1. This appeal arises out of a suit, brought by the plaintiff to recover rent and damages for the years 1309, 1310 and 1311, M.S. from the defendant on the strength of a registered kabuliat.
2. The defendant admitted execution of the kabuliat, but stated that he was made to execute it under pressure, that he never entered into possession, but as soon as he discovered the unprofitable character of the tenure, he tendered a notice of surrender.
3. The District Judge has found that the defendant has failed to establish his claim to relief on the ground of coercion. He has also found that the notice of surrender was duly served on the plaintiff and has held that under Section 111(h) of the Transfer of Property Act, the defendant was entitled to surrender.
4. The plaintiff appeals to us and urges that the defendant was bound by the terms of the contract and not entitled to surrender the land before the expiry of the term of the lease.
5. We have examined the lease. It appears that it was a registered lease entered into in 1900, for certain lands for 5 years from 1308 to 1312 Mulki (1900 to 1905 A.D.). There was a provision in it to this effect: 'I shall not within the term tender istafa in respect of the lands settled with me, that if I do so, it shall be null and void, that if I do not pay the rent by 4 consecutive instalments as given below, the malik of the land shall be authorised to take khas possession of the land without waiting for the expiration of the term of this kabuliat or to settle the same with another person.'
6. Now, it appears to us that, in these circumstances, the lease being for a definite term and there being an express clause in it prohibiting surrender during the pendency of that period, the defendant could not surrender: and that the decision of the District Judge is wrong. The provisions of Section 111 (h) of the Transfer of Property Act cannot apply to such a case as this. Those provisions can only apply to leases which can be surrendered and it appears to us that this is not one of those leases.
7. The appeal is decreed with costs.