A VENKATARAMANA BHATTA Vs. KRISHNA BHATTA

JUDGEMENT

(1.) The appellants before me are defendants 11 and 12. The property in question belongs to defendants 1 to 10. It was mortgaged by them in 1910 to the plaintiffs who are the representatives of what is called the Bhandaram under an usufructuary mortgage. Defendants 1 to 10 obtained the property back from them under a lease for 63 years. In that lease deed there is a covenant for forfeiture on alienation the effect of which is the point to be considered in Second Appeal. Defendants 1 to 10 subsequently mortgaged again to defendants 11 and 12 some portions of this property as well as some other properties belonging to them under a usufructuary mortgage for a period of 90 years.

(2.) It is contended by the plaintiffs that on account of that transaction the covenant for forfeiture in the lease taken by defendants 1 to 10 from them has taken effect and that the plaintiffs are, therefore, entitled to recover possession of the properties from defendants 1 to 10 as well as from defendants 11 and 12 at once. The covenant is worded thus as translated by the lower Court: " We shall not only deliver possession of the property to the Bhandaram alone by means of a surrender deed in case we do not enjoy the property and pay rent in conformity with the provisions of this term-lease till the expiry of the term but we shall not alienate in any manner our rights under this term-lease. If we should, contrary to this, effect any alienation then neither we nor our representatives in interest shall object to the Bhandaram cancelling the term and taking possession of the property and enjoying the same." If the clause for forfeiture applies in the circumstances of the present case, there can be no doubt that the plaintiffs are entitled to cancel the term of the lease granted to defendants 1 to 10 and to recover possession of the property and to hold it themselves as usufructuary mortgagees under defendants 1 to 10. But it is contended before me that there has been no forfeiture under this clause as the alienation by the second usufructuary mortgage was only of a portion of the property included in the lease, and such a partial alienation does not work a forfeiture under the clause in the lease deed. Both the lower Courts have rejected this contention. But it seems to me that there is force in it. A clause for forfeiture must always be construed strictly as against the person who is trying to take advantage of it, and effect should be given to it only so far as it is rendered absolutely necessary to do so by the wording of the clause. In this case the clause speaks of alienation of the defendants rights under the lease deed in any manner. It does not refer to partial alienations at all but only to alienation as a whole. As was laid down by Mr. Justice Joyce in Grove V/s. Portal (1902) 1 Ch. D. 727, a covenant against assignment does not prevent the tenant from assigning for any part of the term or from assigning a portion of the premises, and unless the covenant is expressly worded to exclude a partial alienation of the premises, a partial alienation will not work forfeiture under a clause which prevents alienation of the premises. It is always open to the landlord to put into his lease a covenant against alienation either complete or partial, if he intends that forfeiture should result from a partial alienation as well but where he does not do so the construction adopted in England is that the covenant will not apply to a partial alienation. As this view is based upon general principles of equity, I do not see why that same view should not be adopted and followed in India. Following the view adopted in Grove V/s. Portal (1902) 1 Ch. D. 727. I consider that the alienation here, even though it affected a major portion of the property leased cannot be held to have worked a forfeiture of the period of the lease as the covenant in the document before me does not refer to partial alienation of property. The case of Grove V/s. Portal (1902) 1 Ch. D. 727 was cited in Vittappa Kuda V/s. Durgamma (1919) 38 M.L.J. 190 but it was distinguished there, as the property which was surrendered by the lady was the whole of the property she had then with her. But for the distinction I take it that the learned Judges would have followed the ruling. The question here is not one of giving possession to a third party as the lower Court seem to think. The covenant in the document does not speak of possession at all but of alienation of the rights under the lease. Holding that the usufructuary mortgage to defendants 11 and 12 was not sufficient to work a forfeiture of the term of the lease to defendants 1 to 10, the suit for possession must be dismissed. The decree of the Court of first instance so far as it relates to arrears of rent will not be interfered with.

(3.) As regards the costs, defendants 11 and 12 will be paid their costs as regards possession only by the plaintiffs in all the three Courts. The plaintiffs will bear their own costs on that portion of the case.