APPAYYA SHETTY Vs. BPMMAHAMMAD BEARI

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother is about to deliver. As the question is one of considerable importance and as the decisions bearing on it are not consistent with each other, I think it desirable to state my views on the subject shortly.

(2.) The lease to defendants Nos. 1 and 2 is a permanent one. The plaint says that the produce was set apart for a religious service. I take it that the grantor was only anxious that ho should be paid the rent. He gave up rights of possession, etc., when he granted this permanent lease. The original grantees paid the rant regularly for sixteen years. It was after the transfer of their interests to the third defendant in 1907 that default was made. There were three years arrears of rent when the suit was brought. The document in question provides for the payment of the first year s rent with that of the second year. If rent remained unpaid even then, the lessees were liable to be evicted. The question is whether under the circumstances above set forth, the defaulting lessees were entitled to be relieved from forfeiture. There is no statutory provision (or forfeiture on non-payment of rent regarding agricultural leases. It is open to Courts to look at legislative provisions regarding the liability of other lessees and tanants as embodying the principles of equity, justice and good conscience. I cannot accede to the proposition that such a guidance should be sought only from English decisions and not from statutory provisions in this country.

(3.) Let us first see how the Legislature has treated tenants under the Estates Land Act. Chapter VI of the Act deals exhaustively with the remedies open to the landholder. He can sue for the rent or distrain. The proceedings to be taken cm distraint are hemmed in with strict conditions. The landholder has to exhaust all available/sources before he sells the defaulter s interest in the holding. The distress will have to be withdrawn, if the arrears are deposited or security given for their payment. Even after the commencement of the sale, the tenant is given a locus penitentiae to save his property. It is thus clear that the Legislature has provided very salutary restrictions against turning out a tetant from bis fields. As regards other lessees the Transfer of Property Act lays down that the forfeiture clause must be express. Section 114 provides for relief from the forfeiture incurred even after the institution of the suit. The Indian Statute Law therefore distinctly leans against forfeiture for non-payment of rent. I may also refer to Section 74 of the Contract Act which has abolished the distinction between penalty and liquidated damages and has enacted a general rule affording relief to the defaulting party under certain limitations. Now, turning to the English law, the course of decisions leaves no room for doubt that Courts have striven against evicting tenants from their holdings. Peachy v. Duke of Somerset (1724) 1 Str. 447 : S.C. 2 White and Tudor s Leading cases 255 to which our attention was drawn by Mr. Sitarama Rao and which was followed in the earlier decisions of this Court enunciates the proposition that where the intention of the parties is only to enforce punctual payment, the forfeiture clause should be relieved against. In Bouser v. Colly (1841) 1 Hare 109 the tenant applying to redeem a forfeited lease was not required to pay the rent and costs into Court before being decreed possession. All the cases have been reviewed in Peachy v. Duke of Somerset (1724) 1 Str. 447 : S.C. 2 White and Tudor s Leading cases 255 and the result of the authorities is stated to be that the proviso for re-entry on nonpayment of rent is regarded in equity as merely a security for the rent, and that relief will be given on payment of the arrears and of the expenses incurred. In England there can be relief after suit is brought and before judgment. There is a further indulgence given even after judgment provided the costs of the suit are paid in addition. The period within which this latter remedy is available is now restricted to six months after judgment (15 & 16 Vict., cap. 76, Section 210). Belief after decree may not be granted in India, as the effect of it will be to enable the executing Court to vary the decree. The decision in Nagappa v. Venkat Row (1901) I.L.R. 24 Mad. 265 proceeded on the footing that the compromise decree was only evidence of the contract between the parties and that the Court was not varying the decree in such cases. Balambhat v. Vinayak Ganpat Row (1910) I.L.R. 35 Bom. 239 is to the same effect.