DAVID CUTINHA Vs. SALVADORA MINAZES

JUDGEMENT

(1.) This is a case which has taken some time to argue as it involves the question of forfeiture of a mulgeni lease. The lease is contained in a decree (Ex. A) of the 30 August, 1910. It sets out If there is necessity to alienate the said mulgeni right and the right of improvements, the same should be surrendered to plaintiff only on receiving from him the value of improvements fixed by four wise men, and it should not be alienated to any other parson by means of mortgage, sale, gift, etc., in any manner whatever. If the plaintiff refused in writing to take the property on paying the value of the improvements in that manner, the defendants may alienate the same to othtir persons. If in contravention to this, the defendants alienate their right, the said alienation and also the mulcpeni right should be cancelled and the property should come under plaintiff's possession.

(2.) The alienations complained of consist of the grant of a mulgeni lease by some of the tenants and also the grant of a simple mortgage, Ex. J. Both the Lower Courts have held that none of these matters falls within the clause restricting alienation. The tenants, i. e., the persons in possession at the present moment seem to be descendants of the original lessees and their alienees. Mr. Pinto for the appellant has strenuously argued that these lessees are entitled by arrangement among themselves to some kind of definite shares in the leased lands. The plaint, it is true, does allege, and in Fact was obliged to allege that the defendants have alienated portions of the leased property. The plaintiff also alleges that by arrangement among themselves defendants 4 to 6 are in possession of a particular portion of the leased property. But he is careful to add that the said arrangement does not bind him. There is some allegation in the written statement that the rent was paid in shares. But in one of the written statements it is admitted that the mulgar is entitled to receive rent in one lump sum. This theory seems to have been started for the first time in this Court and there seems to be no evidence and no finding in either of the Lower Courts that the mulgar ever recognised this division or partition, or whatever it may be called, among these Indian Catholics.

(3.) A distinction has been attempted to be applied by Mr. Pinto in considering cases which I shall shortly notice. It is an axiom of the law that a forfeiture clause should be very strictly construed. As long ago as 1808 in Church V/s. Brown (1808) 15 Ves 258 at 265 Lord Chancellor Eldon said: These covenants having been always construed by Courts of Law with the utmost jealousy to prevent the restraint from going beyond the express stipulation.