determined, and it has not been suggested that anything was collected by the 1st defendant or by the 2nd defen dant's father. On the evidence I have no hesitation in holding that the leases were determined. Under Section 111 (g) of the Transfer of Property Act, a lease of immoveable property determines by forfeiture if there is a breach of a condition which entitles the lessor to re-enter and if the lessor does some act showing his intention to determine the lease, and both these conditions are amply fulfilled in the present case. It is pointed out in The Zemindar of Vijianagaram v. Behara Suryanarayana Patrvlu I.L.R. (1901) M. 587 that 'according to the common law of the land which specially prevails in Zemindaries and similar estates the delivery of possession, when the owner transfers the estate or a portion thereof, by sale, gift, lease or otherwise, is by the issue of the orders' or notices to the kurnams and other village officers whose duty it is to collect rents from the persons in occupation of the land, and also, though not invariably, by a general proclamation addressed to the ryots and other persons in occupation of the land, giving intimation of the transfer in question and requiring them to attorn and pay rent to the transferee.' The same would apply mutatis mutandis to the case of a lessor taking possession after cancellation of a lease like those in suit and there can therefore, in my opinion, be no doubt ss to the intention of the lessor in this case. The District Judge is of opinion that ' if there was cancellation and forfeiture there was also a waiver of forfeiture as evidenced by Exhibit XI and the subsequent enjoyment by the lessees and payment of rent.' Section 112 of the Transfer of Property Act deals with the question of waiver of forfeiture. It states that a forfeiture under Section 111(g) is waived by any act on the part of the lessor showing an intention to treat the lease as subsisting, provided that the lessor is aware that the forfeiture has been incurred. That is to say, if the lessor is aware that an event has occurred which entitles him to determine the lease, he may show by his acts that he does not intend to take advantage of it. But if he has already taken advantage of it, and determined the lease, Section 112 can, in my opinion, have no application. The leases under Exhibits A and B having been cancelled the suit as based on Exhibits A and B must fail. It is contended, however, for the plaintiffs, relying on Sheo Karan Singh v. Maharaja Parbhu Narain Singh I.L.R. (1909) A. 276, that he is entitled at any rate, to recover compensation for use and occupation as the defendants were again let into possession under the circumstances already set out, and that the rent fixed in the lease is a fair basis for the amount to be decreed. To this it is replied that no such relief was asked for in the plaint, and that therefore it cannot be granted. Rachhea Singh v. Upendra Chandra Singh I.L.R. (1899) C. 239 is relied upon. That case follows Surendra Narain Singh v. Bhai Lal Thakur I.L.R. (1895) C. 752 and Lukhee Kanto Dass Chowdhry v. Sumeerudi Lusker (1874) 13 B.L.R. 243 and in all these cases the facts were very different from the facts in the present case. It was observed in Surendra Narain Singh v. Bhai Lal Thakur I.L.R. (1895) C. 752 that the suit, if tried as one for use and occupation, would raise issues of an entirely different character, and would necessitate a new trial of the case upon fresh evidence. The same remark is applicable in the case of Lukhee Kanto Das Chowdry v. Sumeerudi Lusker (1874) 13 B.L.R. 343 and Rachhea Singh v. Upendra Chandra Singh I.L.R. (1899) C. 239. The facts in the present case raise no such obstacle. I would therefore follow Sheo Karan Singh v. Maharaja Parbhu Narain Singh I.L.R. (1909) A. 276 and (sic) that the plaintiff is entitled to compensation for use and occupation. The further question arises as to the period for which such compensation can be granted. The limitation is three years under Article 115 of Schedule II of the Limitation Act, and this being so the claim for use and occupation is barred save in respect of faslis 1310 and 1311 which are the last two faslis for which claim is laid. The amount to be paid for use and occupation for faslis 1310 and 1311 has now to be determined. Under Exhibits A and B a money rent is fixed. In addition to this a road cess is to be paid and a certain quantity of straw delivered. The road cess claimed is calculated at the usual rate on the lease amount, and this, in my opinion, is correct. There are no claims for remission in faslis 1310 acd 1311. The lease amount plus road cess and the value of the straw may therefore be taken as the reasonable amount payable for each fasli for use and occupation. I do not think the plaintiff should be allowed interest prior to suit. The total demand shown in the schedule of account annexed to the plaint for faslis 1310 and 1311 may therefore be accepted as the amount for which the defendants are liable for' those faslis. That schedule, however, shows that collections were made from the defendants for those faslies, and the defendants are therefore now liable for only the balance shown. These amount to Rs. 665-2-3, and for this amount I would give the plaintiff a decree with interest at 6 per cent per annum from date of suit till payment. For the decree amount the defendants are jointly and severally liable as it is abundantly proved that each of them was interested in the occupation of every portion of the suit property. There will be proportionate costs throughout.
Abdur Rahim J.
2. The suit in which this appeal arises was instituted on the 29th June 1903 by the Zemindar of Kalahasti for recovery of Rs. 8,059-8-7 as rent due under two Izara leases with respect to three villages, Adaram, Brahmanapalli and Kandalur, for faslis 1305 to 1311. The lease of Adaram and Brahmanapalli was granted on the 15th February 1894 and of the village of Kandalur on the 9th March 1894, both for a term of 9 years, to the 1st defendant under registered cowle deed ; the 1st defendant executed corresponding muchilikas in the Zemindar's favour. The 2nd defendant was impleaded on the 7th October 1903 as representative of his father who in February 1898, by an arrangement entered into between him and the 1st defendant and sanctioned by the plaintiff, was let into possession of the three villages. The suit was contested by the defendants on various grounds but the District Judge, having regard to his findings on the different issues raised at the trial, has given a decree to the plaintiff for a sum of Rs. 5,305-12-3 to be recovered from the 1st defendant and for Rs. 4,242-15-11 out of the above sum to be recovered from the 2nd defendant, thus holding both the defendants to be jointly and severally liable in respect of the latter sum. The decree also provides for the usual interest to be paid on the amount decreed and directs each party to pay costs to the other in proportion to the claim allowed or disallowed.
3. This appeal has been preferred by the 2nd defendant, and the 1st defendant has also filed a Memorandum of Objections. Some of the objections taken to the judgment of the District Judge are common to both the defendants.
4. One of the questions discussed before us is the effect of the arrangement by which the 2nd defendant's father entered into possession of the three villages. The fact that he had such possession since 7th February 1895 has not been contested before us by the learned vakil for the appellant. What is contended for is that there has been surrender of a moiety of the 1st defendant's interest in the leases by operation of law by reason of what happened between the parties, and thus the leases were determined so far at least as one moiety of the villages is concerned. What then was the nature of the transaction by which the 2nd defendant was let into possession The most reliable evidence on this point is furnished by Exhibits C, I and XXXV and the conduct of the parties. These documents show that the 2nd defendant's father had arranged with the 1st defendant that the former should have a half share in the Izara leases, and this arrangement was submitted to the Zemindar for sanction which apparently became necessary as the leases contained a clause prohibiting assignment. The arrangement was approved by the Zemindar apparently because the 1st defendant, as stated in Exhibit C, was unable to bear the whole burden of the rent, and takids were accordingly issued to the Zemindary officials informing them that the and defendant's father had been recognised as having a half share in the Izara leases granted to the 1st defendant. But there is nothing to show that it was ever intended to divide the tenancy into two halves, and I do not attach any weight to the evidence of the 1st defendant where he seeks to make out such a case. Neither the leases nor possession of the villages was delivered by the 1st defendant to the landlord, and no new lease was taken. The 1st defendant himself, and not the Zemindar let the 2nd defendant's father into possession, and the Zemindar never granted any lease to the 2nd defendant. The Zemindar was no party to any change of possession with respect to the demised premises and he throughout treated the 1st defendant as liable for the entire rent and the 1st defendant himself never disputed such liability. Demands for rent were issued to the 1st defendant alone and not to the 2nd defendant. It is true that some instalments of rent were remitted to the Zemindar's office by the 2nd defendant, but such payment, it is contended by the respondent, is attributable to the arrangement by which the 2nd defendant became an assignee of the leasehold interest and is in no way incompatible with the liability of the 1st defendant under the demise. On these facts, therefore, the proposition which must be established in order to make out a case of implied surrender or surrender by act and operation of law, in the language of English cases, is that, if a landlord accepts any payment of rent from a person who acquired an interest in the lease under an agreement with the tenant who let him into possession with the assent of the landlord, this by itself operates as surrender of the lease. I do not think that the cases cited by Mr. S. Srinivasa Iyengar bear out any such proposition. The doctrine of surrender by act and operation of law as established by Thomas v. Cook (1818) 2 B.& Ald. 119 : 20 R.R. 374 and recognised in other cases is, as stated in Davison v. Gent (1857) 26 L.J. Ex. 122, that where a lessee assents to a lease being granted to another and gives up his own possession to the new lessee, that is a surrender of his term by act and operation of law. In Hamerton v. Stead (1824) 3 B.& C. 478, the landlord, defendant in the action which was one for trespass, had demised the premises in question to the plaintiff as tenant from year to year and thereafter agreed to let the same premises to the plaintiff and one Moore jointly, and the latter entered and occupied jointly with the plaintiff under the agreement ; held that the suit could not be maintained as that was a new contract determining the sole tenancy of the plaintiff and creating a new joint tenancy by the plaintiff and Moore. In Laurance v. Faux (1861) 2 F.& F 35, Laurance, having entered into agreement with the defendant Robert Faux to let certain premises to him, afterwards agreed, and with the consent of Robert Faux, to let a portion of the same premises to Edward Faux and accepted rent from the latter ; Blackburn J. held that in these circumstances the receipts for rents received from Edward Faux were strong evidence of a change of tenancy with the consent of the landlord amounting to a surrender by operation of law. The law on this subject was again recently considered by Chitty J. in Wallis v. Hands (1893) 2 Ch. 75. There a new lease in possession was granted to a third person with the oral assent merely of a person in possession under a prior subsisting lease, but the old tenant did not give up possession to the new tenant at the time of the grant of the new lease ; it was held that there was no surrender by operation of law so as to take the case out of the Statute of Frauds. It will be seen then that in all the cases relied on by the learned vakil for the appellant there was either a lease granted by the landlord to the new tenant or a valid agreement to grant such lease, so that there was an acceptance on the part of the landlord of a change in the tenancy. But in the present case it was not within the contemplation of the parties that the 2nd defendant should become a tenant of the plaintiff in place of the 1st defendant. Further, so far as the 2nd defendant is concerned it is difficult to appreciate his position with reference to the question of implied surrender. If there was an implied surrender at all, it must be by the substitution of a new tenancy for the old. But the 2nd defendant's case is that no relation of tenant and landlord has been created between him and the plaintiff. It may also be pointed out that neither the issues nor the Memorandum of Appeal or Objections raised any question of implied surrender and apparently no such plea was urged before the District Judge. In my opinion, however, upon the facts which have been proved, there was no surrender either express or implied. Even if there was a surrender, the defendants undoubtedly remained in possession afterwards and Section 116 would, in my opinion, be a sufficient answer to an attempt on their part to escape liability for rent under the covenants in the leases. In the circumstances of this case I attach no importance to the beating of tom-tom in the village, and I do not think that by what happened on the occasion there was an eviction of the defendants. In this view of the transaction it is not necessary to consider the question raised by the respondent whether there can be surrender, by operation of law, of an undivided share of a leasehold term.
5. The next point for consideration is whether the 2nd defendant is liable as assignee of a moiety of the 1st defendant's leasehold interest in the absence of a registered deed of assignment. Section 9 of the Transfer of Property Act clearly lays down that a transfer of property may be made without writing in every case in which a writing is not expressly required by the law. The onus is, therefore, upon the appellant to make out in the first place that the transaction by which the 2nd defendant acquired an interest in the leases is required by the law to be in writing, The view which I am inclined to take of the arrangement between the two defendants is, as disclosed in the evidence, that they intended to enter into a contract of partnership with respect to the Izara leases, each party taking half of the profits and sharing half of the burden. We find that the 1st defendant and the 2nd defendant's father are actually spoken of as partners; for instance, in Exhibit D, which is a power of attorney executed by the 2nd defendant's father, it is recited ' as regards the rental of three villages Brahmanapalli, Adaram and Kondain jointly had with our partner Chintalapalli Venkata Narasiah (i.e., the 1st defendant) &c.;' Such a contract is not one of those transactions which must be embodied in a registered instrument, and as the 2nd defendant entered into possession and enjoyment of the villages as partner of the 1st defendant he would certainly be liable for rent to the plaintiff.
6. Then it is contended that Exhibits C and I not being registered should not have been accepted in evidence. But the agreement between the 1st and the 2nd defendants was independent of these documents. They only recite the arrangement which had already been arrived at.
7. It is also argued on behalf of the appellant that the endorsement on Exhibit C and Exhibit I by which the landlord waived his objection to the assignment is required, by Section 17 of the Registration Act, to be registered. But I fail to see how such an endorsement can be said to create, declare, assign, limit or extinguish any interest in, or right to, immovable property. The prohibition against transfer of the Izara was intended for the benefit of the lessor, and all that the latter purported to do was to give his assent to the transfer when made by the 1st defendant.
8. Such an act can hardly be said to be creation of an interest in immoveable property within the meaning of the section. The cases which lay down that a transaction purporting to be a sale of immoveable property and evidenced by a registered deed as required by the law cannot be proved to have been intended to operate only as a mortgage by adducing evidence contained in unregistered writings (see Achutaramaraju v. Subbaraju I.L.R. (1901) M. 7 and Mutha Venkatachalapiati v. Pyanda Venkatachalafiati I.L.R. (1903) M. 348)or that an unregistered document cannot be admitted in evidence to affect mortgaged property by fettering the equity of redemption, have no bearing, in my opinion, on the present question.
9. The next question is whether there was a determination of the leases by forfeiture in October 1897. What happened then was : the rent fell into arrears and, according to the power reserved in the leases, the lessor sent a notice to the 1st defendant (Exhibit X) stating that he cancelled the Izara and that the villages would henceforth be managed under Amani. And it also appears from the evidence that this fact was proclaimed in the villages by beat of tom-tom and takids were issued to the Zemindary officials informing them of the cancellation of the leases.
10. An attempt was further made to prove that a sum of Rs. 30 was collected from the ryots by the Zemindar himself after the issue of Exhibit X, but I do not think that this has been satisfactorily proved. The man who actually collected the amount has not been examined, and it has not been shewn that the sum was remitted to the Zemindar's office. On the other hand although the Zemindar determined to put an end to the lease the 1st defendant never acquiesced in the act of the Zemindar, but prayed for ' continuance of the Izara according to mamool.' And the Zemindar acceded to this prayer and issued afresh order on the 12th December 1897 to the effect that 'the Izara would continue.' The lessees continued in possesion of the villages and, as thea istrict Judge holds, there is no reliable evidence to show that between the 24th October and the 12th December, an interval of a month and a half, the defendants' connection with the villages ceased for any practical purpose or that the plaintiff assumed direct management of them. Upon these facts I have no hesitation in accepting his conclusion that the lease was never determined. There was no cessation of the relation of landlord and tenant between the parties though there might have been a temporary suspension of such relations. The leases were never delivered to the landlord and there was no actual change of possession. I am further unable to accede to the view that the landlord having once declared his intention to exercise the right of forfeiture and communicated that intention to the lessee and to his own servants and the ryots, he could not, if he so chose, waive the forfeiture, in response to the protests or representations of the lessee. I do not find anything in Sections 111 and 112 of the Transfer of Property Act which oblige me to adopt such a narrow construction of the law. It is, no doubt, not a necessary condition of the validity of an act of forfeiture that it should have the consent of the tenant, but at the same time, since forfeiture necessarily alters the position of the tenant, the question whether the tenant has or has not acquiesced in it must affect the landlord's right to waive forfeiture. If the landlord has elected to take advantage of the condition relating to forfeiture and communicated his intention to the tenant and the tenant acquiesces in it, it stands to reason that the landlord cannot afterwards treat the tenancy as still subsisting. To this effect is the decision in the case of Sergeant v. Mash Field & Co. (1903) 2 K.B. 304 and in other similar cases cited by the appellant's pleader. But on the other hand, if the tenant never acquiesced in the landlord's act, and the landlord afterwards changes his mind at the request of the tenant himself, I do not see why he should not be able to waive the forfeiture so long as the question is one exclusively between him and the tenant. I would hold, therefore, that there was no determination of the leases by forfeiture.
11. I now come to the question of limitation. It is urged that the proper Article applicable to this suit is Article no which provides 3 years for a suit for arrears of rent, and not Article 116 which allows 6 years for a suit for compensation for the breach of a contract in writing registered. Article no, it is argued, is specifically applicable to a suit like this, and therefore recourse cannot be had to a general Article like Article 116. A recent decision of the Allahabad High Court Ram Narain v. Kamta Singh I.L.R. (1903) A 138 no doubt supports this view. But this Court has held a different view in Vythtlinga Pillai v. Thelchanamurthi Pillai I.L.R. (1888) M. 77 and this is the view also of the Calcutta High Court see Umesh Chunder Mundul v. Adarmoni Das I.L.R. (1887) C. 221, and I am not persuaded that it is wrong. Article 110 is applicable to suits for rent generally, but Article 116 specially provides for a suit which is based on a contract in writing registered, including a lease.
12. On behalf of the 2nd defendant it is further contended that, he being liable by reason of privity of estate and there being no privity of contract between him and the plaintiff, Article 116 has no application at least in his case. No doubt the liability of an assignee of a term for rent arises out of privity of estate existing between him and the lessee, so that his liability ceases on the termination of such privity, as by relinquishment of possession or transfer. But the assignee's liability is based all the same on the covenant for rent which in law runs with the land. There is, therefore/ no ground for saying that the period of limitation would be different, so far as the claim against the 2nd defendant is concerned.
13. It has been also argued that each of the defendants would be liable for half the rent and not jointly and severally liable for the entire rent. But if the 2nd defendant entered into possession under a contract of partnership, whatever the nature of the arrangement between him and his partner as regards the share of each in the profits and losses, it cannot bind the landlord and would not affect his (the latter's) rights upon the covenants.
14. As regards the contention in connection with the liability for road cess and the claim for straw, I agree with what the learned District Judge saves on those points, and as to the claim for remission for shavi, though I think, as contended for by the appellant, each year must be considered on its merits, I am unable to find on the evidence that the claim has been substantiated. The evidence shows that in every year with respect to which remission is claimed, there was at least one good crop and there was sufficient supply of water in the tank for a or 3 months.
15. In the result I would confirm the judgment of the District Judge and dismiss both the appeal and the 1st defendant's Memorandum of Objections with costs.
16. As my learned brother would confirm the decree of the Court below, this appeal is dismissed with costs of the 1st respondent. The Memorandum of Objections is dismissed with costs of the 1st respondent.