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Kizhakkekath Kemalooti and anr. Vs. Pulikkalakath Muhamed and Three ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Judge
Reported in(1918)ILR41Mad629
AppellantKizhakkekath Kemalooti and anr.
RespondentPulikkalakath Muhamed and Three ors.
Cases Referred(vide Doe v. Williams
Excerpt:
.....the effect of putting an end to the tenancy and that the suit was premature. i fail to see why the denial of title during the continuance of the period of tenancy should not work a forfeiture of the right. many authorities were not cited on the question at the bar, but on considering the matter fully i am not satisfied that if there is a denial of title there is power in the courts to relieve against forfeiture. 4. but i am not satisfied that the courts below are right in holding that there is a disclaimer of title. the english authorities, to which i shall presently refer, seem to bear out the view that a casual reference like the present one will not have the effect of renunciation of title. the principle is well settled that a tenant cannot acquire title by prescription against his..........by the subordinate judge have not much bearing upon this second question. i fail to see why the denial of title during the continuance of the period of tenancy should not work a forfeiture of the right. the transfer of property act, no doubt, has no application to the terms of this tenancy which is an agricultural one. but, the principle of section 111, clause (g), is applicable to this case. under the second sub-section of that clause it is enacted that the lessee renounces his character as such by setting up the title of a third person or by claiming title in himself, mr. justice sadasiva ayyar in abbakka v. seshamma (1914) m.w.n. 915 points out that under the common law of india a favourable construction should be placed upon the conduct of the tenant before he is adjudged to have.....
Judgment:

Seshagiri Ayyar, J.

1. This is a suit for ejectment by a landlord on the ground that the teNant has forfeited his right by his denying the title of the plaintiff. The District Munsif held that the act complained of did amount to a disclaimer of the landlord's title and decreed possession. On appeal the Subordinate Judge agreed with the District Munsif that there was a disclaimer but held that as the lease was granted for the life-time of the lessee, the disclaimer bad not the effect of putting an end to the tenancy and that the suit was premature. He dismissed the suit upon that ground.

2. There are two questions for consideration in this second appeal. The first is, was there a disclaimer of title, secondly whether the tenant has not forfeited the tenancy as the lease was for the life-time of the tenant although he did deny the landlord's title. I shall dispose of the second point first.

3. The cases quoted by the Subordinate Judge have not much bearing upon this second question. I fail to see why the denial of title during the continuance of the period of tenancy should not work a forfeiture of the right. The Transfer of Property Act, no doubt, has no application to the terms of this tenancy which is an agricultural one. But, the principle of Section 111, Clause (g), is applicable to this case. Under the second sub-section of that clause it is enacted that the lessee renounces his character as such by setting up the title of a third person or by claiming title in himself, Mr. Justice Sadasiva Ayyar in Abbakka v. Seshamma (1914) M.W.N. 915 points out that under the common Law of India a favourable construction should be placed upon the conduct of the tenant before he is adjudged to have forfeited his tenancy. I am prepared to accept this view in dealing with agricultural leases, but I can see no justification for the view taken by the Subordinate Judge that leases for a term will enure for the full length of it notwithstanding the denial of title by the tenant. Therefore if I came to the conclusion that there has been a disclaimer of title by the tenant I would have taken a different view of the case. I suggested, in the course of the arguments, that even if there was a disclaimer, Courts may have power to relieve tenants from forfeiture. Many authorities were not cited on the question at the bar, but on considering the matter fully I am not satisfied that if there is a denial of title there is power in the Courts to relieve against forfeiture. Under the English Law there are, at present, two classes of cases which can be relieved against: (a) for non-payment of rent; the common Law Procedure Acts of 1852 and 1860 and Section 4 of the Conveyancing Act of 1892 provide for relief; (b) in cases of breaches of other conditions and covenants; the Conveyancing Acts of 1891 and 1892 declare the principles on which relief can be granted. No doubt it is pointed out in Barrow v. Isaacs and Son (1891) l.Q.B. 417 that these various enactments have not exhausted the equitable jurisdiction of the High Court to relieve a defaulting tenant from forfeiture. Lord Esher in that case says that in cases which are not provided for by the legislature, equity will come to the aid of the party only where there has been fraud, accident or mistake. Then he proceeds to say that even if any of these elements are found, there will be no relief if the tenant had acted with great carelessness or negligently. The learned Master of the Bolls does not refer to the case of denial of title as one of the relievable cases, and I have not been able to find any authority in which relief was granted by Courts where the tenant had denied the landlord's title. Mr. Justice Sadasiva Ayyar, in the case to which I already referred, seems inclined to the view that all cases of forfeiture can be relieved against. Even accepting this broad proposition as being especially applicable to Indian conditions, I would require that where there has been a denial of title the tenant must prove in the language of Lord Esher that that denial was occasioned by the fraud, mistake or accident of the landlord and that the tenant himself was neither careless nor negligent. In the present case no attempt has been nude to prove that the tenant has been misled. Therefore if I am driven to the conclusion that there has been a disclaimer of title, I would have decreed possession.

4. But I am not satisfied that the Courts below are right in holding that there is a disclaimer of title. The disclaimer is said to be contained in Exhibit J. That is an assignment of jemn right by the defendant to a third party in respect of properties which undoubtedly belong in jemn to the defendant. In the course of describing the properties assigned and in excluding certain properties from the deed of assignment the defendant says that the excluded property belongs to him in jemn. It is true there is, in this case, an assertion of jemn right in respect of property now sought to be recovered, but the assertion is not addressed to the landlord nor is that assertion followed up by transferring the particular property to a third party. There is no surrender of possession to a person claiming adversely to the jemn. It is only an incidental statement in a document which was intended to convey some other property. The question now is whether this incidental reference Can amount to a denial of title. In the Transfer of Property Act the language is

in case the lessee renounces his character as such by setting up a title in a third person or by claiming title' in himself.

5. In this case he did not set up the title of a third person nor did he renounce his character as tenant. In ordinary parlance the expression 'renounce' would connote that some act is done to the knowledge of the landlord which was calculated to convey to him the impression that the tenant repudiated his title. The English authorities, to which I shall presently refer, seem to bear out the view that a casual reference like the present one will not have the effect of renunciation of title. As was pointed out in Prag Narain v. Kadir Bakhsh I.L.R. (1913) All. 145 the denial must be unequivocal and some act tending to the giving up of the relationship of tenant must have been committed. The authorities in England are to the same effect. In Doe dem Graves v. Wells (1839) 10 Ad. & E. 427, Lord Denman, C.J., seems to suggest that there must be a betrayal of the landlord's interest and that the landlord should be placed in a worse condition before he can insist upon putting an end to the tenant's lease. In Doe dem Di Man v. Parker (1820) Gow 180 it was held that a payment to a third person was not sufficient to put an end to the tenant's lease. Doe D. Gray v. stanion (1836) 1 M. & W. 695, Doe D. Pittman v. Sutton (1841) 9 Car. & P 706 and Doe Dem Williams and Jeffrey v. Cooper (1840) 1 Man. & Gr 1135 may be quoted in support of the same view. In Mr. William's book on Ejectment (second edition), page 56, the law is thus stated:

In order to constitute a disclaimer something must be done by the tenant which amounts to a direct repudiation of the relationship of landlord and tenant, and is necessarily inconsistent with that relationship.

6. In Woodfall on Landlord and Tenant, page 431, the statement is:

In order to make either a verbal or written disclaimer sufficient it must amount to a direct repudiation of the relationship of landlord and tenant, or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, which by necessary implication is a repudiation of it.

7. The same proposition is stated in Cole on Ejectment also, page 41. In my opinion the collateral reference in a document intended to convey some other property is not enough to constitute a disclaimer of. title. The principle is well settled that a tenant cannot acquire title by prescription against his landlord so long as he does not to the knowledge of the landlord repudiate the tenancy under which he holds possession. Consequently the statement in a document executed to a third party cannot ordinarily have the effect of starting adverse possession in favour of the tenant. The landlord, therefore, is not put in a worse position than he was when he let the property to the defendant. I therefore hold that there has been no denial of title. I would dismiss the second appeal. But, having regard to the conduct of the defendant, I do not think he is entitled to any costs in this Court.

Napier, J.

8. Two questions have been raised in this second appeal, the first, whether the alleged denial of title by the defendant operates to terminate his interest in the land and the second, whether, if there is a forfeiture, the Courts have power to relieve against it. The first question only has been considered by the lower Appellate Court, and the view taken by the learned Judge on his reading of some decisions of this Court is that no denial of title by a person in the position of the defendant could have that operation. I agree with the appellant that the learned Judge has misappreciated the effect of those decisions. But that does not dispose of the question.

9. It must be premised that there is no statutory law under which a denial of title by an agricultural lessee acts as a forfeiture. It is argued, and the argument is founded on several decisions of this Court, that the analogy of the Transfer of Property Act should be applied although such leases are specifically exempted. I have, speaking for myself, pointed out in another case the danger of this method and, where statutory provision is absent, have preferred to seek, another basis, namely, the English Law of Property. In doing so, we should, in my opinion, always bear in mind the difference in the origin of tenures and also the conditions peculiar to land tenures in this country.

10. I entirely agree with my learned brother that the only denial which we have to consider in this case is that contained in Exhibit J, and this denial is certainly not made in any transaction dealing with the property, the subject of this suit, and is not addressed to the landlord. That is the state of facts as to the denial. The tenancy in question arises in a rather peculiar manner. Claims were made to this property, and other properties by the plaintiff and the defendant and a suit ensued. Their respective rights were settled by a razinama decree, under which this property was:

to be held by the second and third defendants until the death of both of them on verumpattam right under the plaintiff without being surrendered. The defendants should pay a rental of Rs. 2 per year, and on the death of the defendants, the paramba should be taken possession of by the plaintiff or her representatives.

11. The result of this decree was to create the relationship of landlord and tenant between the plaintiff and the defendants, the tenancy being one for the joint lives of the defendants. The defendants have certainly, in Exhibit J, declared that they held the property in jemn right, but they have not granted any lease inconsistent with their life tenure, nor have they repudiated that tenure directly to the landlord.

12. It appears from an examination of the English cases that forfeiture for denial of title is based on two different principles when applied to the different classes of tenancies. The first is with regard to tenancies from year to year. In Doe dem Graves v. Wells (1839) 10 A. & B. 427, Denman, Lord, C.J., points out that with regard to tenures from year to year the words 'forfeiture' and 'disclaimer' are wrongly applied and that where a landlord brings an action to recover possession from such a tenant the evidence of a disclaimer of the landlord's title by the tenant is evidence of the determination of the will of both parties, by which the duration of the tenancy, from the particular nature, was limited 5 and viewed in this light, he held that a verbal assertion that the fee was in the tenant even though made to the landlord's agent, . was not a sufficient indication of the desire of the tenant to put an end to the tenancy in that mere words could not operate to . affect an interest in law.

13. The origin of the doctrine as applying to tenancies not terminable at will is to be found in 3 Bacon's Abridgement, page 196, 'Estate for Life and Occupancy'.

Another way of forfeiture in a Court of Record is, by claiming a greater estate than he had by the feudal donation, or by affirming the reversion to be in any other person than his lord. This seems to be grounded on a rule in the old feudal law, that if a vassal denied that he held the feud of his lord, and it was proved against him, such denial was a forfeiture.

14. And then come the words explaining the limitation of this doctrine.

But, as by the feudal law the vassal was to be convicted of this denial so in our law these acts which plainly amount to a denial must be done in a Court of Record, to make them a forfeiture; for such act of denial appearing on record is equivalent and equally conclusive as a conviction upon solemn trial; and all other denials, that might be used by great lords for trespassing their tenants, and for a pretence to seize their estates, by our law were rejected, for such convictions might be made by such great lords where there was no just cause; bat the denial of the tenure upon record could never be counterfeit; or be abused to any injustice; and therefore this notorious and solemn act of the tenant was retained as a just cause of forfeiture by our law.

15. That is the origin of the doctrine of forfeiture by denial, and it is hardly necessary to point out how unequivocal and direct a denial must be to come within the mischief of this doctrine.

16. The modern application of this doctrine is to be found stated in Woodfall's Law of Landlord and Tenant, nineteenth edition, page 431:

In order to make either a verbal or written disclaimer sufficient, it mast amount to a direct repudiation of the relation of landlord and tenant or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, which, by necessary implication is a repudiation of it.

17. This statement of the law is taken word for word from the judgment of the Court of Exchequer in Doe D Gray v. Stanion (1836) 1 M. & W. 695 and was quoted as the basis of his judgment by a very eminent Judge, Fry, J., in Vivian v. Moat (1881) 16 Ch. D 730. It is clear therefore that a mere allegation of title which does not amount to repudiation cannot work forfeiture, and it is to be noted that in the Transfer of Property Act, this distinction has evidently been borne in mind, for the only disclaimers which operate under Section 111, Clause (g), are in cases where 'the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself.' It seems to me that both the words 'repudiation' and 'renunciation' require something a great deal stronger than a mere assertion not communicated the landlord. It is impossible to lay down a hard and fast rule; but to my mind a very good test to apply would be, whether the assertion would operate as a starting point for adverse possession against the landlord (vide Doe v. Williams (1777) 2 Cowp. 622 where Lord Mansfield applies this test) and viewed in this light, the assertion will not come within its mischief.

18. I am, therefore, of opinion that there was no denial of the title within the mischief of the doctrine. That being my conclusion on the first question, I do not think it necessary to enter into a consideration of the other point, whether a forfeiture for denial of title can be relieved against. I agree with the result of my learned brother's judgment.


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