PADMANABHAYA Vs. RANGA

JUDGEMENT

(1.) The suit is in ejectment. The defendants are permanent lessees. They denied the title of the landlord, the plaintiff, by a notice dated the 28 August 1905, before the institution of this suit. The District Judge held that the terms of this letter did net create a forfeiture. He was also of opinion that the lessor had done no act to show his intension to determine the lease and further that the forfeiture had been waived by the lessor suing or the rent subsequent to the date of the forfeiture.

(2.) Dealing with the last question first, we observe that the prayer was for past and future profits and not for rent, though the rent previously fixed appears to have been taken as the measure of the annul profits. But apart from this, if the forfeiture had been incurred, we fail to see how the suit for rent could operate as a waiver. If Section 112 of the Transfer of Property Act applied, the suit in ejectment having been instituted, the second proviso to that section would prevent waiver even from acceptance of the rent. But the lease having been executed long before the Transfer of Property Act, the question is whether under the law in force before that Act, that claim for rent in the action for ejectment could operate as a waiver. We are not aware of any authority for holding, where the lease had determined by the plaintiff's election to treat the lease as at an end, that the claim for rent prosecuted along with a prayer for ejectment could negative the plaintiff's title to seek ejectment.

(3.) Exhibit G G. is the defendant's reply to the plaintiff's notice. It says:-" I do not enjoy any property under you. I am not liable to pay any rent whatever to you. I have never till now paid you any rent whatsoever." This certainly amounts to a claim of title in the defendants and would, therefore, work a forfeiture. In our opinion, it is not necessary that the denial of the landlord's title should be accompanied by an assertion in terms of the title of the defendant. If the landlord's title be denied, it involves the assertion that the title is either in the . defendant or some third person.