1. This is an appeal by the defendant in a suit for arrears of rent of a colliery held by him under the plaintiffs on the basis of a lease, dated the 23rd September 1901. The plaintiffs seek to recover their dues in respect of the years 1313 to 1317 B. S., and pray for ejectment of the defendant on the ground that, according to the terms of the contract between the parties, the lease had been forfeited by non-payment of rent. The Subordinate Judge has decreed the suit. His decision has been assailed in this Court on two grounds, namely first, that a larger sum has been allowed to the plaintiffs than what is really due to them, and, secondly, that, on the face of the plaint, the claim for ejectment cannot be sustained.
2. The first point is sought to be established in two ways, namely, first, that credit should have been allowed for a sum of Rs. 1,500 and secondly, that abatement of rent should have been allowed in respect of seven instead of six bighas. There is no force in either of these contentions. Upon the facts found by the Subordinate Judge, it is plain that the sum of Rs. 1,500 paid by the defendant had been rightly appropriated by the plaintiffs in satisfaction of their dues for an earlier period. As regards the amount of abatement legitimately allowable, we see no reason to differ from the Subordinate Judge as to the quantity of land acquired by the Railway Company. In our opinion, the amount decreed by the Subordinate Judge is recoverable by the plaintiffs from the defendant.
3. The second point raises an important question of law and requires careful consideration. The lease contains the following clause:
We will pay the whole amount of the rent, year by year, by the 30th of Chaitra. If by non-payment of rent, we keep a cou(sic) thereof unpaid, you will have power, in the beginning of the month of Bysack of the next following year, to take khas possession of the whole land lying within the under-mentioned boundaries, including the coal mine thereon made by m, by your own authority, and settle the same with another tenant and realise the amount of arrears with interest from our properties, moveable and immoveable, standing in our own names or benam and from our persons.'
4. The plaintiffs contend that as default was made in the payment of rent the tenancy has been forfeited and they have become entitled to possession of the property demised. The Subordinate Judge has given effect to this contention. We are of opinion that his decision overlooks more than one elementary principle. In the first place, no decree for ejectment can be, made for a non-payment of the arrears of four years. It is well settled that if rent is claimed for two consecutive years, ejectment cannot be decreed on the ground of forfeiture incurred at the end of the first year, because the very fact that rent is claimed for the second year, shows conclusively that the forfeiture, if any, incurred at the end of the first year has been waived by the landlord. Illustrations of this principle will be found in the cases of Jogeshuri Chowdh(sic)ain v. Mahomed Ebrahim 14 C. 33 : 7 Ind. Dec. (N.S) 23; Sitanath Midda v, Basudev Midda 2 C. L. J. 540; Kala-nani Singh v. Gunpat Singh 11 Ind. Cas. 974 : 16 C. W. N. 104; Raj Mohan De v. Mati Lal Saha 33 Ind. Cas. 331 : 22 C. L. J. 546. In the second place, a decree for ejectment cannot be made in this case, even on account of default of payment of rent of the fourth year, as, on the face of the plaint, there was no completed forfeiture of the tenancy at the date of the institution of the suit. The statutory provision on the subject is embodied in Section 111, Clause (g), of the Transfer of Property Act, and, may, for the purposes of this case, be enunciated in the following terms: 'a lease of immoveable property determines by forfeiture, 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; and the lessor or his transferee dues some act showing his intention to determine the lease.' This makes it plain that where the rights and obligations of the parties are regulated by Section 111 (g) of the Transfer of Property Act, there is no determination of a lease by forfeiture immediately on breach of covenant, but the lessor is required to do some act thereafter, showing his intention to determine the lease; in other words, the breach must be followed by an overt act on the part of the lessor before the tenancy can be deemed to have determined in the eye of the law. This view was adopted by this Court in the case of Anandamoyee v. Lakhi Chandra Moitra 33 C. 339 : 3 C. L. J. 274 which was accepted as a correct exposition of the law in Qadir Bakhsh v. Prag Narain 14 Ind. Cas. 747 : 9 A. L. J. 794. The distinction as regards the question of forfeiture, between cases governed by the Transfer of Property Act and by other Statutes, has been repeatedly pointed out in Madras where it has been surmised that the requirements of a further not is probably a relic of the antiquated technicality of the Common Law which required the formality of re-entry by the lessor of leased lands before the lease could be determined for breach of covenant [Warvelle on Ejectment, Section 47, Newell on Ejectment, Chapter VIII, Section 47, Venkataramma Bhatta v Gunduraya 31 M. 403 : 4 M. L. T. 221; Padmanabaya v. Ranga 6 Ind. Cas. 447 : 34 M. 161 : 20 M. L. J. 930 : 8 M. L. T. 110 : (1910) M. W. N. 482; Chengiah v. Damara Kumara Thimma 15 Ind. Cas. 445 : 21 M. L. J. 263; Korapalu v. Narayana 20 Ind. Cas. 930 : 38 M. 445 : 25 M. L. J. 315 : (1913) M. W. N. 655 : Ramakrishna Mallay v. Baburaya 17 Ind. Cas. 917 : 23 M. L. J. 715 : 12 M. L. T. 656; Vidyapurna Thirtha Swamiar v. Ringappayya 21 Ind. Cas. 405 : 25 M. L. J. 36 : 14 M. L. T. 314 : (1913: M. W. N. 901; Sivarama Aiyar v. Alagappa Chelty 31 Ind. Cas 211 : (1915) M. W. N. 845 : 2 L. W. 916. The requirements of the Transfer of Property Act are perfectly plain and its express provisions cannot be ignored or treated as surplusage, whatever may have been the history of the development of the law on the subject in England Goodriqht v. Oator (1780) 2 Dougl. 477 : 99 E. R. 304; Evans v. Davis (1879) 10 Ch. D. 747 at p. 763 : 48 L. J. Ch. 223, 39 L. T. 391 : 27 W. R. 285; Jones v. Garter (1846) 15 M. & W. 718 : 71 R. R. 800 : 10 Jur. 33 : 153 E. R. 1040, Venn v. Smart (1810) 12 East 444 : 104 E. R. 173; Baylis v. Le Gros (858) 4 C. B. (N.S) 537 : 4 Jur. (N.S) 513 : 140 E. R. 1201 : 31 L. T. (o. s.) 215 : 114 R. R. 840; Roberts v. Davey 1833 : 4 B. & Ad. 664 : 1 N. & M. 443 : 2 L. J. K. R. 14 : 110 E. R 606 : 38 R. R. 348; Serjeant v. Nosh (1903) 2 K. B. 304 : 72 L.J.K.B. 630 : 89 L. T. 112 : 19 T. L. R. 510; Moore v. Ull(sic)oats Mining Co. Ltd. (1908) 1 Ch. 575 : 77 L. J. Ch. 282 : 97 L. T. 845 : 24 T. L. R. 54; Grimwood v. Moss (1872) 7 C. P. 360 at 364 : 41 L. J. C. P. 239 : 27 L. T. 268 : 20 W. R. 972. It is further obvious that the institution of the suit for ejectment cannot be rightly regarded as the requisite act to show the intention of the landlord to determine the lease within the meaning of Section 111, Clause (g). The forfeiture must he completed and the lease determined before the commencement of the action for ejectment, for there must be a cause of action in existence antecedent to the suit Deo Nandan Pershad v. Meghu Mahton 34 C. 57 at p. 63 : 5 C. L. J. 181 : 11 C. W. N. 225. The act, however, need not be a formal notice to quit and may be a demand for possession, oral or written; what is essential is an overt act, which intimates to the tenant the intention of the landlord to determine the lease. In the case before us, the plaint does not even allege such an act on the part of the landlords Consequently there is no escape from the position that the plaint does not disclose any cause of action for the claim in ejectment.
5. The result is that this appeal is allowed in part and the decree, in so far as it entitles the plaintiffs to eject the defendant, is cancelled; but it will stand in all other respects. Each party will pay his own costs in this Court.