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Duli Chand and ors. Vs. Rajkissore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal88
AppellantDuli Chand and ors.
RespondentRajkissore
Cases ReferredBench Mahomed Amir v. Dianut Alt
Excerpt:
mokurari lease - covenant to forfeit lease if rent be unpaid--payment of rent after suit but before decree--relief against forfeiture--bang. act viii of 1869 section 52. - mitter, j.1. this suit was brought by the plaintiffs for the cancellation of a mokurari lease. it was based upon the terms of the mokurari lease. these terms are to the following effect: 'if the said mokuraridar and her heirs fail to pay the mokurari rent for any year in full, then we, the proprietors, and our heirs, shall have the power to deduct the rent due to us from the nuzarana-money, and after paying the balance of the nuzarana-money to the mokuraridar and her heirs, and cancelling the mokurari patta, take seer possession of the share in the said mauza.' it was stated in the plaint that, for seven successive years, this condition of the lease was broken, and the full amount of rent for each of these years remained in arrear at the end of each year; that the plaintiffs' predecessor.....
Judgment:

Mitter, J.

1. This suit was brought by the plaintiffs for the cancellation of a mokurari lease. It was based upon the terms of the mokurari lease. These terms are to the following effect: 'If the said mokuraridar and her heirs fail to pay the mokurari rent for any year in full, then we, the proprietors, and our heirs, shall have the power to deduct the rent due to us from the nuzarana-money, and after paying the balance of the nuzarana-money to the mokuraridar and her heirs, and cancelling the mokurari patta, take seer possession of the share in the said mauza.' It was stated in the plaint that, for seven successive years, this condition of the lease was broken, and the full amount of rent for each of these years remained in arrear at the end of each year; that the plaintiffs' predecessor in title obtained a decree for rent on the 31st May 1877, which, up to date of suit, had not been satisfied. That decree was for Rs. 4,444-5-4. The prayers of the plaint were: first, that the mokurari patta may be cancelled and set aside; secondly, that, after deducting Rs. 3,130-14-3, the principal amount of the arrears of rent, the balance, Rs. 619-1-9 of the nuzarana-money be awarded to the defendant, or that the plaintiff be declared to be at liberty to deposit the said money in Court after deducting the total amount covered by the decree for arrears of rent due to the plaintiffs from the defendant, or that any other order as the Court think proper may be passed on the subject; and thirdly, that, by dismissing the defendant, the plaintiffs may be put in seer possession of the property. It appears that, after the suit was instituted, the defendant satisfied the decree of the 31st May 1877 by depositing the money due under it into Court. In this state of facts the lower Court, under the provisions of Section 52 of Beng. Act VIII of 1869, dismissed the plaintiffs' suit for the cancellation of the lease. It is contended before us in the first place that the provisions of Section 52 would not apply, because that section only refers to suits for the cancellation of leases which may be brought by the landlord under the provisions of the Rent Act for the cancellation of leases. Now this question came up before the Judicial Committee of the Privy Council in the case of Duli Chand v. Meher Chand Sahu 12 B.L.R. 439. That was also a suit by a landlord to cancel a mokurari lease in pursuance of a similar agreement contained in the lease. The Court of First Instance found in favour of the landlord upon the question of non-payment of rent, but dismissed the claim for cancellation upon the ground that the claim was barred by limitation. The High Court set aside the decree of the lower Court with reference to the claim for the cancellation of the lease, and awarded a decree in terms of Section 78, Act X of 1859. (Section 52 of Act VIII of 1869 is word for word the same as Section 78 of Act X of 1859). Against the decree of the High Court the landlord appealed, contending that he was entitled to a decree declaring the lease to be unconditionally cancelled. The Judicial Committee observed that it was contended before them that 'the latter part of Section 78 only applied to cases where the statutory power was given by this Act to cancel leases, and not to cases where the right to cancellation accrued in consequence of covenants in the lease itself. But their Lordships are of opinion that that would be placing too narrow a construction upon an Act which may be termed, upon the whole, a remedial one; and they see no sufficient reason for limiting what is the prim facie and natural meaning of its terms to the extent contended for. Their Lordships are, therefore, of opinion that the High Court was right in its determination on the point in question.'

2. This is, therefore, clear authority for the proposition that, whether the right of cancellation arose from the provisions of the Act itself, or whether it arose under any agreement between the parties, Section 78 of Act X of 1859 was applicable to a suit of this nature. Therefore Section 52, Act VIII of 1869, which now takes its place, is similarly applicable to the present suit. Under that section, if the arrears of rent due under the decree of the 31st May 1877 had not been paid up by the defendant, no doubt, the Court might have awarded a decree in favour of the plaintiffs for the cancellation of the lease; but then that decree could not have been executed, if, under the provisions of the 2nd para. of that section, the arrears of rent had been paid into Court within fifteen days from its date. In this case, it is not disputed that the arrears due under the decree of the 31st of May 1877 were deposited in Court as soon as the suit was brought. Therefore it is quite clear that, after the arrears were paid, there could not be a decree for cancellation of the lease, notwithstanding the express stipulation in the lease. It is contended before us that there is a distinction between this case and the Privy Council case quoted above, and the case decided by this Bench Mahomed Amir v. Dianut Alt 9 C.L.R. 185; and the distinction pointed out is this, that, under the conditions of the lease in this case, the defendant would be entitled to get back the nuzarana. But so far as the point before us is concerned, it seems to us that that distinction is immaterial. The object of the rule of law laid down in Section 52, Act VIII of 1869, and also in the cases cited above, is to prevent forfeiture if the rent be paid; and a Court of Equity grants this relief against forfeiture, because it considers that it would be too hard upon the tenant if such a condition as this were strictly enforced. Having regard to the reason of the rule, we do not think the distinction pointed out would make any difference as to the applicability of Section 52. We think that the decision of the lower Court is correct and dismiss this appeal with costs.


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