1. This is an appeal by the plaintiffs in action in ejectment. The case for the plaintiffs is that they are raiyats that the defendants are the representatives-in- interest of an under-raiyat and that they have unlawfully continued in occupation of the land notwithstanding the service of notice to quit in accordance with Clause (b) of Section 49, Bengal Tenancy Act. They accordingly instituted this suit on the 7th January 1918 to eject the defendant. The Court of first instance decreed the suit upon appeal that decision has been reversed by the Subordinate Judge. On the present appeal three questions have been raised, viz., first, what was the status of the plaintiffs? Were they raiyats as alleged by them or tenure-holders as alleged by the defendants? Secondly, if the defendants were under-raiyats under the plaintiffs, has their tenancy terminated by a notice to quit and, thirdly, have the plaintiffs by acceptance of rent from the defendants subsequent to the service of notice to quit, waived their right to eject them.
2. As regards the first question, the status of the plaintiffs must be determined with reference to the lease obtained by then1 from the talukdars the 10th May 1860, on a true construction of this document, there is no room for controversy that the plaintiffs acqured the interest of a raiyat. But it has been argued that, inasmuch as title plaintiffs and their landlord covenanted that on failure to pay rent under the lease the landlord would be entitled to recover rent by the summary prooess prescribed in the Putni Regulation of 1819, the status of the plaintiffs must be deemed to have been that of a tenure-holder if not that of a pulni talukdar. We are of opinion that there is no force in this contention. The tenancy of the plaintiffs was unquestionably a raiyat's tenancy. The status of the plaintiffs could not be elevated because a condition was annexed to the lease which entitled the landlord to realise rent by summary process. It is not necessary for our present purpose to determine whether such a condition is valid. It is sufficient to hold that this covenant does not alter the nature of the tenancy. We hold, accordingly, that the plaintiffs were raiyats and the defendants were under-raiyats.
3. As regards the second point, we have to consider whether the tenancy had been terminated by a valid notice to quit. It is not disputed that on title 26th December 1914 a notice was served by the plaintiffs upon the defendants. This notice was described as a notice under Section 49, Bengal Tenancy Act. It stated, in the first place, that the plaintiffs did net admit that the defendants were under-raiyats. But it was added that if they were under-raiyats they should vacate the land. There was no, spcification of the date when the defendants were required to vacate the lanr1. But the suit was not instituted till the 7th January.1918. The question arises whether this is a valid notice to quit within the meaning of Clause (b) of Section 49, Bengal Tenancy Act; which provides that an under-raiyat shall not be liable to be ejected by his landlord except when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. In the present ease, the predecessor-in-interst of the defendants entered upon the land on the basis of 9 kabuliyat executed by him on the 12th May 1898 for 3 term of one year. After the expiration of the term the tenant held over, and after his death, his representatives in-interest have continued in occupation of the land on payment of rent to the landlords. The defendants must be deemed to have been under-raiyats who held otherwise than under a written lease. They were consequently entitled to a notice to quit, but the section does not specify the form, or the ccntents thereof. It was pointed out by Sir Lwarence Jenkins, C.J., in the case of Harifulla Gain v. Benode Behary Mondol 19 Ind. Cas. 557 : 17 C.W.N. 932 that the technicalities of the English Law relating to the form or contents of a notice to quit should not be introduced in connection with the provisions of Section 49, Bengal Tenancy Act. There is sufficient compliance with the requirements of Section 49 if what is served upon the tenants gives him notice to quit the land at the end of the agricultural year next following and the suit is inistituted after the lapse thereof. This view is in accordance with that adopted in the cases of Maharullah Patwari v. Madan Gazi 1 C.W.N. 133; Dwarka Nath v. Rani Dassi 28 C. 308 and has been subsequently followed in the cases of Chandi Charan Nath v. Sotnla Bibi 44 Ind. Cas. 254 : 28 C.L.J. 91 : 22 C.W.N. 179. In the case before us, the notice is described as a notice under Section 49, Bengal Tenancy Act, and the suit has teen instituted long after the expiry of the agricultural year following that in which the notice was served. We hold accordingly that the requirments of Section 49 have been fulfilled.
4. As regards the third point, our attention has been drawn to the fact that after the service of notice on the defendants, the plaintiffs received from them rent for the year 1915-1916. It has been argued before us that receipt of rent subsequent to the service of notice to quit operated as waiver. We are of opinion that this contention is fallacious. Subsequent receipt of rent due prior to forfeiture is not waiver. This was laid down by Sir Barnes Peacock, C.J., In the case of Peer Bux v. Nowzah Ally Marsh. 25 : W.R.F.B. 10 : 1 Ind. Jur. (O.S.) 7 : 1 Hay 89 where he observed that receipt of rent for any year is conformative of tenancy for that year and conclusively binds the landlord from contending that the defendant was a trespasser in that or any previous year. It does not, however, debar the landlord from maintaining that the defendant was not a tenant in respect of the period subsequent to that for which rent had been received. This rule has been followed in this Court in the cases of Jogeshuri Chowdhrain v. Mahtmed Ebfahittt 2 C. 33 : 7 Ind. (N.S.) 23; Sitanath Midda v. Basudeb Midda 2 C.L.J. 540 and Kalanand Sirgh v. Gunpat Singh 11 Ind. Cas. 974 : 16 C.W.N. 104. The rule was applied, by the Madras High Court in the case of Mazhoor Pudukudi v. Paramban Moideen 6 Ind. Cas. 264 : 8M.L.T. 99 : (1910) M.W.N. 484 and Padmanabaya v. Ranga 6Ind. Cas. 447 : 34 M. 161 : 8 M.L.T. 110 : (1910) M.W.N. 462 : 20 M.L.J. 930. The principle was affirmed recently by the Patna High Court in the ease of Shah Wali Ahmad v. Hussaini Begum 42 Ind. Cas. 655 : 2 P.L.J. 595 : 2 P.L.W. 52. This is in accordance with the rule well recognised in England where, in the case of Price v. Worwood (1859) 4 H. &N.; 512 : 118 R.R. 584 : 28 L.J. EX. 329 : 5 Jur. (N.S.) 472 : 7 W.R. 506 : 157 E.R. 941, Pollock, C. B., stated that receipt of rent is not waiver of forfeiture unless it be of rent due after the forfeiture was incurred. Entry for condition broken does not Vat all affect the right to receive payment of a pre -existing debt. The same view had been taken earlier in the case of Dendy v. Nicholl (1858) 4 C.B. (N.S.) 376 : 27 L.J.C.P. 220 : 6 W.R. 502 : 114 R.R. 773 : 31 L.T. (O.S.) 134 : 140 E.R. 1130 and was subsequently approved in the case of Penton v. Barnett (1898) I.Q.B. 276 : 67 L.J.Q.B. 11 : 77 L.T. 645 : 46 W.R. 33 : 14 T.L.R. 11. The defendants in the case before us were riot liable to be ejected till the commencement of the year 1916-17. Consequently, the acceptance of rent from them for the preceding year during which they continued to be tenants was in no sense a waiver of the right of the plaintiffs to eject them.
5. The result is, that this appeal is allowed the decree made by the Subordinate Judge set aside and that of the Court of first Stance restored with costs in all the Courts.