ISABALI TAYABALI Vs. MAHADU EKOBA

JUDGEMENT

(1.) The plaintiff sued as a landlord to eject his tenant, the defendant, on the ground that the lease was determined by the defendant s disclaimer of the plaintiff s title. For the defendant it is contended that the plaintiff has no cause of action inasmuch as he had never, before filing the suit, done any act showing his intention to determine the lease. It is admitted that no such act was done by the plaintiff before the institution of the suit, but it is urged that the mere institution of the suit and the assertion in the plaint as to the repudiation of the landlord s title constitute a sufficient manifestation of the plaintiff s intention to determine the lease. The sole question in appeal is whether this argument should be allowed. The point falls to be decided under the Transfer of Property Act, where Clause (g) of Section 111 is the governing provision.

(2.) For the defendant reliance is placed on Anandamoyee v. Lakhi Chandra Mitra (1906) I.L.R. 33 Cal. 339 which was followed, without further examination of the subject, by the Madras High Court in Venkatramana Bhatta v. Gundaraya (1908) I.L.R. 31 Mad. 403, a case decided under the Transfer of Property Act. This latter case was considered in Padrnanabhaya v. Ranga (1910) I.LR. 34 Mad. 161, which was not governed by the Transfer of Property Act, and the learned Judges, without questioning the correctness of the earlier decision, held that, apart from the provisions of the Transfer of Property Act, the institution of an action on the ground of" forfeiture itself amounted to the manifesting of an intention, to determine the tenancy. We have now to decide whether the case is otherwise where the suit is subject to the Transfer of Property Act.

(3.) Before discussing that question on its legal merits it will be convenient to notice what exactly was decided in. Anandamoyee s case, which has been accepted as authority for the rule that the landlord s determination to forfeit the; lease must have been shown by some act prior to the institution of the suit. There the plaintiff Anandamoyee sued in ejectment, and the Court of first appeal dismissed the suit, says the report, " chiefly on the ground that it was not maintainable in the absence of service of notice on the barber-defendants, but without any finding as to whether the plaintiff did any act, before the institution of the suit for ejectment, declaring her intention to determine the tenancy of the defendants."Strictly, therefore, the only question before the Court was whether notice to certain defendants was necessary to the validity of the suit. It is true that the-Court did definitely lay it down that the landlord s intention to forfeit "must be shown at some time or other antecedent to the institution of the suit," but that pronouncement was not necessary to the decision of the point then before the Court. As I have said, Venkatramana Bhatta s case carries the-argument no further. We are, therefore, free to determine-the question without the restriction of any decisive authority.