MUHAMMAD HASSAN Vs. BAIDYA NATH SAHAY

JUDGEMENT

(1.) This is a defendants second appeal from concurrent decrees of the Courts below in favour of the plaintiff. On 2 August, 1900, one Mt. Makho Kuar executed a se-mukarrari lease in favour of Shaikh Ahmad Hussain of a four anna darmukarrari share in a certain village. The annual rent payable was Rs. 162, and this was to be paid in three instalments, namely Rs. 50 in the month of Pus, Rs. 62 in the month of Chait and Rs. 50 in the month of Jeth. It was further provided in this lease that if the tenant failed to pay three consecutive instalments, the lease was to be deemed to have been determined and the landlord was to have a right to re-enter and take khas possession. The present defendants-appellants are the heirs of the original lessee, Ahmad Hussain, whereas the plaintiff is a purchaser of the interest of Mt. Makho Kuar.

(2.) He actually purchased by a sale-deed dated 14 March 1934, and from the terms of that sale deed, it is clear that the tenants were in arrears at the time of the transfer. After the transfer to the plaintiff, the defendants failed to pay their rent, and on 8 June 1936, there were more than three consecutive instalmentsin arrear. On that date, a notice was served upon the defendants, stating that according to the terms of the agreement, the landlord had a right to re-enter and eject the defendants, and a similar notice appears to have been sent eight days later, namely on 16 June 1936. The plaintiff brought the present suit alleging that the defendants had broken the terms of the lease and that he had a right to enter and take possession of the property. He further claimed a sum of money as compensation for the loss sustained by the defendants failure to pay rent. Both Courts below came to the conclusion that the plaintiff was entitled to possession and compensation and decreed his suit.

(3.) In second appeal two points have been taken by Mr. Mitter on behalf of the defendants-appellants. First, it has been argued that the plaintiff in this case had waived his right to claim forfeiture of the lease. It is said that as there were previous arrears which apparently have never been paid, the plaintiff has waived for ever his right to re-enter. In short, the argument amounts to this, that if a landlord is a little indulgent to his tenant, he loses for ever the right to enforce a forfeiture clause in the lease. It is true that if after the landlord is aware of a cause of forfeiture he by some act recognizes the lease, he waives his right to claim forfeiture for that particular breach. For example, if there is a right of forfeiture in the lease for non-payment of rent and after the right to claim forfeiture has arisen, the landlord demands the rent and thus acknowledges that the lease is subsisting, it can be said that the landlord has waived the forfeiture.