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Abbakka Shetthi (Died) and ors. Vs. Seshamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in25Ind.Cas.944
AppellantAbbakka Shetthi (Died) and ors.
RespondentSeshamma and ors.
Cases ReferredIn Srimati Malika Dossi v. Makham Lal Chowdhry
Excerpt:
transfer of property act (iv of 1882), section 111 - forfeiture of lease--denial of landlord's title--overt act not essential--setting up third person's title. - .....by the landlord to entitle' him to succeed in a suit to eject based on an alleged forfeiture by denial of title. assuming this to be so there is in this case no setting up. the title of a third person against his landlord such as would entail a forfeiture.2. all that the tenants did was, when the 4th defendant in this suit brought a suit against them in respect of items 1 to 8, to compromise the suit after first denying the 4th defendant's title under the mistaken impression that the title was in him. they have never refused to pay the rent due or set up the title of the 4th defendant against the plaintiffs until after the suit was filed. there was, therefore, no cause of action on which the plaintiff could sue and in fact he alleged an entirely different cause of forfeiture, that is.....
Judgment:

Napier, J.

1. It was held by this Court in a case, Karapalu v. Narayana 20 Ind. Cas 930 : 25 M.L.J. 315 : (1913) M.W.N. 655, that as the Transfer of Property Act does not in terms apply to agricultural leases no overt act need be proved by the landlord to entitle' him to succeed in a suit to eject based on an alleged forfeiture by denial of title. Assuming this to be so there is in this case no setting up. the title of a third person against his landlord such as would entail a forfeiture.

2. All that the tenants did was, when the 4th defendant in this suit brought a suit against them in respect of items 1 to 8, to compromise the suit after first denying the 4th defendant's title under the mistaken impression that the title was in him. They have never refused to pay the rent due or set up the title of the 4th defendant against the plaintiffs until after the suit was filed. There was, therefore, no cause of action on which the plaintiff could sue and in fact he alleged an entirely different cause of forfeiture, that is non-payment of rent which was found against. In this view the suit was rightly dismissed by the lower Appellate Court.

3. The second appeal is dismissed with costs.

Sadasiva Aiyar, J.

4. I entirely concur with the judgment just now pronounced by my learned brother.

5. In the case of Korapalu v. Narayana 20 Ind. Cas 930 : 25 M.L.J. 315 : (1913) M.W.N. 655 Tyabji, J., and myself followed Padmanabaya v. Ranga 6 Ind. Cas. 447 : 31 Ma. 161 : 8 M.L.T 110 : (1910) M.W.N. 462 : 20 M.L.J. 930 in which it was held that the provision in the Transfer of Property Act, Section 111 about a further act being necessary besides the breach of the covenant in the forfeiture clause to give rise to the cause of action in ejectment, was a technical rule brought over from the English Law and need not be followed in India unless the Transfer of Property Act applies to the lease.

6. As regards the forfeiture of a tenant's rights on account of his denial of the landlord's title, the Indian Common Law is not so strict against the tenant as the English Common Law. It is, no doubt, on this ground-among others that both under the Bengal Tenancy Act and the Madras Estates Land Act mere denial of the landlord's title will not entitle the landlord to eject a ryot See Sections 9, 151 and 153 of the Madras Estates Land Act; Debiruddi v. Abdur Rahim 17 C. 196, Dhora Kairi v. Ram Jewan Kairi 20 Ca. 101. and Srimati Malika Dassi v. Makham Lal Chowdhry 9 C.W.N. 928 : 2 Cri.L.J. 389 . Even in cases not coming under the Madras Estates Land Act where the landlord claims to eject on the ground of the denial of his title in the case of an agricultural lease, such a claim should, in my opinion, not be viewed by. the Courts in India with much sympathy and the right of the landlord to eject should be recognised only to the extent to which by long established precedents he has become so entitled.

7. In Srimati Malika Dossi v. Makham Lal Chowdhry 9 C.W.N. 928 : 2 Cri.L.J. 389 it was held that an assertion by a tenant that the person claiming to be his landlord is not entitled to the whole rent but has co-shares who must join in an action for rent, is not such a disclaimer as would effect a forfeiture of the tenancy. At page 393 the following passages occur, 'It has not been suggested, nor do we think could it be successfully suggested, that the partial denial of the title of the landlord effected a partial forfeiture of the tenancy and conferred upon the tenant two inconsistent characters, namely, that of a tenant in respect of an undivided share of the land included in the tenancy and of a trespasser in respect of the remainder. To constitute a disclaimer there must be a distinct and unequivocal renunciation of the tenancy and we are not prepared to extend the application of the doctrine to a case in which the tenant does not set up a title to the whole in himself or a title to the whole in others, but merely questions the 'extent of the interest of the plaintiff and his title to receive the entire rent.' The present case is even stronger for the tenant, as he never denied the landlord's title to receive the entire rent but only admitted in good faith the superior title of a third person to a portion of the lands included in the tenancy. I, therefore, hold that no forfeiture was incurred. The second appeal will be dismissed with costs.


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