VISHVESHWAR VIGHNESHWAR SHASTRI Vs. MAHABLESHWAR SUBBA BHATTA

JUDGEMENT

(1.) I doubt whether the true point was present to the mind of the learned Judge below. He appears to have thought that the question could be answered from the language of Sections 6, Clause (b), 109 and 111, Clause (g) of the Transfer of Property Act. Even were that so I should still doubt whether the answer he has given is right. Section 6, Clause (6), is no more than a special case of a mere right to sue. For if the mere right of re-entry on breach of condition subsequent is transferred, without the reversion, the person having it could only use it for the purpose of a suit to enforce forfeiture, without gaining any right or interest in the property so demised and forfeited. Section 109 seems to me to have no bearing on the point. Section 111, Clause (g), need not mean any more than that the lessor must give notice of. intention to enforce forfeiture, or if the breach has occurred after transfer of the reversion, the transferee must give notice. That is how I read it, and if I am right, it leaves our point untouched.

(2.) Put in the simplest and fewest words it is this: does the transfer of the reversion carry with it the right to enforce forfeiture for breach of condition prior to the transfer? The law in England was well settled, and seemingly unquestioned that it did not (Hunt v. Bhishop (1853) 8 Exch. 675; Cohen v. Tannar) (1900) 69 L.J.Q.B. 904, till by the Act 1 & 2 Geo. V, C. 37, statutory validity was given to the view taken by the learned Judge below.

(3.) I am not aware of any corresponding amendment of the Transfer of Property Act, altering the law in India. Speaking generally, it is safe to say that with few exceptions the Transfer of Property Act is a codified expression of the English law. Presumably, then, it meant to give effect, to what was the settled law of England on this point, up to 1911.