Sadasiva Aiyar, J.
1. The plaintiff is the appellant before us. The defendants Nos. 2 to 7, 9, 10, 13 to 21 and 23 to 38 have been made respondents in this second appeal. The suit was for ejecting the defendants from the plaint lands on the ground that the principal defendants have forfeited their rights as Mulgeni tenants according to the terms of the original lease deed of 1863.
2. The Lower Court refused to give a decree for possession in the plaintiff's favor on the ground that some overt act should have been done by the plaintiff (landlord) showing an intention to determine the tenancy required by Section III of the Transfer of Property Act and by the ruling reported in Venkatramana Bhatta v. Gundaraya : (1912)23MLJ715 , before the plaintiff acquired a legal right to eject the defendants. The case in Venkataramanu Bhatta v. Gundaraya : (1912)23MLJ715 , however proceeded on the ground that the Transfer of Property Act applied to the lease in question in that case. That this assumption was a mistake was pointed out in Padmanabhayya v. Ranga I.L.R. (1910) M. 161 and Rama-krishnav. Baburaya : (1912)23MLJ715 . The lease in question in the present case does not come within the provisions of the Transfer of Property Act both on the ground that it came into existence in 1863 long before the Transfer of Property Act was enacted and also on the ground that the chapter in which Section III of the Transfer of Property Act occurs does not apply to agricultural leases unless the Local Government especially notified that the provisions of that chapter should apply (Section 117). The case in Venkatramana Bhatta v. Gundarayu : (1912)23MLJ715 was evidently also not governed by the; Transfer of Property Act on account of both these reasons, though only one of the reasons was mentioned in Padmanabhaya v. Ranga I.L.R. (1910) M. 161 as having been overlooked by the learned judge who decided Venkatramana Bhatta v. Gundarayya : (1912)23MLJ715 . As pointed out in the judgment in Korapalu v. Narayana : (1913)25MLJ315 delivered to-day the provisions in Section III of the Transfer of Property Act (about a further act being necessary besides a breach of the covenant in the forfeiture clause) before a suit could be brought was probably a relic brought over into the Indian Statute from the antiquated technicality of the old English Common Law which required the formality of re-entry by the lessor of the leased lands before the lease could be determined for breach of covenants; but this formality is unnecessary in the case of leases not governed by the Transfer of Property Act. As said in Padmanabhayyct v. Ranga I.L.R. (1910) M. 161 the forfeiture is complete ' when the breach of the condition, or the denial of the title occurs but, as it is left to the lessor's option to take advantage of it or not, the election was not a condition precedent to the right of action, but the institution of the action was simply a mode of manifesting the election.' I would put it even more strongly by saying that, as the breach of the condition gives rise to a cause of action, there is strictly no question of election between two different rights but there is only an election whether he is to retain the right created or to give up the right. The retention requires no definite physical act while the waiver does. The word ' election ' is not the appropriate word to use as regards the bringing of the action based on the right created in the plaintiff by the forfeiture. The word ' election' should be used only where the lessor has elected by an act to waive the right created by the tenant's default. There are not two alternative elections, the one giving rise to a right and the other not giving rise to that right, but only one election dealing with the waiver of the right created. The Lower Courts were therefore wrong in holding that the cause of action had arisen to the plaintiff before the suit was brought by reason of his not having done some overt act declaring his intention to take advantage of the forfeiture. In this view it is unnecessary to notice the other contentions of Mr. B. Sitarama Row who appeared in the case for the appellant namely that the Lower Courts were wrong in treating certain acts relied upon by the plaintiff as not legally valid indications of his intention to determine the lease. The respondents, however, offered at the hearing of this second appeal to pay the rent in arrear (relying on the principle of the provision enunciated in Section 111 of the Transfer of Property Act) and to be relieved by the Court against the incurred forfeiture. We think we are not precluded from granting the respondents' prayer simply because in the Lower Courts-such offer was. not made during the hearings in that Court. Ramakrishna v. Baburaya : (1912)23MLJ715 . We therefore direct that on defendants' paying into Court the said arrears and full costs in all Courts within two months of this date the forfeiture be relieved against and the Lower Court's decree confirmed, but that in default the plaintiff do recover possession of the plaint properties from the defendants with all costs and subsequent mesne profits. The Lower Court's decree will be modified as above.
3. I agree.