Madhavan Nair, J.
1. The plaintiff is the appellant. This second appeal arises out of a suit by the plaintiff for the recovery of enhanced rent in the following circumstances.
2. In 1905 the plaintiff's father granted a permanent mulgeni lease under Ex. A, of certain lands to the defendants. The lease stipulated that the defendants were not to alienate their mulgeni interest in the lands. In case of alienation the rent payable was enhanced from Rs. 137-12-0 to Rs. 250. The restraint against alienation and the increase in rent in case of alienation are mentioned in the following provision of the lease deed; ' In case we do not require the said plot, we shall hand it over to you only; but we shall have no right to alienate this mulgeni right to any one else by way of mortgage, arwar (usufructuary mortgage), sale, etc. If in contravention thereof we alienate it to others, we shall pay geni at Rs. 250 per year from that time'. On 28th January, 1910, under Ex. B, the defendants sold their mulgeni right in the lands to their divided brother Ramachandra Bhatta and made over possession of the holding to him. Within a short time, on 8th March 1910, Ramachandra Bhatta reconveyed the mulgeni interest to the defendants under Ex. XV. It is admitted that though the lands were reconveyed they are still in the exclusive possession and enjoyment of Ramachandra Bhatta. Both the plaintiff and the plaintiff's father received, after alienation, the rent from the lands at the original rate. The plaintiff's case is that as soon as he came to know of the alienation he demanded rent at the enhanced rate and registered notices were exchanged between the parties. The District Munsif says that it is not proved on the evidence that till 1922 the plaintiff was aware of the alienation as per Ex. B. On this point the learned District Judge observes:
I do not for a moment believe that plaintiff was ever ignorant of the temporary, alienation in 1910 or of the fact that Ramachandra Bhatta was actually cultivating the lands with the permission of the defendants.
3. The District Munsif also says that it is very likely that the defendants took Ex. XV, because the plaintiff's father threatened to enforce the clause for enhanced rent in the mulgeni. This is very probable; and this is also the opinion of the District Munsif. These latter facts were relied on in the first Court, only to prove that the plaintiff is estopped from enforcing the stipulation contained in Ex. A. This plea was specifically overruled by the District Munsif. The District Judge does not definitely say that the plaintiff is estopped from claiming the enhanced rent, but he says, referring to the conduct of the plaintiff, ' such conduct is clearly inequitable and I decline to permit plaintiff to go back on a course of action and a policy which both his father and he himself have adopted since 1910'. It is clear that no case of estoppel has been made out and in this Court the respondent's case was rightly not sought to be supported on the plea of estoppel. I may state here that the appellant has argued the case on the assumption that the plaintiff knew of the alienation when he received for some time the rent from the defendants. The question is whether in these circumstances the plaintiff is entitled to claim the enhanced rent asked for in the plaint.
4. The above question was answered in the affirmative by the learned District Munsif and in the negative by the learned District Judge, and in the result the plaintiff's suit was dismissed with costs. In the last paragraph of his judgment where he gives the reason for his decision, the learned District Judge, after stating that the conduct of the plaintiff is inequitable and that he cannot believe that the plaintiff was ignorant of the temporary alienation, says:
The mulgeni interest was only alienated for little more than a month, and this temporary alienation occurred 16 years before suit, and was clearly condoned at the time. In the result, plaintiff's suit is dismissed with costs.
5. It is not clear whether the learned Judge passed his judgment on estoppel or waiver of his rights by the plaintiff; but it is clear that he thought that the case was an extremely inequitable one.
6. The question I have to decide is one of law. No decision of any Indian Court directly bearing on the point has been brought to my notice; but there are decisions in England which support the appellant's case. Instances of cases where an increased rent is reserved in case the lessee commits a breach of a covenant, are collected in Foa on Landlord and Tenant, 6th Edn., page 179 of his book. The learned author says:
In certain leases (especially agricultural leases) where the lessee is, prima facie, to refrain from certain acts,-- e.g., ploughing up pasture, or converting land into tillage, removing produce from the premises, cultivating the lands on any other than a particular system, sowing more than a certain quantity of them with a given seed, or taking from them more than a certain number of successive crops of a specified kind, mowing for hay without manuring, parting with the possession of land included in the demise, etc., (The Italics are mine) a stipulation is often met with for the payment of an additional rent proportioned in amount to the extent to which the obligation is disregarded.
7. The levy of an increased rent on parting with the possession of land which is the present case - is illustrated by the case of Greenslade v. Tapscott (1834) 1 C.M.R. 55 : 149 E.R. 991. In Halsbury's Laws of England, Vol. XVIII, para. 944, it is stated that:
An increased rent may be reserved in case the lessee commits a breach of the covenants of his lease. Such a rent is commonly known as a penal rent; in general, however, it is not in the nature of a penalty, but is a liquidated sum or succession of sums payable by way of satisfaction.
8. And in the last sentence of the paragraph it is stated, ' a receipt of the original rent is not a waiver of the landlord's claim to the additional rent.'
9. In Denton v. Richmond (1833) 1 C.M. 734 : 149 E.R. 595 a higher rent was made payable on breach of a condition mentioned in the lease deed. On the breach of the condition when rent was claimed at the higher rate, it was first pleaded that after the breach of the convenant the plaintiff with full knowledge of it received the lower rate without demanding the additional rent; and secondly that after the committing of the breach the plaintiff with full knowledge, etc., gave up and dispensed with his claim to receive the additional rent. Both pleas were in effect similar, as pointed out by Lord Lyndhurst, C. B., and amounted to pleas of waiver. It was held that there was no case of waiver and the plaintiff was entitled to receive the additional rent claimed. In my opinion this case meets all the objections raised by the defendant. The proposition illustrated by this case is thus stated in Foa on Landlord and Tenant, page 181:
Nor does the lessor lose his right to recover it by accepting the original rent only, even if such acceptance be with the knowledge that his right to the increased rent accrued.
10. It is argued that the increased rent which the plaintiff is thus entitled to get is in the nature of a penalty and the Court can relieve against it. As pointed out in the extract quoted from Halsbury, the increased rent is not a penalty but is in the nature of liquidated damages. Foa in his book makes a statement to the same effect. He says, at page 180:
In accordance with the principles already stated (referring to an earlier ortion of his book where the distinction between penalty and liquidated damages is pointed out) additional rent or single sums, payable under the above circumstances, is payable as liquidated or ascertained damages in full; unless of course, also in accordance with those principles, such additional rent is made payable upon the breach of any one of several stipulations of an unequal degree of importance.
11. which is not the case here. Even if we assume that the provision contained in the deed is in the nature of a penalty, I do not think that Courts can give relief against it. It was held in Krishna Shetli v. Gilbert Pinto I.L.R.(1919)Mad. 654 : 36 M.L.J. 367 with reference to forfeiture of a lease and re-entry on breach of a convenant, that Courts have no power to relieve against the forfeiture and that the lessor was entitled to possession on breach of the covenant.
12. For the period for which lower rent has been received, no doubt the plaintiff cannot claim the higher rent provided in the deed in case of breach of a covenant; but for future periods he is certainly entitled to claim the enhanced rent for the reasons given above. I would therefore set aside the decision of the lower Court and restore that of the District Munsif with costs here and in the Court below.