KIZHAKKEKATH KEMALOOTI Vs. PULIKKALAKATH MUHAMED

JUDGEMENT

(1.) This is a suit for ejectment by a landlord on the ground that the teNant has forfeited his right by his denying the title of the plaintiff. The District Munsif held that the act complained of did amount to a disclaimer of the landlord s title and decreed possession. On appeal the Subordinate Judge agreed with the District Munsif that there was a disclaimer but held that as the lease was granted for the life-time of the lessee, the disclaimer bad not the effect of putting an end to the tenancy and that the suit was premature. He dismissed the suit upon that ground.

(2.) There are two questions for consideration in this second appeal. The first is, was there a disclaimer of title, secondly whether the tenant has not forfeited the tenancy as the lease was for the life-time of the tenant although he did deny the landlord s title. I shall dispose of the second point first.

(3.) The cases quoted by the Subordinate Judge have not much bearing upon this second question. I fail to see why the denial of title during the continuance of the period of tenancy should not work a forfeiture of the right. The Transfer of Property Act, no doubt, has no application to the terms of this tenancy which is an agricultural one. But, the principle of Section 111, Clause (g), is applicable to this case. Under the second sub-section of that clause it is enacted that the lessee renounces his character as such by setting up the title of a third person or by claiming title in himself, Mr. Justice Sadasiva Ayyar in Abbakka v. Seshamma (1914) M.W.N., 915 points out that under the common Law of India a favourable construction should be placed upon the conduct of the tenant before he is adjudged to have forfeited his tenancy. I am prepared to accept this view in dealing with agricultural leases, but I can see no justification for the view taken by the Subordinate Judge that leases for a term will enure for the full length of it notwithstanding the denial of title by the tenant. Therefore if I came to the conclusion that there has been a disclaimer of title by the tenant I would have taken a different view of the case. I suggested, in the course of the arguments, that even if there was a disclaimer, Courts may have power to relieve tenants from forfeiture. Many authorities were not cited on the question at the bar, but on considering the matter fully I am not satisfied that if there is a denial of title there is power in the Courts to relieve against forfeiture. Under the English Law there are, at present, two classes of cases which can be relieved against: (a) for non-payment of rent; the common Law Procedure Acts of 1852 and 1860 and Section 4 of the Conveyancing Act of 1892 provide for relief; (b) in cases of breaches of other conditions and covenants; the Conveyancing Acts of 1891 and 1892 declare the principles on which relief can be granted. No doubt it is pointed out in Barrow v. Isaacs and Son (1891) l.Q.B.,417 that these various enactments have not exhausted the equitable jurisdiction of the High Court to relieve a defaulting tenant from forfeiture. Lord Esher in that case says that in cases which are not provided for by the legislature, equity will come to the aid of the party only where there has been fraud, accident or mistake. Then he proceeds to say that even if any of these elements are found, there will be no relief if the tenant had acted with great carelessness or negligently. The learned Master of the Bolls does not refer to the case of denial of title as one of the relievable cases, and I have not been able to find any authority in which relief was granted by Courts where the tenant had denied the landlord s title. Mr. Justice Sadasiva Ayyar, in the case to which I already referred, seems inclined to the view that all cases of forfeiture can be relieved against. Even accepting this broad proposition as being especially applicable to Indian conditions, I would require that where there has been a denial of title the tenant must prove in the language of Lord Esher that that denial was occasioned by the fraud, mistake or accident of the landlord and that the tenant himself was neither careless nor negligent. In the present case no attempt has been nude to prove that the tenant has been misled. Therefore if I am driven to the conclusion that there has been a disclaimer of title, I would have decreed possession.