NAMDEO LOKMAN LODHI Vs. NARMADABAI KESHOODEO

JUDGEMENT

(1.) THIS is an appeal from a judgment of the learned Judge, Small Cause Court of Poona, exercising appellate powers, confirming a decree for ejectment passed by the learned Extra Joint Subordinate Judge at Poona. The ejectment was sought by the landlord on the ground of non-payment of rent, and the main point that has been urged before us by Mr. Abhyankar and Mr. Kotwal is that inasmuch as no notice was given by the landlord determining the lease on the ground of non-payment of rent, there was no forfeiture and there was no right on the part of the landlord to re-enter the demised premises.

(2.) NOW, the law with regard to forfeiture is contained in Section 111 (if) of the Transfer of Property Act, and a forfeiture results and a lease is determined in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and prior to the amendment of this sub-section by Act XX of 1929 this sub-section further provided "and in any of these cases the lessor or his transferee does some act showing his intention to determine the lease. " By Act XX of 1929 this sub-section was amended and the amended sub-section now reads" and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease," Therefore, as the law stands today, a notice given by the landlord is a condition precedent to forfeiture and the right of re-entry. But Act XX of 1929, by Section 63, restricted the operation of this amendment and the restriction was that this amendment was not to affect the terms or incidents of any transfer of property made or effected before April 1, 1980. NOW, when we turn to the lease in this case, which was executed before the Transfer of Property Act came into force in 1882, one of the terms of that lease was that the landlord was given the right to re-enter on the tenant failing to pay the rent agreed upon. Therefore, it is clear that if this amendment was to be made applicable to the lease which was entered into long prior to April 1, 1980, it would undoubtedly affect the terms and incidents of the contract between the landlord and the tenant, because by the amendment the right of the landlord would be considerably curtailed. Instead of being able to re-enter as soon as there was a default in payment of rent, he could only re-enter provided he gave a notice expressing his intention to determine the lease, and, therefore, in our opinion it is clear that Section 113 of Act XX of 1929 does not make the amendment retrospective and restricts its operation to transactions that took place after April 1, 1930.

(3.) OUR attention has also been drawn to a judgment of a Divisional Court consisting of myself and my brother Shah where we applied the principle of giving notice in case of forfeiture resulting from a disclaimer of title to a case to which the Transfer of Property Act did not apply, and we applied it on the grounds of justice, equity and good conscience, and Mr. Abhyankar argues that if we did that in that case there is no reason why we should not do the same in the case of forfeiture on the ground of non-payment of rent. Now, the distinction between that case and this is obvious. As I have already pointed out the English Law of Property Act of 1925 did introduce a provision with regard to notice in the case of forfeiture for disclaimer of title j it did not do so in the case of non-payment of rent, and therefore if in that case we applied the principle of the amendment as far as forfeiture for disclaimer of title was concerned, we were applying a principle which the English Legislature had also accepted as a proper principle and it was possible to say that that was based on principles of justice, equity and good conscience. But when we now have to consider the question of notice in a case of non-payment of rent and when we are faced with this position that the law in England is that a forfeiture results without a notice being given, we cannot possibly extend the decision which we have given to apply to a case which is not covered by the amendment passed in England by the Law of Property Act of 1925. Therefore, in our opinion the decision of the Divisional Bench is clearly distinguishable and it does not bind us, nor does it compel us to extend the principle of that decision.