CHOTU MIA Vs. MTSUNDRI

JUDGEMENT

(1.) This second appeal, which is by the plaintiff, arises out of a suit to recover possession of certain land which was leased trat by the predecessor in interest of the plaintiff to the ancestors of the defendant on the ground that there has been a forfeiture of the lease. An ancestor of the defendant, one Sita Ram, was let into possession of the land on 16 June 1861 and then executed an unregistered sarkhat in favour of the predecessor in interest of the plaintiff. It is unnecessary to set out the terms of this sarkhat as the ground on which possession was sought to be recovered was that there had been a disclaimer by the mother of the defendant of the plaintiff's title as landlord. The plaintiff, it appears, sued the mother of the defendant for arrears of rent and in this suit the mother of the defendant, on 27th May 1936, put in a written statement in which she denied that the plaintiff was her landlord. The written statement is not before us and the argument has proceeded on the assumption that the Courts below were correct in holding that what the mother of the defendant there said constituted, as a matter of law, a disclaimer.

(2.) The question that now arises is whether or not there was a waiver of the forfeiture by the plaintiff when he accepted rent from the defendant on 25th November 1938. The rent suit was decreed on 28 January 1938, and, subsequently, on 10 November 1938, the plaintiff sent a notice in writing to the defendant requiring her to vacate the land on or before 2l November, 1938. In this notice the plaintiff said that a sum of Rs. 2 was due to him on account of rent for the period up to 27 May 1936, and that for the period from 28 May 1936 to 7 November 1938 he claimed a sum of Rs. 7-5-0 "by way of damages." Apparently, in consequence of this notice, the defendant remitted a sum of Rs. 9 by money order to the plaintiff and, on 25 November 1938, a son of the plaintiff accepted payment. The suit out of which this second appeal arises was instituted on 17 January 1989. The Courts below have both come to the conclusion that in accepting payment of the money the son of the plaintiff acted as his agent and. wjth his authority. The question as to whether or not there has been a waiver of the forfeiture must be decided with reference to the provisions contained in Section 112, T. P. Act, or to be more strictly accurate, as the sarkhat came into existence in 1861, with reference to the rule of English law to which that section gave statutory effect. Proviso 2 to Section 112 states 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 and would seem to embody the rule laid down in Doe d. Moreoraft V/s. Meux (1825) 1 Car. & P. 347. It appears to me to follow by necessary implication that where rent, which has become due since the forfeiture, is accepted prior to the institution of a suit in ejectment, that amounts, as a matter of law, to waiver. The forfeiture in this case occurred on 27 May 1936 when the mother of the defendant in her written statement in the rent suit denied the plaintiff's title. The amount of rent then due by the mother of the defendant was Rs. 2 and as the son of the plaintiff accepted a sum of Rs. 9 it is clear v that rent to the amount of Rs. 7 which had become due since the forfeiture was accepted. All that can, I think, be said on behalf of the plaintiff is that as, in the notice which he sent to the defendant he said that a sum of rupees 7-5-0 was due to him by way of damages for use and occupation, it ought to be presumed that in accepting the money order his son accepted Rs. 7 out of the Rs. 9 which was remitted not as rent but as damages for use and occupation. The money was, however, remitted as rent and under the form of money order used for that purpose and the defendant in making the payment undoubtedly intended it as a payment of rent. In Croft V/s. Lumley (1858) 10 E. R. 1459 in which a question of precisely this kind arose it was held that what was of importance was what the lessor did and not what he said and that although he received payment on the understanding that it was to be regarded as damages for use and occupation, or mesne profits, it nevertheless operated as a waiver of the forfeiture. Baron Channel said: The party paying the money had, in my judgment, a clear right to appropriate it. He distinctly paid the money as rent. He refused to pay it otherwise than as rent. Mr. Martelli refused in language to receive it as rent; but he did take it. What he did, not what he said, was in my humble opinion the all-important matter. He should have declined to take the money at all, if he meant to elect to proceed for a forfeiture.

(3.) Baron Watson said this : "Mr. Martelli took the money up, making the observation that he would take it for the occupation. In my opinion he received it as it was tendered, viz., as rent. It was not offered as for use and occupation, or mesne profits; indeed, it could not be, as the amount or value of the occupation had not been ascertained. The money was tendered as rent, and being received, it is the receipt of rent, and therefore I am of opinion that there was a waiver of any of the supposed forfeiture.