ANNADA CHARAN DATTA Vs. MOHIM CHANDRA GUHA

JUDGEMENT

(1.) Two questions have been raised in this case: the first is whether there was a forfeiture of the defendant s tenancy by reason of certain statements made by him in a previous suit, and, secondly, whether there can be a forfeiture of a permanent tenure on the ground of disclaimer of the landlord s title.

(2.) Taking the second question first, we do not see any reason why a permanent tenure should not be determined by forfeiture. Section 111 of the Transfer of Property Act lays down that a lease of immoveable property determines in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; and the lessor does some act showing his intention to determine the lease.

(3.) The question was raised in the case of Kally Dass Ahiri v. Monmohini Dassee 24 C. 440: 1 C. W. N. 321: 12 Ind. Dec. (N. S.) 961. and it was held that a lease notwithstanding that it is permanent is liable to forfeiture under the provisions of the Transfer of Properly Act, if the tenant denies the title of the landlord. This case is referred to with approval by the Judicial Committee in the case of Abhiram Goswami v. Shyama Charan Nandi 4 Ind. Cas. 449: 10 C. L. J. 284: 36 C. 1603: 6 A. L. J. 857: 11 Bom. L. R. 1234: 36 I. A. 148: 14 C. W. N. 1: 19 M. L. J. 530 (P. C.). In dealing with the argument that a mokarari lease is tantamount to a conveyance in fee simple, their Lordships referred to the distinction between the two transactions, "well pointed out" by Jenkins, J., in his judgment in Kally Dass s case 24 C. 440: 1 C. W. N. 321: 12 Ind. Dec. (N. S.) 961. and observed as follows: "Because at the present day," says the learned Judge, a conveyance in fee simple leaves nothing in the grantor, it does not follow that a lease in perpetuity here has any such result. The law of this country does undoubtedly allow of a lease in perpetuity.... A man who, being owner of land, grants a lease in perpetuity carves a subordinate interest out of his own, and does not annihilate his own interest. This result is to be inferred by the use of the word lease, which implies an interest still remaining in the lessor. He held, therefore, that, whether the Transfer of Property Act applied or not, such a lease is forfeitable, notwithstanding that it is permanent. In this opinion their Lordships concur." There could thus be a forfeiture of a tenancy although it was a permanent tenure.