CHILUKURI TRIPURA SUNDARAMMA Vs. CHILUKURI VENKATESWARLU ALIAS RAMACHANDRAM

JUDGEMENT

(1.) These appeals arise out of the decision of the Subordinate Judge of Tenali wherein the question for consideration is whether the forfeiture clauses contained in the two lease deeds Exs. P-4 and P-5 executed by the respondents in each of these appeals to the appellant should be given effect to or not. Exs. P-4 and P-5 are both registered permanent leases relating to properties leased out to the respective respondents in each of the second appeals and in each of them the condition regarding the payment of rent is that the lessees were to remain in occupation of the property as permanent lessees on payment of a rent of ten bags of paddy per acre payable at the e January, each year. In default of payment of rent, the lessor is entitled to recover the same with a charge over the crop at an extra rate of four annas per bag over the prevailing rates. There was also a further clause that a period of grace from the end of January to the 16 of March every year is allowed for the payment of the rent at the rate mentioned above. In case of default of payment even by that date, it was provided that the permanent leases would stand forfeited and the lessees would be liable to be ejected. Both the lower Courts have found that the respondents are entitled to be relieved of the clause regarding forfeiture as it was a penal one, on condition that the arrears of rent were deposited in Court within the time allowed by the trial Court which gave an opportunity to the respondents to pay the rents claimed in the suit and the same has been complied with.

(2.) The argument of Mr. P. Somasundaram for the appellant is that when a permanent lease provides a stipulated period for the payment of rent after which some days of grace are allowed, and there is a further clause of forfeiture of the tenancy in case the rent is not paid even within the period of grace allowed, the Courts have no power to relieve against forfeiture, because the more allowance of days of grace amounts to something like a relief and therefore there cannot be further relief against forfeiture. Even though prior to 1912, there had been a line of cases laying down that the Court has no power to relieve against forfeiture in such cases, subsequently the tide has turned in the opposite direction and the learned Counsel for the appellant has not been able to show to me any case after 1912 which took the same view that was in vogue previously.

(3.) In Narayana Kamti Vs. Handu Shetty (1901) 15 M.L.J. 210, Shephard and Bhashyam Ayyangar, JJ. have held that where a lease contains a provision that rent should be paid on a certain day and that if default is made and continues until a certain further date, the lease is forfeited, the clause is not a penalty and there can be no relief against forfeiture. The learned Judges followed the maxim that he who seeks equity must do equity and construed the clause as not being a penal one. This decision was followed in Naraina Naicka V/s. Vasudeva Bhatta (1903) 15 M.L.J. 208 : I.L.R. 28 Mad. 389, where Subramania Aiyar, O.G.J., and Bhashyam Ayyangar, J., laid down, in a case where the facts, were similar, that the clause was not a penal one. In that case there was a lease of the year 1866 for building purposes with a provision that the lessee should pay to the lessor rent at the rate of Rs. 5 per annum by the 24 May of each year and if any arrears remained due, they should be paid within a further period of three months or by the 24 August, and if the payment was not made even then, the permanent lease should -stand cancelled. Following the decision in Narayana Kamti v. Handu Shetty (1901) 15 M.L.J. 210, the Court was of the view that the condition of forfeiture for non-payment was not penal as a period of grace was allowed and consequently no relief against forfeiture could be given. To the same effect is the judgment of Benson and Krishnaswami Ayyar, JJ., in Adhiragi Chetti V/s. Billa Tyampu holding that Courts will not relieve against forfeiture for non-payment of rent where a period of grace is allowed in the lease deed. The two earlier decisions referred to supra were followed in this decision. In Mahalakshmi Amma V/s. Lakshmi , Abdur Rahim and Phillips, JJ., struck the same note when they held, following the cases mentioned above, that forfeiture for non-payment of rent when a period of grace is provided for in the lease cannot be ordinarily relieved against, especially when the tenant falsely pleads discharge. The last case of a similar nature is contained in Tungamma V/s. Korathi (1912) M.W.N. 1135 where Sundara Aiyar and Sadasiva Aiyar, JJ., were of the view that where the lease allows a period of grace for payment of rent, the forfeiture incurred by non-payment within the period of grace will not be relieved against. But in Ramakrishna V/s. Baburaya , Arnold White, C.J. and Sankara Nair, J., were of the view that the question whether a tenant is entitled to relief against forfeiture for non-payment of rent must depend on the facts of each case and adverting to the decision in Narayana Kamti V/s. Handu Shetty (1901) 15 M.L.J. 210 and Mahalakshmi Amma V/s. Lakshmi held that they are distinguishable, especially the case in Narayana Kamti V/s. Handu Shetty (1901) 15 M.L.J. 210 where a period of eight months was allowed as the period of grace.