Alfred Henry Lionel Leach, C.J.
1. The property in suit is of very small value, but the action has given rise to much argument in three Courts below and in this Court. On the 4th October, 1916, the appellant's predecessor in title granted a permanent (mulgeni) lease of a plot of agricultural land measuring a quarter 'of an acre to the first defendant at a rent of 8 annas per year. The lease contained a covenant by the lessee that the land should not be ' alienated in any manner to any one else ' and should not be given as security for any pecuniary obligation of the lessee. On the 8th January, 1935, notwithstanding this covenant, the lessee granted a usufructuary mortgage of the property to secure a loan of Rs. 1,000 which was to be repaid by the 30th April, 1940. By this time the lessee had built a house on the land. On the 8th September, 1940, (he lessor gave to the lessee notice of forfeiture of the lease for breach of the covenant. The lessee refused to vacate the property and this resulted in the lessor filing a suit for ejectment in the Court of the District Munsiff of Karkal. The District Munsiff decreed the suit, but on appeal the Subordinate Judge reversed the decree of the District Munsiff and dismissed the suit. The Subordinate Judge held that there had been no valid forfeiture as the plaintiff had not given a notice in the terms required by Section 114-A of the Transfer of Property Act. He found as a fact that although the tenant had purported to create a usufructuary mortgage, he had not given possession of the property to the mortgagee. The plaintiff then appealed to this Court. His appeal was heard by Patanjali Sastri, J., who held that the creation of the mortgage entitled the lessor to forfeit the lease, but that the suit could not be maintained as the notice did not give the tenant an opportunity of remedying the breach, which means an opportunity of redeeming the mortgage.
2. Section 114-A was inserted in the Transfer of Property Act by the amending Act of 1929. The section reads as follows:
Where a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-
(a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.
Although the usufructuary mortgage did not in law amount to an assignment of the property and there had been no parting with possession, the forfeiture clause in the lease came into operation by reason of the fact that the lessee had charged the property to secure a loan.
3. Section 117 of the Transfer of Property Act takes agricultural leases out of the purview of the provisions of Chapter V of the Act; but in Krishna Shetti v. Gilbert into : (1919)36MLJ367 a Full Bench of this Court held that notwithstanding Section 117 the Courts of this country could grant relief against forfeiture on the principles applied by the Court of Chancery in England and this decision has been followed in this Province ever since. Therefore it is well settled that notwithstanding Section 117 the Court can grant relief against forfeiture in spite of Section 117. The learned Judge pointed out that Section 114-A is modelled on Section 14, Sub-sections (1) and (6) of the English Conveyancing and Law of Property Act, 1881, and that it is open to the Court to give relief against forfeiture of an agricultural lease when the notice of forfeiture is not in accordance with the section, not because the section operates but because it embodies an equitable principle which the Court can apply. We agree with this.
4. The notice which the plaintiff served upon the first defendant did not give him an opportunity of remedying the breach. The payment of the mortgage would mean a complete remedying of the breach. As a matter of fact, the first defendant avers that he has redeemed the mortgage, but there has been no finding on this question. We hold that the lessor is not entitled to maintain the suit for ejectment in the circumstances and consequently we concur in the judgment under appeal. If the mortgage is still subsisting, it will be open to the lessor to serve a fresh notice and institute a fresh suit if the terms for the notice are not complied with.
5. the appeal is dismissed with costs.