Asutosh Mookerjee, J.
1. This is an appeal by the defendant in an action in ejectment. On the 16th January 1904, the defendant took a lease of homestead land from the plaintiff, at a rent of Rs. 35 per month, for a term of 10 years. The lease provided that the rent for each month would be paid on the last day of the previous month, and default was made in respect of rent for three successive months the tenancy would be forfeited. It is not disputed that the rent payable on the 13th April, 14th May, 14th June and 16th July 1906 was not duly paid. On the 19th July 1906, the defendant paid Rs. 70 as the rent of the two instalments due on the 13th April and 14th May and took a receipt therefor. Default was thereafter made in respect of the rent due on the 16th August 1906. The result was that this suit was instituted on the 31st August 1906 for ejectment of the defendant, on the ground that the tenancy had been forfeited by reason of default in payment of the three successive instalments of rent due respectively on the 14th June, 16th July and 16th August 1906. The defendant pleaded that acceptance of rent on the 19th July 1906 operated as a waiver of the then existing forfeiture, and that consequently the suit is premature. This contention has been negatived by the Courts below and the suit has been decreed. On the present appeal the view unsuccessfully urged in the Courts below has been reiterated by the defendants In our opinion, there is no foundation for the contention that the suit is premature.
2. Section 112 of the Transfer of Property Act, which is applicable to this case, provides that a forfeiture under Clause (g) of Section 111 is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the part of the lessor showing an intention to treat the lease as subsisting, provided that the lessor is aware that the forfeiture has been incurred and provided also that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. This provision is of no assistance to the defendant, because the rent accepted by the plaintiff had become due, not since but before forfeiture.
3. The appellant has urged that the legal effect of the acceptance of rent on the 19th July 1906 was to condone the default which had happened prior to that date, There are two obvious answers to this ingenious argument.
4. In the first place, as pointed out by Lord Tenterden, C.J., in Arnsby v. Woodward (1827) 6 B. & C. 519: 9 D. & R. 536 : 5 L.J. (O.S.) K.B. 199 : 108 E.R. 542, a receipt of rent is an admission that the lease was subsisting at the time when that rent became due. This accords with the principle recognised by Lord Mansfield, C.J., in the earlier decision in Goodright d Walter v. Davids (1778) 2 Cowper 803: 98 E.R. 1371, where it was ruled that an acceptance of rent to operate as a waiver of forfeiture must be in respect of rent which had accrued since the breach of the covenant which resulted in the forfeiture. The doctrine was applied subsequently in the cases of Doe d. Griffith v. Pritchand (1833) 5 B & Ad. 765 : 2 N. & M. 489 : 3 L.J.K.B. 11 : 110 E.R. 973 : 39 R.R. 628, Doe d. Gatehoure v. Rees (1838) 4 Bing (N.C.) 384 : 6 Scott. 161 : 1 Arn. 159: 7 L J.C.P. 184. 132 E.R. 835, Price v. Worwood (1859). 4 H. & N. 512 : 118 R.R. 581 : 28 L.J. Ex. 329 : 5 Jur (N.S.) 47 : 7 W.R. 506, Pellatt v. Boosey (1862) 3 L.J.C.P. 281 : 8 Jur. (N.S.) 1107, Miles v. Tobin (1867) 17 L.T. 432: 96 W. R 465, Griffin v. Tomkins (1880) 42 L.T. 359 : 44 J.P. 457, Bowser v. Colby (1841) 1 Hare. 109 : 11 L.J. Ch. 132 : 5 Jur. 1106 : 66 E.R. 969, Walrond v. Hawkins (1875) 10 C.P. 342; at p. 350 : 44 L.J.C.P. 116 : 32 L.T. 119 : 23 W.R. 390, Clifford v. Reilly (1870) 4 Ir. Com. I.R. 218 and Dendy v. Nicholl (1858) 4 C.B. (N.S.) 37 : 27 L.J.C.P. 220 : 6 W.R. 50 : 140 E.R. 11 : 0 : 114 R.R. 773. The principle is emphasised in the case of Ward v. Day (1863) 4 B. & S. 337: 136 R. R 582 : 122 E.R. 486 : 33 L.J.Q.B. 3 : 10 Jur. (N.S.) 173 : 11 W.R. 948, affirmed in appeal in Ward v. Day (1864) 5 B. & S. 359 : 136 R.R. 598 : 33 L.J.Q.B. 254 : 10 L.J. 578 : 12 W.R. 829 : 122 E.R. 865 where attention was drawn to the distinction in principle between waiver by distress and waiver by receipt of rent. Waiver by receipt of rent only applies to rent accruing subsequent to the forfeiture, there is no inconsistency in a man who has given notice to determine the tenancy receiving rent due before the supposed determination of it, and consequently there is no waiver by receiving that rent, as was expressly determined in Green's case (1582) Cro. E. 3 : 78 E.R. 269. Waiver by distress, on the other hand, depends upon a different principle, namely, that at common law distress for rent can only be made during the existence of the tenancy. Whether in view of the provisions of Section 112 of the Transfer of Property Act, waiver' by distress in this country stands on a different footing from waiver by receipt of rent need not be considered for our present purpose. But it is plain that in so far as waiver by receipt of rent is concerned, it applies only to rent accruing subsequent to the forfeiture.
5. If this principle is applied to the case before us, what is the position of the defendant? Default in payment of rent on the 13th April and 14th May 1906 did not affect his position as a tenant. The subsequent default on the 14th July 1906 operated as forfeiture of the tenancy, and he was liable to be ejected by the landlord with effect from the day following, the non-payment of rent on the 16th July 1906 could not make the position of the defendant worse; in fact, if the tenancy be deemed to have been forfeited on the 14th June, no further rent would be payable by him. What, then, was the effect when on the 19th July 1906, the landlord accepted rent due on account of the instalments of the 13th April and 14th May? Can it be maintained that he thereby took up a position inconsistent with that adopted by him for the purposes of this suit? Acceptance of rent on account of these two instalments implied, on the principle explained by Lord Tenterden, C.J., in Arnsby v. Woodward. (.), that the defendant was his tenant on the dates on which the rent had accrued, that is, on the 13th April and 14th May 1906. The defendant was, in fact and in law, tenant of the plaintiff on those dates. It is plain, therefore, that from this point of view there was no waiver of forfeiture by the acceptance of rent.
6. In the second, place, the inference that there was no waiver of forfeiture by acceptance of rent, is strengthened when we remember that the default, which operated as forfeiture for the purposes of the present suit, did not take place till the 16th August 1906. It was only after default had been made on the date last mentioned that the plaintiff was in this position of advantage that he had, as against the defendant, three successive defaults, made on the 14th June, 16th July and 16th August 1906. These successive defaults entitled the plaintiff to treat the tenancy as forfeited and to institute a suit for ejectment of the defendant as he did on the 31st August 1906. But reference has been made to the decision of this Court in Dulli Chand v. Meher Chand 8 W.R. 138, which was affirmed on appeal to the Judicial Committee, Duli Chand v. Meher Chand 12 B.L.R. 439 (P.C.) 3 Sar. P.C.J. 215, to show that the view we take is not consistent with that adopted therein. The question raised before us did not, however, arise, for consideration before the Judicial Committee; In that case, there had been a default in payment of rent of six successive instalments. This led to forfeiture which was waived. Subsequently, there was default in payment of rent of many successive install merits which entitled the landlord to maintain a suit for ejectment irrespective of the previous defaults. We are consequently of opinion that the view taken by the Courts below is correct.
7. It has been finally argued as a last resort that the entry in the receipt granted by the landlord to the defendant on the 19th July 1906, wherein the defendant is described as his tenant, shows that he was treated as such on the date when the payment was made and as there has not been forfeiture since that date by reason of three successive defaults, the suit is premature. In support of this view, reliance has been placed upon Green's case (1582) Cro. E. 3 : 78 E.R. 269. It is plain, however, that the receipt cannot reasonably be construed in the manner suggested by the defendant.
8. The plaintiff must be taken to have described the defendant as his tenant in respect of the period for which the rent was paid; the question of the position of the defendant at the time when rent was paid and accepted was not in the mind of either party.
9. Finally, it has been contended that relief against forfeiture should be granted to the defendant under Section 114 of the Transfer of Property Act, and in support of this view reliance has been placed upon the decisions in Megh Lal Pandey v. Raj Kumar Thakur Girdhan Singh 5 C.L.J. 208 : 34 C. 358 : 11 C.W.N. 527, Duli Chand v. Meher Chand 12 B.L.R. 439 (P.C.) 3 Sar. P.C.J. 215, Kumla Sahoy v. Ram Ruttun Neogy 11 W.R. 201, Mahomed Ameer v. Peryag Singh 7 C. 566 : 9 C.L.R. 185', Mothooramohun Pal v. Ram Lall Bose 4 C.L.R. 469 Vaguran v. Rangayyangar 15 M. 125, Kottal Uppi v. Edavalath Thathan Nambudiri 6 M.H.C.R. 258 and Naraina Naika v. Vasudeva Bhatta 28 M. 389 : 15 M.L.J. 208. This equitable doctrine of relief against forfeiture, which, will be found explained in the case of Bowser v. Colby (1841) 1 Hare. 109 : 11 L.J. Ch. 132 : 5 Jur. 1106 : 66 E.R. 969, has no application to the circumstances of the present case. The defendant did not express a desire to avail himself of the benefit of this doctrine at any stage of this litigation in either of the Courts below, nor has the point been mentioned in the memorandum of appeal presented to this Court. But we would add that even if the defendant had complied with all the requirements of Section 114, which he has not done, we' would not feel disposed to exercise our discretion in his favour in view of all the circumstances of this case, which indicate that he has success fully kept possession of this land for many years without even offer of payment of rent to his landlord.
10. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.