BEJOY LAL SEAL Vs. BENARASIDAS KHANDELWAL

JUDGEMENT

(1.) This is an appeal against a decision of my learned brother Page, J, passed on 14 April 1927. The f Act s, -shortly stated, areas follows : On 23 August 1900, one Bolai Lai Seal who was the predecessor-in-interest of the present plaintiffs let out the premises in suit then known as No. 7/1, Halliday Street, to the predecessor of defendants 1 and 2 for a term of 61 years on certain terms and conditions specified in the indenture of lease. On 7 May 1923 defendants 1 and 2 mortgaged the leasehold interest in the said premises by way of sub- demise to the defendant 3. On 20 August 1923 the plaintiffs gave notice to the defendants that they regarded the lease of 23 August 1900 as having been determined by reason of the mortgage of 7 May 1923, which, according to them, operated as a breach by the lessees of a covenant in the lease.

(2.) The present suit was filed on 25 January 1924, in which the plaintiffs prayed for a declaration that the indenture of lease dated 23 August 1900 stood determined and for possession of the premises in question, and also for mesne profits, On 30 June 1925, defendants 1 and 2 were adjudicated insolvents in Karachi and subsequently the Official Assignee of the Court of the Judicial Commissioner of Sind was added as a party defendant in their places The principal defendant, namely, defendant 3, pleaded in his written statement that the mortgage in his favour was not an assignment of the lease in breach of any of the terms of the said document and denied that the plaintiffs were entitled to any relief whatsoever in the suit.

(3.) It is alleged that the plaintiffs came to know of the said mortgage in favour of defendant 3 shortly before 20 August 1923. The rents in respect of the premises had been paid to the plaintiffs up to the month of Jane 1923. In para. 9 of the written statement of defendants land 2 it was stated that, although they had always been ready and willing to pay the rent reserved to the plaintiffs the plaintiffs, as a matter of fact, had not received any rent subsequent to the month of June 1923. When the suit came on for hearing before Page, J., in April 1927, it was suggested that the plaintiffs had accepted rent after they had become aware of the mortgage and that the forfeiture, if any, had been waived. It may be stated at once that, as far as one can make out from the pleadings, they do not raise any issue as to whether or not, after the forfeiture had occurred, the same was waived by the plaintiffs by acceptance of rent. Page, J., held that, on a true construction of the said indenture of lease and the mortgage, there had been no forfeiture of the lease and he accordingly dismissed the plaintiffs suit.