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Mrs. Margaret Jean Massy Westmorland Wood Vs. Colonel Granville Alric Richard Spain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 697 of 1949
Judge
Reported inAIR1953Mad313; (1952)2MLJ758
ActsTransfer of Property Act, 1882 - Sections 111 and 114A; Code of Civil Procedure (CPC) , 1908 - Sections 35
AppellantMrs. Margaret Jean Massy Westmorland Wood
RespondentColonel Granville Alric Richard Spain
Appellant AdvocateK. Rajah Iyer and ;V. Seshadri, Advs.
Respondent AdvocateO.T.G. Nambiar, Adv., ;i/b., King and ;Partridge, Advs.
Cases ReferredJacob v. Down
Excerpt:
.....of ejectment.;held: (i) the suit must fail because, from the evidence in the case, none of the covenants of the lease had been broken;;(ii) the principles of sections 111 (g) and 114-a of the transfer of property act, though they do not expressly govern agricultural leases, have often been applied to them. under the said sections, two notices in writing one under section 111 (g), and another under section 114-a, are not necessary. section 114-a which was added by an amendment of 1929, must be deemed only to have specified the nature of the notice required under section 111 (g).;provat chandra syam v. bengal central bank, ltd. (1) i.l.r. [1938] 2 cal. 434 referred to.;the notice given by the plaintiff should be read with the prior notices given by her, and if hey substantially..........lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writ ing--(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 falls 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, underletting, 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."6. in the plaint the relevant allegations on this point are that by the plaintiff's advocate's letter dated 27th august 1948, ex. a. 2, the.....
Judgment:
1. This is an appeal by the plaintiff in O. Section No. 162 of 1948 on the file of the Subordinate Judge of the Nilgiris at Ootacamund against the dismissal of her suit. The plaintiff is the owner of lands and premises known as Niton Estate which contains a tea plantation and is situated in Kotagiri in the District of the Nilgiris. The plaintiff demised the said estate to the defendant under a lease deed dated 1st July 1945 (Ex. A. 1). The lease was for a period pf ten years. The annual rental was fixed at BE. 1800 to be paid in four instalments of Bs. 450 each in advance on or before the 1st July, 1st October, 1st January and 1st April each year. Besides the estate, a small house used for the occupation Of the writer was also let out to the defendant at a monthly rental of Rs. 5. The lease contained both covenants by the lessor and covenants by the lessee. It was provided 'inter alia' in the lease that in case of breach or nonperformance of any of the covenants and conditions contained in the lease on the part of the lessee, then it shall be lawful for the lessor to re-enter upon the demised premises and to re-possess the same without prejudice to any right of action or remedy of the lessor in respect of any such breach of the covenants and conditions.

The suit was instituted on the allegation that there had been many breaches of several of the covenants and conditions of the lease and that, therefore, the plaintiff as lessor had become entitled to lawfully re-enter upon the premises and to forfeit the defendant's rights under the lease. The plaintiff therefore prayed for a decree in ejectment. She also prayed for the recovery of a sum of Bs. 5776-2-6 as compensation for the damage caused to the estate by the said breaches by the defendant. She also claimed mesne profits from the date of suit till date of delivery of possession at the rate of Rs. 1000 per month and compensation for the deterioration of the premises from the date of suit till date of possession.

2. The defendant denied the breaches alleged by the plaintiff and disclaimed any liability. The defendant also pleaded that some of the covenants were not binding on him because they were inserted fraudulently and on misrepresentations made by the plaintiff's husband to the defendant. He also raised a further plea that the suit must fail because of the want of a proper and valid notice of ejectment.

3. The following issues were raised on the pleadings:

1. Has the defendant committed a breach of any of the covenants mentioned in the plaint, and if so, does it work out a forfeiture of the lease?

2. Was a proper and valid notice of ejectment given by plaintiff to defendant?

3. Has plaintiff a cause of action and is her suit for ejectment and possession maintainable? 4. Are covenants 5, 9 and 9 (a) void and invalid for the reasons alleged by the defendant?

4(a) If issue 4 is in the negative, has there been sufficient compliance by defendant with the said covenants?

4(b) Is it competent for the defendant' to say that plaintiff is not entitled to insist on his performance of the covenants to the extent mentioned in the lease deed itself?

5. Whether any and what damages have been incurred, and what sum is plaintiff entitled to on that account?

6. Is plaintiff entitled to claim in this suit future damages?

7. Is plaintiff entitled to any and what mesne profits?

8. To what relief if any is plaintiff entitled? (4) On issue 1 the learned Subordinate Judge found that it could not be said that defendant had not sufficiently complied with the covenants and therefore he was not liable to forfeit the lease. On issue 4 he held that covenants 5, 9 and 9(a) were not void and that they were not included on the faith of any misrepresentation made by the plaintiff's husband that these covenants had to be performed according to the ordinary meaning of the terms thereof. On issue 2 he held that there was no valid notice such as was required by Section 114A, T. P. Act. He decided issue 5 against the plaintiff. Issues 4(a) and 4(b) were not discussed separately by him as the subject matter of these issues was covered by his finding on the other main issues. In view of his findings on issue 1, Issue 6 was answered in the negative. As the plaintiff's suit in ejectment was dismissed no question arose about mesne profits and issue 7 was also found against the plaintiff. There was no finding on issue 3 as it was really unnecessary. On these findings the suit failed and it was dismissed. As regards costs the learned Judge thought that he should deviate from the general rule that costs should follow the event on account of the peculiar circumstances present in the case and so he awarded the defendant only three-fourths of his costs. Hence the appeal.

(After discussing the facts of the case His Lordship proceeded) : --

5. On these findings of ours, namely, that none of the covenants was broken, the suit must fail. It is, however, necessary to deal also with the plea raised on behalf of the defendant and which round favour with the Court below, namely that there was no proper and valid notice of ejectment' and therefore the suit must be dismissed. Mr. Rajah Aiyar attacked the finding of the trial Court on this point. The material provisions are Sections 111(g) and 114A, T. P. Act, which do not expressly govern agricultural leases, but principles underlying which have often applied to such leases.

These provisions run as follows: "Section 111. A lease of immoveable property determines (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."

114A: 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 writ ing--

(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 falls 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, underletting, 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."

6. In the plaint the relevant allegations on this point are that by the plaintiff's advocate's letter dated 27th August 1948, Ex. A. 2, the defendant was given notice to vacate and hand over the demised premises by the 15th September and that the plaintiff again informed the defendant through her Solicitors that he should vacate by the 30th September. It is clear, therefore, that the notice of 27th August, Ex. A. 2, is the notice relied upon by the plaintiff. But Mr. Rajah Aiyar, her learned counsel, also referred us to an earlier notice, Ex. A. 9S, dated 7th July 1948. In this the plaintiff complained to the defendant of cattle trespass and other breaches of the agreement and warned him that unless he took adequate steps to prevent them and in future abide strictly by the word and spirit of the agreement he will have to face the consequences of any action she might take to enforce her rights. There is reference to this letter of the 7th July in the Advocate's letter Ex. A. 2. The learned Judge held that the notice Of 27th August 1948, Ex. A. 2, did not fulfil the requirements of Section 114A. He thought it was not permissible to read EX. A. 96 in conjunction with Ex. A-2. The ground on which he came to this conclusion was that the plaintiff did not give the defendant an opportunity to remedy the breaches.

7. Though there is room for some doubt we are inclined to agree with the learned Judges of the Calcutta High Court that two notices in writing, namely, one under Section 111(g) and one under Section 114A are not necessary, vide --'Provat Chandra v. Bengal Central Bank Ltd.', ILR (1938) 2 Cal 434. Section 114A was added by an amendment of 1929 and must be deemed to have specified the nature of the notice required under Section 111(g).

8. We do not agree with the learned trial Judge that Ex. A. 2 is bad because the defendant was not required to remedy the breaches. Firstly the breaches complained of in Ex. A. 2 were not capable of remedy because the damages had been done already. No doubt at one stage the plaintiff was willing in spite of the breaches not to resort to the drastic step of forfeiture if at least in the future the defendant did not allow further breaches. But so far as the breaches which had occurred were concerned they were not capable of remedy. Secondly, even if it be considered that there was no opportunity given to the defendant to make good, we think that Ex. A. 2 should be read along with the prior notices in which the plaintiff did call upon the defendant to remedy the breaches and gave him reasonable time for that purpose. These considerations also meet the objection of Mr. Nambiar that Ex. A. 2 does not contain a list of all the breaches which were subsequently alleged in the plaint. It is obvious that the object of Section 114A is that the lessor should have clear information as regards the breaches I complained of and he should have an opportunity of remedying them if possible. Once the purpose of this provision is substantially complied with mere technical defects should not prevent the lessor from availing herself of the right of forfeiture if she was otherwise entitled to it.

In --'Penton v. Barnett', (1898) 1 QB 276, Collins L. J. dealing with similar notice required under the Conveyancing Act of 1881 observed as follows:

"I think, however, that we ought to construe the words 'particular breach' in the section according to the obvious intention of the Legislature, which was that the tenant should be informed of the particular condition of the premises which he was required to remedy. The expression 'breach' means the neglect to deal with the condition of the premises so pointed out, and not merely failure to comply with the covenants of the lease. The commonsense of the matter is that the tenant is to have full notice of what he Is required to do". ,

These observations were followed by Rowlatt J. in -- 'New River Co. v. Crumpton', (1917) 1 K. B. 762, In our opinion the commonsense view of the matter should be taken in construing Section 114A.

9. Mr. Nambiar cited to us certain decisions of the English Courts, but none of them has any application to the facts of this case. In -- 'Fletcher v. Nokes', (1897) 1 Ch. 271, the notice by the lessor was in the following terms:

"you have broken the covenants for repairing the inside and outside of the house". It was held that the notice was insufficient because it was far too general and that the notice to be served by a lessor on his lessee to entitle the lessor to enforce by action a right of remedy of the breach must be given in such detail as will enable the lessee to understand what is complained of so that he may have an opportunity of remedying the breach before action is brought. Surely the defendant cannot be heard to say that he did not understand what was being complained of. This decision was followed in -- 'In Re Serle; Gregory v. Serle', (1898) 1 Ch. 652. In that case the lessor merely informed the lessee that he had not kept the premises well and sufficiently repaired and the party and other walls thereof. In -- 'Jacob v. Down', (1900) 3 Ch. 156, there was a notice, but it referred to the breach of only one of the covenants. But there was a subsequent waiver as to this breach. There was a breach of another covenant on which the plaintiffs-lessors wanted to rely, but that was not mentioned in the notice. It was, therefore, held that the notice was insufficient. We have nothing like this in the case before us. If we had held that the defendant was guilty of breach of any of the covenants, then we would have held that there was proper notice under Section 111(g) & 114A, T.P. Act. But having regard to our finding that the defendant was not guilty of the breach of any of the covenants the suit must fail. The appeal is dismissed.

10. We do not, however, think that this is a case in which costs should follow the event. It is true that we have held that the defendant did not commit a breach of any of the covenants. But we cannot certainly commend the attitude of the defendant to the complaints made by the plaintiff. It may be that the plaintiff and her husband were far too much insisting on their rights and were also prone to a little exaggeration. But it must not be forgotten that the estate belonged to them and they were vitally interested in its proper maintenance and also that the plaintiff find her husband were actually on the estate. The defendant might have got a little irritated by the tone and frequency of the letters from the plaintiff and her husband, but it was the duty of the lessee to satisfy the lessor that he was taking every step to see that the covenants were kept properly Having regard to this conduct of the defendant we think that there should be no order as to costs in this appeal,

11. The memorandum of objections filed by the defendant relates to that portion of his costs of the trial which was disallowed by the learned Judge. We see no reason to interfere with the discretion exercised by the learned Judge. The memorandum is dismissed. No costs.


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