Lancelot Sanderson, C.J.
1. This is an appeal by the first defendant against the judgment of Mr. Justice Chapman, who dismissed the appeal from the judgment of the Subordinate Judge, which affirmed the decree of the learned Munsif.
2. The suit was brought for a declaration of title with respect to certain lands and for, the ejectment of defendant No. 5.
3. In the statement of claim the plaintiffs claimed a sixteen-annas interest in the said lands but under the decree it was held that their proprietary right was limited to 12 annas. The defendant No. 8 was the owner of the 4-annas interest in the said lands.
4. Defendants Nos. 2 and 3 had held the lands under a lease which was granted by the plaintiffs and defendant No. 8.
5. The defendants Nos. 2 and 3 mortgaged their interests under the lease to the defendant No. 1.
6. In 1893 defendant No. I brought a suit upon the mortgage against the defendants Nos. 2 and 3 and obtained a decree.
7. On the 21st July 1897 the property was sold under the lease to defendant No. 1.
8. On the 29th November of 1897 the sale was confirmed.
9. On the 23rd November 1898 possession, was given to defendant No. 1.
10. On 20th March 1908 this suit was instituted.
11. It is common ground that the defendants Nos. 2 and 3 have given up possession of the land except the portion on which the dwelling-house stands, and this they now hold as tenants under the defendant No. 1. Their leasehold was publicly sold and they accepted the sale as valid and they have not appealed against the decision of the lower Courts.
12. The learned Judge in this Court has held that there was an implied surrenderor abandonment and I think there were admitted facts in the case on which he could come to that conclusion. The lease contained the following words: We shall not be competent to make any manner of transfer as sale, gift etc.; and to mortgage, etc., to any one; the land of the mitaskarsa but only to hold and enjoy the same, nor can the same be sold for our debts. If the same be transferred or sold by auction or if we or our heirs do not dwell in the said bari, the land constituting the miras karsa shall come into your khas possession.'
13. The lower Courts held that by reason of this provision in the lease defendant No. 1 obtained no title by his purchase and consequently the plaintiff could recover khas. possession of the property.
14. The first point urged in this appeal was that the defendant No. 1 was in the position of a tenant and could rely upon Section 155 of the Bengal Tenancy Act, that the lease was only voidable and that until the plaintiff had taken the steps provided; by the said section, defendant No. 1 could not be regarded as a trespasser.
15. In my judgment, defendants Nos. 2 and 3 had no interest which they could convey to defendant No. 1 which he must have ascertained on reference to the terms of the lease, and that in the absence of any act done by the plaintiffs, which could be said to be a recognition of the transferee, the defendant No. 1 was in no better position than a trespasser.
16. Defendant No. 1, therefore, cannot rely on Section 155 of the Bengal Tenancy Act, which is not applicable to one in his position. [See Buddhimanta Paramanik v.Sarat Chandra Banerjee 6 Ind. Cas. 147 : 13 C.L.J. 672.] It was then urged that the suit was barred by limitation and reliance was placed upon Sections 184 and 185 and Schedule III (1) of the Bengal Tenancy Act, and Section 28 of the Limitation Act, 1908. I do not think that the Bengal Tenancy Act applies to the case of defendant No. 1, for the reason, already mentioned, that he was not a tenant within the meaning of that Act. The sale of the property to the defendant No. 1 was on July 24, 1897, and possession was given to him on the 23rd November 1898, and the action to recover the possession of the lands was brought on the 20th March 1908, and was, therefore, within the twelve years specified in the Indian Limitation Act. Consequently, in my judgment, the suit was not barred by the Limitation Act.
17. It was next argued that the plaintiffs being merely co-sharer landlords could not determine the lease. This question, in my judgment, does not arise as between the plaintiffs and the defendant No. 1, who, as above stated, must be treated as a trespasser.
18. It was then urged that plaintiffs could not sue in ejectment without joining the defendant No. 8 as plaintiff but the defendant No. 1 being no more than an intruder, the plaintiffs were entitled to the decree for khas possession of the 12-annas share jointly with this defendant. [See Radha Proshad Wasti v. Esuf 7 C. 414 : 9 C.L.R. 76.
19. The covenant in question contained - a provision for re-entry and, therefore, may be said to have been for the benefit of the lessor and those claiming under him, and inasmuch as the execution sale was directly due to voluntary acts of the lessees, viz., the execution of the mortgage and omission to pay the mortgage-debt, the assignment cannot be said to be ad-invitum.
20. Finally, it was argued that mesne profits had been allowed from the 23rd of November 1898, the date of the dispossession. The learned Vakil for the respondents agreed that this part of the decree should be modified and the mesne profits should be limited to three years. Subject to such modification, in my judgment, the decree should stand and the appeal be dismissed with costs.
21. This is an appeal, under Clause 15 of the Letters Patent, from a judgment of Mr. Justice Chapman, who in concurrence with the Courts below has decreed the claim of the plaintiffs-respondents. The disputed land constituted the permanent tenure of the second and third defendants under a lease granted by the landlords on the 29th November 1886. The lease contained a covenant that the tenants would not be competent to make any manner of transfer such as sale, gift, mortgage, etc., but would only hold and enjoy the land which could not also be sold for their debts. The lease further provided that if the land was transferred or sold by auction, it would come into the khas possession of the landlords. The tenants, in contravention of this covenant, executed a mortgage in favour of the appellant; whether the landlords ever become aware of this transaction or not has not been investigated; but we know this much that in 1893 the mortgagee obtained a decree, and, in execution thereof, himself purchased the property on the 24th July 1897. The sale was confirmed on the 29th November 1897, and the execution Court delivered possession to the decree-holder purchaser on the 23rd November 1898. It appears that the second and third defendants (whose possession was thus terminated), as also some of the other defendants, subsequently came into possession of portions of the land under sub-leases granted by the first defendant. On the 20th March 1908 the plaintiffs commenced this suit for ejectment of the defendants as trespassers. They claimed this relief in respect of the whole land but have been awarded relief in respect of a three-fourths share, as they hold that share only in the superior interest. The owners of the remaining one-fourth share were added as pro forma defendants. The Court of first instance decreed the suit, and that decree has been affirmed successively by the Subordinate Judge and by Mr. Justice Chapman. On the present appeal by the first defendant, the decision of the Courts below has been assailed substantially on five grounds, namely, first, that the covenant for forfeiture of the lease upon an involuntary sale was bad in law; secondly, that if the covenant was valid, the landlords were bound to follow the procedure prescribed in Section 155, Bengal Tenancy Act; thirdly, that the suit was barred by limitation under Article 1 of Schedule III of the Bengal Tenancy Act; fourthly, that a decree for ejectment cannot be made in a suit instituted by a fractional landlord; and fifthly, that the decree should have specified that the plaintiffs are entitled to mesne profits, not from the date of dispossession as claimed in the plaint, but only for three years antecedent to the suit.
22. As regards the first point, it is plain that, as pointed out by the Judicial Committee in Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 I.A. 148 at p. 167 : 14 C.W.N. 1 : 11 Bom. L.R. 1234 : 6 A.L.J. 857 : 19 M.L.J. 530 : 10 C.L.J. 284 : 36 C. 1003, a lease in perpetuity is for feitable for breach of covenant, notwithstanding that it is permanent. It is equally plain that a covenant for re-entry by the landlord upon an involuntary sale is valid under the law of England. This is conclusively established by the decisions in R. v. Topping (1825) Mc. & Yo. 544 : 29 E.R. 839 and Davis v. Eyton (1830) 7 Bing. 154 : 83 R.R. 408 : 4 Moo. & P. 820 : 9 L.J. (o.s.) C.P. 44 : 131 E.R. 60. In the latter case Tindal, C.J., observed, with reference to a covenant of this description, that the estate of the lessee was certain at first, but liable to be defeated by a condition which he allowed to be inserted in the contract in which was a lawful condition; it was sufficient that the condition was broken, to see that the landlord entered on his title paramount and took the property then as he had it originally [see also Roe v. Galliers (1787) 2 T.R. 133 : 1 R.R. 445 : 100 E.R. 72, Doe v. Hawhe (1802) 2 East 481 : 102 E.R. 453, Cooper v. Wyatt (1821) 5 Madd. 482 : 21 R.R. 336 : 56 E.R. 980, Yarnold v. Moorhouse (1830) 1 Rus. & My. 364 : 39 E.R. 141 : 32 R.R. 223]. We have also the high opinion of Sir Charles Sargent, C.J., in Vyankatraya v. Shivrambhat 7 B. 256 that the same rule is applicable in India, although Section 12 of the Transfer of Property Act expressly mentions the case of forfeiture for bankruptcy and does not specifically refer to the case of forfeiture for involuntary alienation [Mahananda Roy v. Sarat Moni Debi 10 Ind. Cas. 374 : 14 C.L.J. 585]. It may also be observed that, as explained in the case of Ram Pershad Koeri v. Jawahir Roy 12 C.W.N. 899 at p. 904 : 7 C.L.J. 72 in connection with a question of abandonment by a tenant, an involuntary alienation may in one sense be attributed to a remote act of the party quite as much as a voluntary alienation [Doe v. Garter (1798) 8 T.R. 57 : 101 E.R. 1264 : 4 R.R. 586, Doe v. Cartar (1799) 8 T.R. 300 : 101 E.R. 1400 : 4 R.R. 586 : see also the judgment of Lord Campbell, C.J., in Craft v. Lumhy (1855) 5 El. & BI. 648 at p. 679 : 103 R.R. 663 at p. 681 : 119 E.R. 622 : 25 L.J.Q.B. 73 : 3 Jur. (N.S.) 62 : 4 W.R. 94 : 26 L.T. (o.s.) 123 as also the contrary opinion of Baron Alderson in the Exchequer Chamber and of Lord Wemsleydale in the House of Lords : Croft v. Lumley (1858) 6 H.L.C. 672 at p. 742 : 108 R.R. 252 at p. 289 : 27 L.J.Q.B. 321 : 4 Jur. (N.S.) 903 : 6 W.R. 523 : 10 E.R. 1459]; this analogy, however, does not justifiy the view that a covenant for forfeiture for voluntary alienation includes by implication a covenant for forfeiture for involnutary alienation. I hold accordingly that the covenant in question is valid and operative in law.
23. As regards the second ground it is plain that Section 155 of the Bengal Tenancy Act, which prescribes the mode whereby relief may be granted against forfeiture, is applicable only to a suit for the ejectment of a tenant who has forfeited his tenancy by breach of a covenant. The first defendant, who has contested the claim of the plaintiffs, obviously cannot take shelter under Section 155, unless he can establish that he is a tenant, that is, that he has acquired by his purchase the tenancy originally held by the second and third defendants. This raises the question of the effect of the execution sale, in other words, did the tenancy pass by the sale to the purchaser and is now liable to be annulled by the plaintiffs, or, has it been forfeited by reason of the very act of the sale. For the correct solution of this question, it is necessary to bear in mind the fundamental distinction between two classes of cases, which has been recognised in a long line of decisions [Nil Madhab Sikdar v. Narattam Sikdar 17 C. 826, Golak Nath Roy Chowdhry v. Mathura Nath Roy Chowdhry 20 C. 273, Vyanhatraya v. Shivrambhat 7 B. 256, Tamaya v. Timopa Ganpaya 7 B. 262, Diwali v. Apaji Ganesh 10 B. 342, Madar Saheb v. Sannabawa 21 B. 195, Basarat Ali Khan v. Manirulla 2 Ind. Cas. 416 : 36 C. 745 : 10 C.L.J. 49, Kesav Lal Nag Mozumdar v. Harasit Ghose 6 Ind. Cas. 685 : 12 C.L.J. 126, In Re: West Hopetown Tea Company, Intuited 12 A. 192 : A.W.N. (1890) 71, Netrapal Singh v. Kalyan Das 28 A. 400 : A.W.N. (1906) 60 : 3 A.L.J. 196, Parmeshri v. Vittappa Shanbaga 26 M. 157 : 12 M.L.J. 189, Keshob Lal Nag Mazamdar v. Jnanendra Nath Ghose 24 Ind. Cas. 538 : 20 C.L.J. 332, Doe v. Carter (1798) 8 T.R. 57 : 101 E.R. 1264 : 4 R.R. 586, Croft v. Lumley (1858) 6 H.L.C. 672 at p. 742 : 108 R.R. 252 at p. 289 : 27 L.J.Q.B. 321 : 4 Jur. (N.S.) 903 : 6 W.R. 523 : 10 E.R. 1459], namely, cases where there is a covenant in the lease against alienation, but no right of re-entry reserved in the landlord; and oases where there is a covenant in the lease against alienation coupled with a clause for re-entry. In the first class of cases, the lease is not forfeited by breach of covenant [ Doe v. Godwin (1815) 16 R.R. 463 : 4 M. & S. 265 : 105 E.R. 833] and the remedy of the landlord is either by way of injunction against an apprehended breach [BibiSahodra v. Rai Jang Bahadur 8 I.A. 210 : 8 C. 224 : 4 Sar. P.C.J. 294 : 6 Ind. Jur. 108, Governors of Bridewell Hospital v. Fawkner (1892) 8 T.L.R. 637, McEacharn v. Colton (1902) A.C. 104 : 71 L.J.P.C. 20] or by recovery of damages for a breach already committed [Williams v. Earle (1868) 3 Q.B. 739 : 9 B. & S. 740 : 37 L.J.Q.B. 231 : 19 L.T. 238 : 16 W.R. 1041, Paul v. Nurse (1828) 8 B. & C. 486 : 2 M. & Ry. 525 : 7 L.J. (o.s.) K.B. 12 : 108 E.R. 1123 : 32 R.R. 456, Weatherall v. Geeritig (1860) 12 Ves. Jun. 504 : 8 R.R. 369 : 33 E.R. 191, Basarat Ali Khan v. Manirulla 2 Ind. Cas. 416 : 36 C. 745 : 10 C.L.J. 49]. In the second class of cases, where the lease reserves a right of re-entry, the landlord is not limited to the reliefs by injunction or damages, but may, at his choice, treat the lease as forfeited and exercise his right of re-entry; as was said by Maule, J., in Blyth v. Dennett (1853) 13 C.B. 178 at. p. 180 : 22 L.J.C.P. 72 : 138 E.R. 1165 : 93 R.R. 480, the lease becomes not void but voidable, and only the lessor and not the lessee at default can treat the term as at an end [ Bo1wser v. Colby (1841) 1 Hare 109 : 11 L.I.Ch. 132 : 5 Jur. 1106 : 66 E.R. 969, Davenport v. Reg. (1877) 3 A.C. 115 at p. 128 : 27 L.J.P.C. 8 : 37 L.T. 727, Doe v. Bancks (1821) 4 B. & Ald. 401 at p. 406 : Gow. M.P. 220 : 23 R.R. 318 : 106 E.R. 984, Roe v. Galliers (1787) 2 T.R. 133 : 1 R.R. 445 : 100 E.R. 72, Church v. Browne (1808) 15 Ves. 258 : 10 R.R. 74 : 33 E.R. 752, Fryer v. Ewart (1902) A.C. 187 : 71 L.J. Ch. 433 : 86 L.T. 242 : 18 T.L.R. 426 : 9 Manson 281]; the election by the lessor may be made by express words or by acts [Roberts v. Davey 4 B. & Adolp. 664 : 1 N. & M. 413 : 2 L.J.K.B. 141 : 110 E.R. 606 : 38 R.R. 348., James v. Young (1884) 27 Ch. D. 652 at p. 662 : 53 L.J.Ch. 793 : 51 L.T. 75 : 32 W.R. 981]; when, however, the landlord indicates his election to take advantage of the forfeiture, the forfeiture takes effect from the moment of breach, namely, from the date of the a ien-ation. We cannot hold that the tenancy continues even after the alienation, because such an assumption is contrary to the very condition of the contract itself, that on the alienation the landlord is entitled to re-enter. Section 111 of the Transfer of Property Act admittedly does not govern the case before us, as the tenancy was of agricultural land (section 117, Transfer of Property Act), and consequently the principle recognised in Anandamoyee v. Lakhi Chandra Mitra 33 C. 339 : C.L.J. 274 and Venkatramana Bhatta v. Gundaraya 31 M. 403 : 4 M.L.T. 221, that the landlord must prior to the institution of the suit for ejectment have manifested his intention to avail himself of the forfeiture, has no application. As pointed out by Krishna-swamy Iyer, J., in Padmanabaya v. Ranga 6 Ind. Cas. 447 : 34 M. 161 at p. 164 : 8 M.L.T. 110 : (1910) M.W.N. 462 : 20 M.L.J. 930 and by Sadasiva Aiyar, J., in Korapaiu v. Narayana 20 Ind. Cas. 980 : 25 M.L.J. 315 : (1913) M.W.N. 655 : 38 M. 445, in this class of cases where section III of the Transfer of Property Act does not apply the forfeiture is complete when the breach of the condition occurs. Consequently, the election is not a condition precedent to the right of action, but the institution of the suit itself is a sufficient manifestation of the exercise of the option of the lessor to treat the lease as determined. The technicalities which at one time hedged in the English law on the subject are well illustrated by the cases of Goodrightd Hare v. Carlo (1780) 2 Douglas 477 : 99 E.R. 304, Jones v. Carter (1846) 15 M. & W. 718 : 71 R.R. 800 : 153 E.R. 1040, Grimwood v. Moss (1872) 7 C.P. 360 : 41 : L.J.C.P. 239 : 27 L.T. 268 : 20 W.R. 972, Clough v. London N.W. Railway Co. (1871) 7 Ex. 26 at p. 34 : 41 L.J. Ex. 17 : 25 L.T. 708 : 20 W.R. 189, Evans v. Davis (1879) 10 Ch. D. 747 at p. 763 : 48 L.J.Ch. 223 : 39 L.T. 391 : 27 W.R. 285., Serjeant v. Nash, Field & Co. (1903) 2 K.B. 304 : 72 L.J.K.B. 630 : 89 L.T. 1 2 : 19 T.L.R. 510 and they need not be needlessly introduced here. In the case before us, it is, in my opinion, plain that no title passed to the first defendant by the execution sale, the landlord has not waived the forfeiture by receipt of rent or otherwise, and the forfeiture must be held to have taken effect from the date of sale. The first defendant thus cannot take advantage of Section 155 of the Bengal Tenancy Act, as he is not a tenant but a trespasser. The original tenants are quite content with the decree for ejectment and do not claim to be relieved against forfeiture [ Buddhimanta Pramanik v. Sarat Chandra Banerjee 6 Ind. Cas. 147 : 13 C.L.J. 672]. If they are now in occupation of any portion of the land, they do not claim to do so as tenants under the plaintiffs; they have repudiated the tenancy under the plaintiffs and have attorned to the appellant; their title, if any, must now fall with that of their new lessor [Kallinath Chakravarti v. Upendra Chunder Chowdhry 24 C. 212 : 1 C.W.N. 163]. As Mellish, L. J., said in Great Western Railway Co. v. Smith 2 (1876) 2 Ch. D. 235 at p. 253 : 45 L.J. Ch. 235 : 34 L. T. 267 : 24 W.R. 443), affirmed in Smith v. Great Western Railway Co. (1877) 3 A.C. 165 : 47 L.J. Ch. 97 : 37 L.T. 645 : 26 W.R. 130, it is rule of law that if there is a lessee and he has created an under-lease or any other legal interest if the lease is forfeited, then the under-lessee or the person who claims under the lessee, loses his estate as well as the lessee himself, but if the lessee surrenders he cannot, by his own voluntary act in surrendering, prejudice the estate of the under-lessee or the person who claims under him. In my opinion the second ground is entirely untenable and the defendants are liable to be ejected as trespassers.
24. As regards the third ground, reliance is placed upon Schedule III, Article 1, of the Bengal Tenancy Act which provides that a suit to eject a tenure-holder or ryot, on account of a breach of condition in respect of which there is a contract expressly providing that ejectment shall be the penalty of such breach, must be instituted within one year from the date of the breach. This argu-menb must be overruled on the same grounds as the second contention. The suit is for the ejectment of a trespasser and of persons deriving title from him, and is consequently governed by Article 142 of the Schedule to the Limitation Act. The third contention accordingly fails.
25. As regards the fourth ground, it is obvious that as the first defendant and those that claim title under him are in the position of trespassers, the plaintiffs are entitled to recover possession of the disputed land in respect of their own share; Section 188 of the Bengal Tenancy Act has no application nor do any equitable considerations come into play, such as might possibly have operated [Watson and Company v. Ram Chund Dutt 18 C. 10 : 17 I.A. 110, Hossein Mohamed v. Fakir Mohamed 4 Ind. Cas. 740 : 10 C.L.J. 618] if a co-sharer landlord had sought to eject a tenant brought upon joint undivided land by another co-sharer [Radha Proshad Wasti v. Esuf 7 C. 414 : 9 C.L.R. 76, Dilbar Sardar v. Hosein Ali Bepari 26 C. 553, Bhikharee Ram Mohonri v. Dhakeswar Pershad Narain Singh 7 C.L.J. 483 : C. 807]. The fourth ground consequently fails.
26. As regards the fifth ground, it is not disputed by the plaintiffs that the mesne profits must be limited to 3 years antecedent to the suit and could not be claimed for the entire period between the date of dispossession (23rd November 1898) and the recovery of possession under the decree in this suit. The decree must be amended in this respect.
27. The result follows that subject to variation in respect of mesne profits the decree under appeal will stand affirmed with costs.