Madras High Court
Ramakrishna Mallya vs Baburaya Alias Venkatesha Hegade And ... on 13 November, 1912
Equivalent citations: AIR 1914 MADRAS 706
JUDGMENT
1. We agree with the Court below that on the true construction of the lease (Exhibit A) the sub-lease by the first defendant's father did not work a forfeiture. The lower- Appellate Court, in holding that, assuming there was a forfeiture by reason of non-payment of rent, it could not be enforced as the plaintiff had not done any act to show that he intended to avail himself of the forfeiture, would seem to have followed the decision of this Court in Venkatramana Bhatta v. Gundaraya 31 M 403 : 4 M.L.T. 221. In that case,. However, it was not brought to the notice of the Court that the lease in question was prior to the coming into operation of the Transfer of Property Act. The lease in the present case was made in 1871 before the Transfer of Property Act came into operation and this being so, according to the decision in Padmanabaya v. Ranga 6 Ind. Cas. 447 : 34 M. 161 : (1910) M.W.N. 462 : 20 M.L.J. 930 : 8 M.L.T. 110., an act on the part of the landlord showing he elects to take advantage of the forfeiture is not a condition precedent to his right to sue in ejectment. There is no finding by the lower Appellate Court as to whether, on the construction of the lease, non-payment of rent operated as a forfeiture. We accordingly send back the case to the lower Appellate Court for a finding on this question and also, if the Court holds there has been a forfeiture by reason of the nonpayment of rent, for a finding as to the terms, if any, on which the defendant is entitled to be relieved against the forfeiture. The findings should be submitted within one month after the re-opening of the Sub-Court, and seven days will be allowed for filing objections.
In compliance with the order contained in the above judgment, the Subordinate Judge of South Canara submitted the following FINDINGS.--The two issues on which this Court has been directed to submit its findings are (1) : Whether on the construction of the lease non-payment of rent operated as a forfeiture? (2) If there has been a forfeiture by reason of the non-payment of rent, whether the defendant is entitled to be relieved against it on any and what terms? The stipulation in question in the suit lease A is to this effect : I have no cause whatever either....or to keep the rent in arrears. In case, any small portion of the aforesaid rent is kept in arrears or in case ...I shall deliver back the said land etc., and all to you without demanding from you the value of the improvements made by me." As observed in Subbaraya Kamti v. Krishna Kamti 6 M. 159, from the circumstance that the stipulation in question is that, if any portion of the rent should fall into arrears, the property should be surrendered with all right to improvements, (i.e.) without claiming the value of improvements, it might be reasonably inferred that such provision was made in order that it might operate as a fear in the mind of the lessee that the rent should be regularly paid and the parties did not seriously intend that it should be acted upon. In a word, this stipulation was inserted in terrorem [see also Kottal Uppi v. Edavalathi Thathan Nambudiri 6 M.H. C.R. 2587.]
2. Further, there is this important fact that the lease does not provide for any period of grace in respect of the payment of arrears of rent. It has been settled beyond any doubt or controversy that, when such is the case, the forfeiture arising from non-payment of rent will be one that can be relieved against [Vide Mahalakshmi Amma v. Lakshmi 12 Ind. Cas. 456 : 21 M.L.J. 900 : (1911) 2 M.W.N. 385., Narayna Naicker v. Vasudeva Bhatta 28 M. 389 : 15 M.L.J. 208., Narayana Kamti v. Handu Shetty 15 M.L.J. 210. and Aditaya Shetty v. Billa Tyampu 6 Ind. Cas. 438 : 20 M.L.J. 944 : 8 M.L.T. 108 : (1910) M.W.N. 419.] Having regard to the intention of the parties, which can be gathered and reasonably inferred from the insertion of such stipulation as the one in question, and also to the circumstance that the lease provides for no period of grace, I should hold that the forfeiture under consideration is one that can be relieved against. The defendants are entitled to have such equitable relief granted to them.
3. Before the defendants can claim such equity, they must be prepared to do equity. It will be incumbent upon them to pay up the arrears of rent due by them. The 2nd defendant pleaded discharge. The 2nd issue, in the case was, whether the payments of rent and thirva pleaded are true." There was no evidence to prove that issue and it was found in the negative. The rent claimed by the plaintiff is due to him. The defendants not only failed to tender it in Court but also set up a false plea of discharge. The plaintiff will be entitled to get the arrears of rent due to him and that with interest. Having regard to the fact that there was no tender on the part of the, defendant even after the suit was brought but he, on the other hand, falsely pleaded payment, it will not be unreasonable or inequitable to allow plaintiff interest at the rate of 12 per cent. per annum. Plaintiff will also be entitled to get his , full Costs of the suit including the costs on the claim for recovery of possession of the suit property [vide Subbaraya Kamti v. Krishna Kamti. 6 M. 159. already referred to at page 167].
4. For paying up the plaintiff the arrears of rent claimed by him with interest thereon at 12 per cent. per annum from the date on which the rent fell due up to the date of payment and also full costs, some reasonable time will have to be allowed to the defendants. Under the circumstances I am of opinion that it will be sufficient if three weeks' time from the date of disposal of this second appeal in the High Court is allowed to them. There will be no loss or inconvenience to the plaintiff as he gets interest at the aforesaid rate up to the date of payment. If the defendants, with a view to avoid the burden of paying interest, wish to pay up the amount earlier they will be at liberty to pay it to the plaintiff through Court.
5. For the reasons set forth above, I find on these two issues that, if the defendants should pay up what is mentioned supra within the time specified therein, they would be entitled to have the forfeiture in question relieved against.
The second appeal coming on for final hearing after the return of the findings from the lower Appellate Court upon the issues referred by the High Court for trial, the Court delivered the following JUDGMENT
6. The question whether a tenant is entitled to relief against forfeiture for lion-payment of rent must depend on the facts of the particular case. Here we think on the authority of the decision in Subbaraya Kamti v. Krishna Kamti 6 M. 159., following Kottal Uppi v. Edavalath Thathan Nambudiri 6 M.H. C.R. 2587, the tenant is entitled to relief. The cases relied on by the plaintiff (the landlord) are distinguishable-. In Narayana Kamti v. Handu Shetty 15 M.L.J. 210. a long period was allowed, some eight months, after default, before the forfeiture was to take effect and, apparently, there was no stipulation that the tenant should, on default, lose the value of his improvements. In Mahalakshmi Amma v. Lakshmi 12 Ind. Cas. 456 : 21 M.L.J. 900 : (1911) 2 M.W.N. 385. a period of grace was also allowed. There was no doubt a stipulation in that case that the tenant, on default, should lose the value of his improvements, but the effect of this stipulation is not discussed in the judgment.
7. We do not think the fact that the tenant sets up a plea of payment which he fails to prove, necessarily, in itself, disentitles him to equitable relief.
8. We accept the finding and modify the decree of the lower Appellate Court in accordance with the finding. The plaintiff, is entitled to his costs throughout.
9. In default of payment of rent and interest within the time allowed, the plaintiff may recover possession.