RAMAKRISHNA MALLYA Vs. BABURAYA ALIAS VENKATESHA HEGADE

JUDGEMENT

(1.) We agree with the Court below that on the true construction of the lease (Exhibit A) the sub-lease by the first defendant s father did not work a forfeiture. The lower- Appellate Court, in holding that, assuming there was a forfeiture by reason of non-payment of rent, it could not be enforced as the plaintiff had not done any act to show that he intended to avail himself of the forfeiture, would seem to have followed the decision of this Court in Venkatramana Bhatta v. Gundaraya 31 M 403 : 4 M.L.T. 221. In that case,. However, it was not brought to the notice of the Court that the lease in question was prior to the coming into operation of the Transfer of Property Act. The lease in the present case was made in 1871 before the Transfer of Property Act came into operation and this being so, according to the decision in Padmanabaya v. Ranga 6 Ind. Cas. 447 : 34 M. 161 : (1910) M.W.N. 462 : 20 M.L.J. 930 : 8 M.L.T. 110., an act on the part of the landlord showing he elects to take advantage of the forfeiture is not a condition precedent to his right to sue in ejectment. There is no finding by the lower Appellate Court as to whether, on the construction of the lease, non-payment of rent operated as a forfeiture. We accordingly send back the case to the lower Appellate Court for a finding on this question and also, if the Court holds there has been a forfeiture by reason of the nonpayment of rent, for a finding as to the terms, if any, on which the defendant is entitled to be relieved against the forfeiture. The findings should be submitted within one month after the re-opening of the Sub-Court, and seven days will be allowed for filing objections. In compliance with the order contained in the above judgment, the Subordinate Judge of South Canara submitted the following FINDINGS.--The two issues on which this Court has been directed to submit its findings are (1) : Whether on the construction of the lease non-payment of rent operated as a forfeiture? (2) If there has been a forfeiture by reason of the non- payment of rent, whether the defendant is entitled to be relieved against it on any and what terms? The stipulation in question in the suit lease A is to this effect : I have no cause whatever either....or to keep the rent in arrears. In case, any small portion of the aforesaid rent is kept in arrears or in case ...I shall deliver back the said land etc., and all to you without demanding from you the value of the improvements made by me." As observed in Subbaraya Kamti v. Krishna Kamti 6 M. 159, from the circumstance that the stipulation in question is that, if any portion of the rent should fall into arrears, the property should be surrendered with all right to improvements, (i.e.) without claiming the value of improvements, it might be reasonably inferred that such provision was made in order that it might operate as a fear in the mind of the lessee that the rent should be regularly paid and the parties did not seriously intend that it should be acted upon. In a word, this stipulation was inserted in terrorem [see also Kottal Uppi v. Edavalathi Thathan Nambudiri 6 M.H. C.R. 2587.]

(2.) Further, there is this important fact that the lease does not provide for any period of grace in respect of the payment of arrears of rent. It has been settled beyond any doubt or controversy that, when such is the case, the forfeiture arising from non-payment of rent will be one that can be relieved against [Vide Mahalakshmi Amma v. Lakshmi 12 Ind. Cas. 456 : 21 M.L.J. 900 : (1911) 2 M.W.N. 385., Narayna Naicker v. Vasudeva Bhatta 28 M. 389 : 15 M.L.J. 208., Narayana Kamti v. Handu Shetty 15 M.L.J. 210. and Aditaya Shetty v. Billa Tyampu 6 Ind. Cas. 438 : 20 M.L.J. 944 : 8 M.L.T. 108 : (1910) M.W.N. 419.] Having regard to the intention of the parties, which can be gathered and reasonably inferred from the insertion of such stipulation as the one in question, and also to the circumstance that the lease provides for no period of grace, I should hold that the forfeiture under consideration is one that can be relieved against. The defendants are entitled to have such equitable relief granted to them.

(3.) Before the defendants can claim such equity, they must be prepared to do equity. It will be incumbent upon them to pay up the arrears of rent due by them. The 2nd defendant pleaded discharge. The 2nd issue, in the case was, whether the payments of rent and thirva pleaded are true." There was no evidence to prove that issue and it was found in the negative. The rent claimed by the plaintiff is due to him. The defendants not only failed to tender it in Court but also set up a false plea of discharge. The plaintiff will be entitled to get the arrears of rent due to him and that with interest. Having regard to the fact that there was no tender on the part of the, defendant even after the suit was brought but he, on the other hand, falsely pleaded payment, it will not be unreasonable or inequitable to allow plaintiff interest at the rate of 12 per cent. per annum. Plaintiff will also be entitled to get his , full Costs of the suit including the costs on the claim for recovery of possession of the suit property [vide Subbaraya Kamti v. Krishna Kamti. 6 M. 159. already referred to at page 167].