C.V. Kumaraswami Sastri, J.
1. This appeal arises out of a suit filed by the Malabar Timber Co. Ltd., now in liquidation, against the defendants for a declaration that the two hills described in the plaint schedule are the jenmom properties of defendants Nos. 2 and 3 and of a Devaswom called the Mundayam Paramba alias Tharakkumeethal Bhagavathi Devaswom and that the plaintiffs are entitled to possession and enjoyment of the properties for the unexpired portion of the term of 72 years created by the lease dated 15th April, 1915, executed by defendants Nos. 2 and 3 in favour of one Sri Manavedan Raja of which lease the plaintiffs claimed to be the assignees, and for an injunction restraining defendant No. 1, his servants, agents and assigns from interfering with the peaceful possession and enjoyment of the properties by the plaintiffs and for incidental reliefs.
2. The case for the plaintiffs is that the hills described in the plaint belong to defendants Nos. 2 and 3 and to the Devaswom of which defendant No. 2's tarwad is the manager, that by a registered lease, dated 15th April, 1915, executed by all the members of the tarwad and by the karnavan as representing the Devaswom the two hills were demised for 72 years on terms and conditions mentioned in the document, that the lessee Manavedan Raja was put in possession, entered upon possession' and remained in possession till the 5th September 1919, when the Joint Magistrate of Tellicherry prohibited him from entering on the property and that the leasehold interest of Manavedan Raja was assigned by him on 13th September, 1919, to one Govardhana Bhai Girdhar Bbai who in his turn assigned it to the plaintiff. It is alleged that defendant No. 1 who had a lease of two hills situated in the neighbourhood of the suit property attempted in 1919 to trespass upon item No. 1 of the plaint schedule taking advantage of the misunderstandings between Manavedan Raja on the one hand and defendant No. 2 on the other, that a breach of the peace was apprehended and the Joint Magistrate of Tellicherry instituted proceedings under Sections 144 and 145, Criminal Procedure Code, and by order dated 5th September, 1919, prohibited the plaintiffs and defendant No. 1 from entering upon the two hills, that the Magistrate passed final orders on 20th September, 1919, declaring that defendant No. 1 was in possession of the major portion of the two hills but that order was set aside by the High Court and the case was remanded, and that by reason of these proceedings the plaintiffs have been deprived of the actual possession and enjoyment of the hills to which the company as assignees of the lease are entitled and that the plaintiffs, therefore, claim the declaration and the reliefs prayed for.
3. The contesting defendant is defendant No. 1. He denies the claim of defendaats Nos. 2 and 3 or the Devaswom to the two hills and their right to demise these hills. He denies also that defendants Nos. 2 and 3 are the sole uralans of the Devaswom and contends that their lease of the Devaswom, property is invalid. As regards the plaintiffs' lease he says that the lease was determined by forfeiture and that there was no subsisting lease on the date of the transfer by Manavedan Raja to Govardhan Bhai Giridhar Bhai or by Govardhan Bhai Giridhar Bhai to the plaintiffs. He denies that Manavedan Raja was put in possession of these hills or exercised any acts of ownership. Then he says that the plaintiffs are not in possession, that, the claim for injunction could not be granted and that the suit for declaration is barred under Section 42, Specific Relief Act, and also that the suit is barred by limitation.
4. Defendants Nos. 2 and 3 admit the plaintiffs' claim. As regards forfeiture which defendant No. 1 says, occurred, they say:
2. These defendants also admit that the members of Kanakathitom tarwad leased these hills to Sri Manavedan alias Valia Kunhunni Thampuran on 15th April, 1915, and put him in possession.
3. As the said lessee did not pay the consideration as stipulated in the lease-deed in time, these defendants and the other members of the tarwad treating the leasehold right as forfeited demised the property on kanom to Kalliyat Nambiar, who paid the consideration as stipulated in the kanom deed. But Sri Manavedan Raja disputed the title and the right of possession of Kalliyat Nambiar.
4. As subsequently agreed between the parties, Kalliyat Nambiar, surrendered his kanom right to these defendants and these defendants admitted the leasehold right in favour of the Thampuran as valid and subsisting.
5. Then they say that defendant No. 1 and his tarwad have no right, title or possession to these hills, that his interference with the possession of their lessee is unauthorized and unlawful and that the plaintiffs are entitled to the declaration and injunction prayed for.
6. On these pleadings issues of fact and law were raised. The question of title to the hills formed the subject of issues Nos. 1 and 2. Issues Nos. 3 and 4 related to the contention that defendants Nos. 2 and 3 were not the sole trustees of the Devaswom and that even if they were the sole trustees the lease for 72 years was invalid and not binding on the Devaswom. Issue No. 5 was whether the lease in favour of Sri Manavedan Raja was true, valid, enforceable and subsisting. Issue No. 6 was whether he had possession. Issue No. 7 relates to the question whether if Sri Manavedan Raja and his transferees had no possession, the suit for a declaration alone was maintainable without a prayer for possession. Issue No. 8 is whether the lease to Sri Manavedan Raja was determined by the lessors after 15th April, 1916, and became forfeited and, if so, are the plaintiffs entitled to any relief in this suit on the strength of that lease?'
7. Then follow issues about limitation and the validity of the assignment to the plaintiff and other issues which I need not consider at present.
8. The Subordinate Judge found on issues of fact as regards title to the property that the property was not proved to belong to defendants Nos. 2 and 3. As regards possession he found that none of the properties now claimed were put in possession of Manavedan Raja. As regards the trustees of the Devaswom he found that defendants Nos. 2 and 3 were hot the sole trustees but there were other, trustees also. As regards the lease his finding was that the lease was put an end to prior to the assignment to the plaintiffs and that on the date of the assignment by Govardhan Bhai Giridhar Bhai to the plaintiff there was no subsisting lease capable of assignment. He has found the other issues against the plaintiffs both of law and of fact. Against the decree of the Subordinate Judge the present appeal has been filed by the plaintiffs.
9. I think that, before any question of title could be gone into or determined in this appeal, the plaintiffs will have to show that the assignees have a valid or subsisting lease for, unless they can prove that fact, it does not matter in whom the title vests. On this part of the case I have come to the conclusion that the decision of the Subordinate Judge is right.
10. His Lordship discussed the evidence and proceeded
11. On these facts the question is whether there was a subsisting lease. The Subordinate Judge looks at it from the point of view that Clause (b), Section 111, applies and that ipso facto the lease became void at the expiry of one year, Section 111, Transfer of Property Act, provides for the determination of a lease and the relevant clauses are Clause (b) and (g). Section 111(6) says:
A lease of immoveable property determines where such time is limited conditionally on the happening of some event by the happening of such event.
12. The Subordinate Judge treats the last clause of Ex. A as conditionally limiting the period of lease on the happening of some event, viz., the failure to discharge the debts within one year, and thinks that the lessee having failed to discharge the debts within one year the lease became void ipso facto. Clause (g) is as follows:
A lease of immovable property determines 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 the lease shall become void; 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; and in either case the lessor or his transferee does some act showing his intention to determine the lease.
13. Whatever doubts there may be as regards treating this case as falling under Clause (6), it seems to be clear that the case falls under Clause (g). I have already set out the terms of the lease and the clause that provides that if the debts are not paid within one year all the stipulations shall become void and the lessee will have to lose the advance of Re. 8,000 and odd which he had paid. It is, no doubt, true that in such cases the law treats the contract in the lease as voidable and this is borne out by the authorities cited by Mr. K.S. Kriahnaswami Iyengar, namely, Quesnal Forks Gold Mining Co. v. Ward (1920) A.C. 222 : 89 L.J.P.C. 13 : 122 L.T. 206 and Davenport v. Reg. (1878) 3 A.C. 115 : 47 L.J.P.C 8 : 37 L.T. 727. But that does not make much difference in this case, as it has been avoided by Ex. 24. The lessors demised it again on the footing that the first demise had been determined. It is also clear that they wanted to do some act showing their intention to terminate the first lease and so they gave the fresh lease and according to the plaintiff himself put the lessee in possession of some at least of the properties covered by the demise. I may here refer to the documents Exs. AA series which are put in to show that Nambiar was in possession of some of the properties. So far, there can be little doubt from the evidence. But the contention of Mr. Krishnaswami Iyengar is two-fold. One is that it would not do simply to re-enter or to put an end to the lease or show some intention of putting an end to the lease, but you must also give notice to the lessee of your having done so. So far as the Act itself is concerned, there seems to be nothing to show that notice is to be given. I, for my part, think that, if the lessee comes to know of the fact, it is sufficient. It does not matter when he comes to know of it. No period is fixed for that. Of course, if without the knowledge by the lessee of the lessor's act he creates title bona fide in some third person, it is quite a different question; or if the lessor has subsequently done something which the lessee wanted to take advantage of as a waiver that might be a different question. They do not arise here.
14. In this case I think it is perfectly clear from the evidence that Manavedan Raja was aware of the lease Ex. 24 in favour of Chathukutti Nambiar before he assigned his lease in favour of Govardhan Bhai Girdhar Bhai or the plaintiffs. I have pointed out that portion of the evidence on the plaintiffs' side which shows that the Nambiar was in possession of some at least of the properties demised when there were disputes between Nambiar and defendant No. 1. In para. 6 the plaint distinctly says that misunderstandings arose between Manavedan Raja on the one hand and defendant No. 2 and Chathukutti Nambiar on the other, that a breach of the peace was apprehended and that the Joint Magistrate of Tellicherry instituted proceeding under Sections 144 and 145, Criminal Procedure Code, and on 5th September, 1919, passed an order prohibiting the parties from entering on the properties and afterwards passed the final order. It does not matter whether these orders were confirmed by the High Court or not. We have the fact that on 5th September, 1919, there were disputes between Manavedan Raja and defendant No. 2 and Chathukutti Nambiar. That these disputes referred only to the lease executed in favour of Chathukutti Nambiar is clear and I have little doubt that by that time Manavedan Raja must have been aware that defendants Nos. 2 and 3 put an end to his first lease, or claimed right to do so, and leased the property to Nambiar. Then we have the fact that O.S. No. 202 of 1919 on the file of the District Munsif's Court, Kuthuparamba and O.S. No. 9 of 1929 of the Sub-Court, Tellicherry, were filed, the plaints in which have been filed as Exs. 25 and 27; and Ex. 36 which is the report of the Commissioner in O.S. No. 202 of 1219 shows that Manavedan Raja was actually at the time of the dispute in the locality. I find it difficult to believe that Manavedan Raja during that period was not aware that defendants Nos. 2 and 3 claiming to put an end to his lease, because he had not discharged the debts, purported to lease it to Chathukutti Nambiar. If he became aware of it, it is immaterial whether he got notice of it from the lessors or not. Where the lessors have done an act which 'unequivocally shows that they took advantage of the forfeiture--here they leased the property to somebody else and that fact comes to the notice of the lessee, there is no reason to hold that because formal notice was not given, his right under the first document continues and the lessee can go on assigning his lease to somebody else and claim a right which had been put an end to by the lessor. It is not contended in this case that the lessee did perform his part. There was forfeiture when the lessee did not perform the covenant and the lessors were entitled to take advantage of the forfeiture.
15. I may also say that throughout these proceedings it was never asserted that Manavedan Raja had no notice that defendants Nos. 2 and 3 had put an end to his lease. He has not himself given evidence in this case although he was managing the properties on behalf of Goverdhan Bhai Girdhar Bhai; and it seems to me that throughout the proceedings, although in the written statement it was said that there was this forfeiture and plaintiffs' rights were put on the ground that the first lease was revived after surrender of the property by Nambiar, it was never suggested that the lease in favour of Nambiar was invalid because the first lease was subsisting. If the particular date was in question it was the duty of the plaintiff or Manavedan Raja to have given evidence as to exactly when Manavedan Raja had notice. It seems to me that he must have had notice at least by 5th September, 1919, and that will be sufficient for the purposes of this case.
16. The other question is whether the release by Nambiar and the acceptance by defendants Nos. 2 and 3 of the original lease as subsisting would be sufficient to confer a valid right. If the first lease had been put an end to, it seems to me that there can be no question of the parties saying that the lease will subsist. The only way by which they can create a further right would be only by a fresh lease, the first-lease having been determined. 11 any authority is required on this point, I think, I may refer to the case of Chengiah v. Damara Kumara Thimma 15 Ind. Cas. 445 : 24 M.L.J. 263. It is difficult to see how a transaction which the law requires to be in writing registered could be created by a declaration of the parties that an extinct lease subsists. In Chengiah v. Damara Kumara Thimma 15 Ind. Cas. 445 : 24 M.L.J. 263 it was held by Sir Charles Arnold White, C.J., and Benson and Wall is, JJ., that where a right of forfeiture accrues to the lessor and he elects to determine the tenancy the, election is irrevocable and the parties cannot by any subsequent agreement revive the old tenancy. Wallig, J., observes:
I agree and will only add, I do not thick that the framers of the Transfer of Property Act intended to depart from the well-established rule of English Law that where a right of forfeiture accrues to the lessor he is put to his election and if he manifests his intention to enforce the forfeiture that is an election to determine the tenancy and the election is irrevocable.
17. The learned Judge refers to Jones v. Carter (1846) 15 M. & W. 718 : 71 R.R. 800, Dendy v. Nicholl (1858) 27 L.J.C.P. 220 : 4 C.P. (N.S.) 376 : W.R. 502 : 31 L.T. (O.S.) 134 : 114 R.R. 773, Grimwood v. Moss (1872) 7 C.P. 360 : 41 L.J.C.P. 239 : 27 L.T. 268 : 20 W.R. 972 Evans v. Wyatt (1881) 43 L.T. 176 : 44 J.P. 767 and Clough v. L. & N.W.Ry. Co. (1872) 7 Ex. 26 : 41 L.J. Ex. 17 : 25 L.T. 708 : 20 W.R. 189. Then the learned Judge goes on to say:
In this case the lessor elected to determine, the election was irrevocable and the lease was at an end and could not be revived.
18. It is, therefore, difficult to see how, a forfeiture having been incurred and a fresh lease having been given, the lease could be revived by any act of the parties, simply saying that they agree to be bound by the terms of the old lease. I am, therefore of opinion that the lease of Manavedan Raja was determined and the forfeiture was enforced and the plaintiffs acquired no title to the property.
19. This renders it unnecessary for us to consider the other issues and we say nothing about them. We leave the question of title and possession undetermined. That is a matter which should be fought out between defendant No. 1 and defendants Nos. 2 and 3, nor is it necessary to consider the contention that defend ants Nos. 2 and 3 are the sole uralans of the temple and the questions whether the suit is barred by Section 42, Specific Relief Act, and whether an injunction could be granted.
20. It is rather unfortunate that the matter should be left thus; but the difficulty has arisen from the plaintiff's conduct in not getting a fresh lease when Nambiar is said to have surrendered his rights. The Subordinate Judge held against them. They persisted in their attitude saying that the lease is valid and bringing up the matter here.
21. The appeal fails and is dismissed with costs of respondent No. 4.
22. I agree.