RAJ MOHAN DE Vs. MATI LAL SAHA PODDAR

JUDGEMENT

(1.) This is an appeal by the defendant in an action in ejectment. On the 16th January 1904, the defendant took a lease of homestead land from the plaintiff, at a rent of Rs. 35 per month, for a term of 10 years. The lease provided that the rent for each month would be paid on the last day of the previous month, and default was made in respect of rent for three successive months the tenancy would be forfeited. It is not disputed that the rent payable on the 13th April, 14th May, 14th June and 16th July 1906 was not duly paid. On the 19th July 1906, the defendant paid Rs. 70 as the rent of the two instalments due on the 13th April and 14th May and took a receipt therefor. Default was thereafter made in respect of the rent due on the 16th August 1906. The result was that this suit was instituted on the 31st August 1906 for ejectment of the defendant, on the ground that the tenancy had been forfeited by reason of default in payment of the three successive instalments of rent due respectively on the 14th June, 16th July and 16th August 1906. The defendant pleaded that acceptance of rent on the 19th July 1906 operated as a waiver of the then existing forfeiture, and that consequently the suit is premature. This contention has been negatived by the Courts below and the suit has been decreed. On the present appeal the view unsuccessfully urged in the Courts below has been reiterated by the defendants In our opinion, there is no foundation for the contention that the suit is premature.

(2.) Section 112 of the Transfer of Property Act, which is applicable to this case, provides that a forfeiture under Clause (g) of Section 111 is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the part of the lessor showing an intention to treat the lease as subsisting, provided that the lessor is aware that the forfeiture has been incurred and provided also 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. This provision is of no assistance to the defendant, because the rent accepted by the plaintiff had become due, not since but before forfeiture.

(3.) The appellant has urged that the legal effect of the acceptance of rent on the 19th July 1906 was to condone the default which had happened prior to that date, There are two obvious answers to this ingenious argument.