1. The plaintiff as usufructuary mortgagee from the mulgar of the plaint land has instituted this suit to recover arrears of mulgeni rent and for possession of the land on the ground that the defendants who are the mulgeni tenantshave incurred forfeiture by non-paymen of rent and by alienation contrary to the terms of the lease. The forfeiture on the ground of alienation is not pressed before me.
2. Mr. Adiga for the plaintiff-appellant has argued three points: (1) that the lower Courts ought to have decreed to him rent at the rate of Rs. 27 instead of at Rs. 20-4-0; (2) that as usufructuary mortgagee he will be entitled to enforce the forfeiture clause in the lease; and (3) that if it be held that the defendants are entitled to be relieved against the forfeiture, he must be paid the rent for the year 1921 which has been disallowed to him on the ground that the claim in respect thereof is barred by limitation.
3. The first point arises in this way. Exhibit A is the mulgeni chit executed by the ancestors of the defendants' family in favour of the predecessor-in-title of the plaintiff's mortgagor. The document provides that a cash rent of Rs. 20-4-0 has to be paid. The property in the deed has been described as bearing an assessment of Rs. 10. The case for the plaintiff is that long subsequent to the execution of Ex. A, and after the re-settlement in the district there was an oral arrangement come to between the plaintiff's mortgagor and the defendants' family that they should pay the enhanced assessment of Rs. 7 imposed at the- re-settlement in addition to the rent of Rs. 20-4-0. Both the lower Courts have disallowed that amount on the ground that it is not open to the plaintiff to rely on this oral agreement as it contravenes the terms of s. 92 of the Evidence Act. The document is silent as to who should pay the assessment. The agreement as to the payment of enhanced assessment would be a term in addition to the terms of the contract and, therefore, evidence relating thereto would come within the prohibition ofs. 92. The payment has been rightly disallowed.
4. The next question is whether the appellant can enforce the forfeiture. As usufructuary mortgagee of the lessor's right, he would be a lessor's transferee and entitled to do so. Havu Ravlu Padti v. Ganapati Venkatraman Shenvi AIR 1930 Bom. 329 : 125 Ind. Cas. 689 : 32 Bom. LR 679 : Ind. Rul. (1930) Bom. 353 and Puthiapurayil Kannyan Baduvan v. Chennyanteakath Puthiapurayil Ali Kuthi 42 M 603 : 51 Ind. Cas. 286 : 37 MLJ 47 : 10 LW 95 : (1919) MWN 401 . The construction placed by the lower Court on Ex. C that the appellant is only entitled to collect rent is wrong. This point is conceded by Mr. Sreenivasa Rao who appears for the respondents.
5. The next point is whether the defendants are entitled to be relieved against the forfeiture, and if so, on what terms. Mr. Adiga'a contention is that as a condition of relief against forfeiture, the defendants must be directed to pay rent for the year 1921. Mr. Sreenivasa Rao contends that the claim to the rent of 1921 is not based on the usufructuary mortgage Ex. C, but on another document Ex. B which was executed on February 11, 1925, fifteen days earlier than the usufructuary mortgage in and by which the right to recover the rents for the years 1921 to 1924 was transferred to the plaintiff. Mr. Sreenivasa Rao concedes that if the original lessor has sought to enforce the forfeiture, the Court would have decreed the claim to rent for 1921 even though it is barred as a condition of relieving forfeiture. But he contends that the same indulgence cannot be granted to the plaintiff who is only a transferee from him. The provision relating to relief against forfeiture in the Transfer of Property Act is s. 114 which is in these terms; 'Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor Sue3 to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to ths lessor the rent in arrear, together with interest thereon and his fall costs of the suit, or gives such security as the Court thinks sufficient for making such payment within 15 days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred'. What the section says is as a condition of relief against forfeiture the lessee should pay or tender to the lessor the rent in arrear. The lessor would certainly include his transferee who gets all his rights under s. 109 of the Transfer of Property Act. The words 'rent in arrear' are wide enough to include the rent which the lessor may be unable to recover by reason of the bar of limitation. It is immaterial how the right to recover the said rent is vested in him whether under one document or two documents. The pnly question is whether the lessor's transferee is entitled to the rents in arrear. That being so applying the principle laid down in the said section the defendants can claim relief against the forfeiture only on payment of all the rent in arrear including the rent of 192).
6. I modify the decree of the lower Court by decreeing to the plaintiff all the arrears of rent from 1921. With this modification the second appeal is dismissed. I direct each party to bear his own costs in this appeal.