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PETITIONER: NAMDEO LOKMAN LODHI

       Vs.

RESPONDENT: NARMADABAI AND OTHERS

DATE OF JUDGMENT: 27/02/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  228            1953 SCR 1009  CITATOR INFO :  D          1960 SC 260  (13)  R          1965 SC 225  (15)  R          1969 SC1349  (8)  R          1976 SC 588  (14)

ACT: Lease-Condition that the lessee’s rights shall terminate  if rent  is not paid--Notice in writing by lessor to  terminate lease -Whether necessary-Suit for ejectment without  notice- Maintainability  Transfer  of Property Act (IV  of  1882  as amended in 1929), s. 111(g)-Whether based on justice, equity and  good conscience-Applicability to lease  deeds  executed before 1st April, 1930.

HEADNOTE: The  provision  as  to notice in  writing  of  the  lessor’s intention  to  determine  the lease,  container  in  section 111(g) of the Transfer of Property Act, 1882, as amended  in 1929,  is not based on any principle of justice,  equity  or good  conscience  and is not applicable to  leases  executed prior to 1st April, 1930. Where a lease deed executed before the Transfer of  Property Act,  1882,  came  into force, provided  that  the  lessee’s rights should come to an end on default of payment of  rent, and, as rent was not duly paid, the lessor instituted a suit for  ejectment of the lessee without giving him a notice  in writing  of  his (the lessor’s) intention to  determine  the lease : Held, that the suit was maintainable. Umar  Pulavar  v.  Dawood Rowther  (A.1,R.  1947  Mad.  68), Brahmayya v. Sundodaramma (A.I.R. 48 Mad. 275), Tatya  Savla Sudrik  v.  Yeshwanta  Kondiba Mulay  (52  Bom.   L.R.  909) disapproved.  Toleman v. Portbury (L.R. 6 Q.B. 245), Prakash Chandra  Das  v. Rajendra Nath Basu (I.L.R. 58  Cal.  1359), Rama   Aiyangar  v.  Guruswami  Chetty  (35   M.L.J.   129), Venkatachari v. Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti  v.  Gilbert Pinto (I.L.R. 42 Mad.  654)  relied  on. Venkatarama Aiyar v. Ponnuswamy Padayachi (A.I.R. 1935  Mad. 918), Aditya Prasad v. Ram Ratanlal (57 I-A. 173),  Muhammad Raza  v.  Abbas Bandi Bibi (59 I.A. 236), Roberts  v.  Davey (110 E.R. 606) distinguished.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 154 of  1952. Appeal  from  the Judgment and Decree dated the  23rd  June, 1949, of the High 131 1010 Court   of   Judicature  at  Bombay  (chagla   C.   J.   and Gajendragadkar J.) in Second Appeal No. 557 of  1945 against the  Judgment and Decree dated the 19th March, 1945, of  the Court  of  Small Causes, Poona, in Civil Appeal No.  175  of 1943, arising from the Decree dated the 31st March, 1943, of the Court of the Extra Joint Sub-Judge of Poona in Suit  No. 858 of 1941. C.   K.   Daphtary,   Solicitor-General  for   India   (J.B. Dadachanji, with him) for the appellant. V. M. Tarkunde for the respondents. 1953.  February 27.  The judgment of the Court was delivered by MAHAJAN  J.-This  is an appeal by defendant No. I  from  the decree  of the High Court of Judicature at Bombay in  Second Appeal No. 557 of 1945, whereby the High Court confirmed the decree  of the lower courts granting possession of  land  to the respondents on the forfeiture of a lease.  The appeal is confined to survey No. 86/2 at Mundhava in Poona district. The principal question arising for decision in the ap.  peal is whether notice as contemplated by section III (g) of  the Transfer of Property Act is necessary for the  determination of a lease for non-payment of rent even where such lease was executed  before  the coming into force of the  Transfer  of Property  Act.   The  only other  question  that  falls  for determination   is  whether  the  High  Court  should   have interfered  with  the  discretion of  the  lower  courts  in refusing  relief against forfeiture in the circumstances  of this case. The  present respondents are the daughter and grand sons  of the original plaintiff Vinayakbhat.  His adoptive mother was Ramabai.   She owned two inam lands at Mundhava  which  were then  numbered Pratibhandi Nos. 71 and 72.   Present  survey Nos.  86/1 and 86/2 together correspond to  old  Pratibhandi No.  71.   On  1st July, 1863, Ramabai,  while  she  was  in financial  difficulties,  passed a permanent lease  of  both these numbers to one Ladha Ibrahim Sheth.  The lessee paid a premium of Rs. 999 for the lease, and also agreed to pay 1011 a  yearly rent of Rs. 80 to Ramabai during her lifetime  and after  her death a yearly amount equal to the assessment  of the  two lands to the heirs of Ramabai.  The lease  provided that in default of payment of rent the tenant’s rights would come  to an end.- On 18th August, 1870, Ladha  Ibrahim  sold his  tenancy  rights to one Girdhari Balaram Lodhi  for  Rs. 7,999.  The sale deed provided that in default of payment of rent  to Ramabai or her heirs, the purchaser would  have  no rights  whatsoever left over the property.  On the same  day the purchaser passed a rent note in favour of Ramabai.   The rent note provided for the payment of the agreed rent in the month  of  Pousb  every year, and stated  that  in  case  of default the tenant or his heirs would have no right over the land.   Defendant  No. 1 and the other  defendants  are  the grandsons of Seth Girdhari Balaram. In spite of the nullity clause in the lease it appears  that the lessee has been more or less a habitual defaulter in the payment  of rent.  In the year 1913, rent for six years  was in  arrears.  Vinayakbhat filed Suit No. 99 of 1913  in  the

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court of the II Class Sub-Judge, Poona, against the  present defendants  for  possession of the demised premises  on  the ground  of forfeiture.  A number of defences were raised  by them.  Inter alia, it was pleaded that as no notice had been given  to  them the forfeiture was not  enforceable.   These contentions  were  negatived but the  court  granted  relief against  forfeiture.   Defendant No. 1 was a minor  at  that time and became a major in or about 1925. In  the year 1928 again rent for two years was  in  arrears. Vinayakbhat  filed  Civil Suit No. 258 of 1928  against  the present   defendants  for  possession  on  the   ground   of forfeiture.    The   plaintiff   subsequently   waived   the forfeiture by accepting three years’ rent which by then  had fallen in arrears and costs of the suit. In  the  year  1931 rent for three  years  again  fell  into arrears.   The amount was then sent by money order  and  the landlord accepted it. In the year 1934 again rent for three years remained unpaid. At that time proceedings were started by Government for  the acquisition of the old survey No. 72. 1012 The  landlord  claimed  that he was entitled  to  the  whole compensation  money  as the tenant’s rights  had  ceased  by forfeiture for non-payment of rent.  Defendant No. 1 through his  pleader sent a notice to Vinayakbhat to come  and  take the arrears of rent.  ’He agreed and accepted the arrears of rent  and the forfeiture was again waived.  As a  result  of this  the defendants got Rs. 32,000 by way  of  compensation for the permanent tenancy rights in old survey No. 72, while Vinayakbhat   got  Rs.  1,400  for  compensation   for   the acquisition of his rights as landlord in that land. In   1938  rent  for  four  years  was  again  in   arrears. Vinayakbhat filed Civil Suit No. 982 of 1938 in the court of the  I  Class  Sub-Judge at Poona against  all  the  present defendants  for possession of survey Nos. 86/1 and  86/2  on the  ground that the lease had determined by forfeiture  for non-payment  of rent.  In that suit defendant No. 1  pleaded that  there was no forfeiture because no rent was  fixed  in respect  of  the suit property and also because it  was  for the, plaintiff to recover rent and not for the defendants to go  to  the plaintiff and pay it.   These  contentions  were negatived.   It  was held that forfeiture had  occurred  but relief against forfeiture was again granted. On  plaintiff’s  appeal in this case, the  learned  District Judge refused to interfere with the discretion of the  trial judge  in  granting relief against forfeiture  but  observed that   the   defendants  having  obtained   relief   against forfeiture  thrice before should not expect to get it for  a fourth  time  if they again make default in the  payment  of rent. The  default  which  has  given rise  to  the  present  suit occurred on 28th January, 1941, and the plaintiff filed  the suit  out of which this appeal arises for possession on  the ground  of  forfeiture  and for the arrears  of  rent  which remained unpaid.  It was alleged in the plaint that the rent due  on 28th January, 1941, was not paid,  though  demanded. Plaintiff asked for possession of survey Nos. 86/1 and  86/2 after  removal of the structures thereon.  Defendant  No.  1 pleaded  that as a result of partition rights in survey  No. 86/2 had fallen to 1013 his  share, that according to the terms of the rent note  it was  for the plaintiff to approach the defendants  and.  not for  the  defendants to go to the plaintiff and  pay  it,’-’ that as the plaintiff did not approach the defendants and no

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demand  for  rent  was made, no  forfeiture  occurred,  that defendant No. I did offer the rent to the plaintiff, but the plaintiff  fraudulently  refused  to  accept  it,  that  the plaintiff ought to have sent a notice according to law if he wanted  to enforce the right of forfeiture and that  without prejudice  to  the above contentions he  should  be  granted relief against forfeiture. The  trial court decreed the plaintiff’s suit and  negatived the  contentions  raised  by the  defendants.   In  awarding Possession of the entire property to the plaintiff the trial court  imposed  a  condition that  defendant  No.  I  should continue to be in possession of the two structures in survey No.  86/2  till  the end of March, 1950.   On  the  question whether  a  notice was necessary before the lease  could  be terminated,  the  trial court expressed the  view  that  the provision  in the rent note that on non-payment of rent  the rights  of the tenant would come to an end was a  clause  of nullity  and not merely a clause of forfeiture and that  the lease was therefore determined under section 111 (b) and not under  section III (g) of the Transfer of Property  Act  and that no notice as required by section 111 (g) was  necessary for  terminating  the lease in suit.  On the  issue  whether forfeiture should be relieved against, the trial court  said that  relief  could have been given to  the  lessee  against forfeiture  under section 1 14 had it not been for the  fact that the defendants had disentitled themselves to relief  by contumacious  conduct on their part, that even  this  paltry rent  had  never been paid in time during  the  last  twenty years  at  any  rate, and that after  defendant  No.  I  had attained majority and got the estate in his charge in  1922- 23  he  had uniformly defaulted in the payment of  rent  and that  the  defendants raised totally false defences  and  in every  suit  a  false excuse was set up  in  an  attempt  to justify the arrears of rent. 1014 In  pursuance  of the trial court’s  decree  plaintiff  took possession of all the suit lands in April, 1943, except  one acre  which  he  took possession on  13th  September,  1943. Defendant No. I remained in possession of the two structures on survey No. 86/2.  Against the decision of the trial judge defendant No. I-alone filed an appeal to the District  Judge of Poona.  The lower appellate court confirmed the decree of the trial court with two modifications.  Defendant No. I was allowed to remove the buildings on survey No. 86/2 and  also the trees therein within three months.  On the issue whether a  notice was necessary, the appellate court found that  the lease  came  to an end not under section  111(b)  but  under section  111 (g) of the Transfer of Pro perty Act, but  that no notice of forfeiture was necessary as the lease had  been executed  prior to the coming into force of the Transfer  of Property  Act.  The appellate court saw no valid reason  for interfering  with  the  finding of the trial  judge  on  the question concerning relief against forfeiture. From  this appellate decree defendant No. I filed  a  second appeal  to  the  High Court of Judicature  at  Bombay.   The plaintiff filed cross-objections in regard to the trees  and costs.  The High Court dismissed the appeal and allowed  the cross-objections.   An  application was made  for  leave  to appeal  to  the  Supreme  Court  and  it  was  granted  with reference to survey -No. 86/2. The  law  with  regard to the determination of  a  lease  by forfeiture  is contained is section III (g) of the  Transfer of Property Act.  Under that provision a lease is determined by forfeiture in case the lessee breaks an express condition which  provides  that on breach thereof the lessor  may  re-

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enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in  himself, or the lessee is adjudicated an  insolvent  and the  lease  provides  that the lessor  may  reenter  on  the happening of such event and a certain further act is done by the   lessor  as  thereinafter  mentioned.   Prior  to   its amendment  by  Act  XX of  1929,  this  sub-section  further provided 1015 "And in any of these cases the lessor or his transferee does some act showing his intention to determine the lease." By  Act  XX  of 1929, this subsection was  amended  and  the amended sub-section now reads:- "And  in  any of these cases the lessor  or  his  transferee gives  notice in writing to the lessee of his  intention  to determine the lease." Section  111 (g) in terms makes the further act an  integral condition  of the forfeiture.  In other words, without  this act there is no completed forfeiture at all.  Under the  old section an overt act evidencing the requisite intention  was essential.  As the law stands today under the Act, notice in writing  by  the  landlord is a  condition  precedent  to  a forfeiture and the right of re-entry.  Section 63 of Act  XX of  1929,  restricts  the operation  of  this  amendment  to transfers of property made after 1st April, 1930.  The lease in  this case was executed before the Transfer  of  Property Act  came into force in 1882.  The amendment therefore  made in   this   sub-section  by  Act  XX  of  1929   not   being retrospective, cannot touch the present lease and it is also excluded  from the reach of the Transfer of Property Act  by the provisions of section 2. The position was not  seriously disputed  in the High Court or before us that the  statutory provisions  of  section  111(g) as such cannot  be  made  to govern  the  present lease which was executed  in  the  year 1870.   It  was however strongly argued that  the  amendment made  in  1929  to  section 111(g) of  the  Act  embodies  a principle  of  justice,  equity  and  good  conscience   and notwithstanding  section  2 of the Act, that  principle  was applicable  in  this  case and there can  be  no  forfeiture unless  notice in writing to the lessee of his intention  to determine the lease by the lessor bad been given. It is axiomatic that the courts must apply the principles of justice,  equity and good conscience to  transactions  which come  up  before  them for  determination  even  though  the statutory provisions of the Transfer of 1016 Property Act are not made applicable to these  transactions. It  follows therefore that the provisions of the  Act  which are  but  a statutory recognition of the rules  of  justice, equity  ’and  good conscience also govern  those  transfers. If,   therefore,  we  are  satisfied  that  the   particular principle  to which the legislature has now given effect  by the  amendment  to section 111 (g) did in fact  represent  a principle   of   justice,  equity   and   good   conscience, undoubtedly  the case will have to be decided in  accordance with the rule laid down in the section, although in  express terms  it  has not been made applicable to  leases  executed prior to 1929 or even prior to the Transfer of Property  Act coming into force. The  main  point  for consideration - thus  is  whether  the particular  provision  introduced  in  sub-section  (g)   of section 111 of the Transfer of Property Act in 1929 is but a statutory recognition of a principle of justice, equity  and good  conscience, or whether it is merely a  procedural  and technical rule introduced in the section by the  legislature

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and  is  not  based on any well  established  principles  of equity.   The  High Court held, and we think  rightly,  that this  provision in sub-section (g) of section III in  regard to  notice  was  not based upon any  principle  of  justice, equity and good conscience.  In the first instance it may be observed  that  it  is  erroneous  to  suppose  that   every provision  in  the  Transfer  of  Property  Act  and   every amendment  effected  is necessarily based on  principles  of justice,  equity and good conscience.  It has to be seen  in every  case  whether the particular provisions  of  the  Act relied upon restates a known rule of equity or whether it is merely  a  new  rule laid down by  the  legislature  without reference to any rule of equity and what is the true  nature and  character of the rule.  Now, so far as section 111  (g) of  the  Act is concerned, the insistence therein  that  the notice  should be given in writing is intrinsic evidence  of the  fact  that  the formality is merely  statutory  and  it cannot trace its origin to any rule of equity.  Equity  does not  concern itself with mere forms or modes  of  procedure. If  the purpose of the rule as to notice is to indicate  the intention of the lessor to 1017 determine  the  lease and to avail himself of  the  tenant’s breach of covenant it could as effectively be achieved by an oral  intimation  as  by a written one without  in  any  way disturbing the mind of a chancery judge.  The requirement as to  written notice provided in the section therefore  cannot be said to be based on any general rule of equity.  That  it is  not  so  is  apparent from  the  circumstance  that  the requirement of a notice in writing to complete a  forfeiture has  been  dispensed with by the legislature in  respect  to leases  executed before 1st April, 1930.  Those  leases  are still governed by the unamended sub-section (g) of section 1 1 1. All that was required by that sub-section was that  the lessor  was to show his intention to determine the lease  by some  act  indicating  that intention.   The  principles  of justice, equity and good conscience are not such a  variable commodity,   that  they  change  and  stand  altered  on   a particular  date on the mandate of the legislature and  that to leases made between 1882 and 1930 the principle of equity applicable  is  the one contained in sub-section (g)  as  it stood  before 1929, and to leases executed after 1st  April, 1930, the principle of equity is the one stated in the  sub- section  as  it  now stands.  Question may  also  be  posed, whether  according  to English law a notice is  a  necessary requisite to complete a forfeiture. The  English law on the subject is stated in  Foa’s  General Law  of  Landlord and Tenant (7th edition) at  page  316  in these terms :- "  In no case can the lessee take advantage of  the  proviso for  re-entry in order to avoid the lease, even where it  is in the form (not that the lessor may reenter, but) that  the term  shall cease, or that the lease shall be void  for  all purposes, or ’absolutely forfeited’; for expressions of this kind  only  mean  that the tenancy shall  determine  at  the option   of  the  lessor.........  This  has  been   usually expressed by saying that the lease is voidable and not void; but  the  true principle appears to be that the  lease  does become  void  to all intents and purposes,  though  this  is subject  to the condition that the party who is  seeking  to set up its invalidity 132 1018 is not himself in default, for otherwise he would be  taking advantage  of  his  own wrong.  It follows  that  where  the

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proviso makes the lease void, the landlord must, in order to take  advantage of it, do some unequivocal act  notified  to the lessee, indicating his intention to avail himself of the option  given  to  him.   The service  upon  the  lessee  in possession of a writ in ejectment is sufficient". The   Law  of  Property  Act,  1925,  by  section  146   has consolidated  the  law  in England  on  this  subject.   The provision with regard to the giving of notice before a right of re-entry accrues to the landlord is expressly excluded by sub-section (11) in cases of re-entry on forfeiture for non- payment of rent.  In England it is not necessary in case  of non-payment  of rent for a landlord to give notice before  a forfeiture results.  It cannot, therefore, be said that what has  been  enacted in sub-section (g) of section II 1  is  a matter  which even today in English law is considered  as  a matter  of justice, equity and good conscience.  In  English law  the  bringing  of an action which  corresponds  to  the institution  of  a suit in India is itself an act  which  is definitely  regarded as evidencing an intention on the  part of  the  lessor to determine a lease with  regard  to  which there has been a breach of covenant entitling the lessor  to re-enter  : vide Toleman v. Portbury and Prakashchandra  Das v. Rajendranath Basu(2). In  India there is a substantial body of judicial  authority for  the proposition that in respect of leases  made  before the  Transfer  of Property Act forfeiture is  incurred  when there  is a disclaimer of title or there is  non-payment  of rent.   Any subsequent act of the landlord electing to  take advantage  of a forfeiture is not a condition  precedent  to the  right  of  action for ejectment.   The  bringing  by  a landlord  of  a  suit  for ejectment is  simply  a  mode  of manifesting  his  election.  The principle  of  these  cases rests  upon the ground that the forfeiture is complete  when the  breach of the condition or the denial of title  occurs. But  as it is left to the lessor’s option to take  advantage of it or not, the (1)  L.R. 6 Q.B. 245.(2) (1931)58 cal. 1359. 1019 election is not a condition precedent to the right of action and   the  institution  of  the  action  is   a   sufficient manifestation  of  the  election.   The  same  principle  is applied for actions for relief on the ground of fraud. [vide Padmabhaya  v. Ranga(1) ; Korapalu v. Narayana(2)]. In  Rama Aiyangar v. Guruswami Chetty(3),it was saidthat as the lease was  not  governed  by the Transfer  of  Property  Act,  the institution  of the suit was a sufficient  determination  of the  lease  and no other previous act determining  the  same such  as a notice to quit was necessary for maintaining  the action.   The  same view was expressed  in  Venkatachari  v. Rangaswami  Aiyar(4).   In Venkatarama Aiyar  v.  Ponnuswami Padayachi(5),  it was observed that the forfeiture will  not be  produced  merely  by the unilateral act  of  ceasing  to comply with the conditions upon which the property is  held, but  it  must involve also some expression of  intention  to enforce the forfeiture on the part of the lessor.  In  other words, the lessee cannot by his unilateral act terminate the lease, and cannot take advantage of his own wrong.  That  is an intelligible principle and is based on a maxim of equity. But  the  defaulting lessee cannot claim the  benefit  of  a notice  in  writing  to  complete  the  forfeiture  he   has incurred.   The  lessor has to simply express  an  intention that he is going to avail of the forfeiture and that can  be done  by  the filing of a suit, as in English  law,  in  all cases not governed by the Transfer of Property Act. Again  in Ramakrishna Mallaya v. Baburaya (6), it  was  said

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that in an ejectment suit based on leases executed prior  to the  Transfer  of Property Act, no act on the  part  of  the landlord  showing that he elected to take advantage  of  the forfeiture  for  non-payment  of rent  was  necessary.   The contrary  view  expressed  in  Nourang  Singh  v.   Janardan Kishor(7),  that  the institution of a  suit  for  ejectment could  not  be  regarded  as a requisite  act  to  show  the intention of a (1)  (1911) I,L.R. 34 Mad. 161. (2)  (1915) I.L.R. 38 Mad. 445. (3)  (1918) 35 M.L.J. 129. (4)  (1919) 36 M.L.J. 532. (5)  A.I.R. 1935 Mad. 918. (6)  (1914) 24 I.C. 139. (7)  (1918) I.L.R. 45 Cal. 469, 1020 landlord to determine a lease within the meaning of  section 111  (g),  was  dissented from  in  Prakashchandra   Das  v. Rajendranath  Basu(1);  and  it was said that  there  is  no special  reason  why the lessor’s election must be  made  at some time prior to the institution of a suit and that it was difficult to find a raison d’etr for the view that the cause of action has not completely accrued if the election is made at the moment when the suit is instituted, i.e., the  moment the  plaint is presented.  The cause of action for the  suit can arise simultaneously with the presentation of a  plaint. In  our opinion the provision as to notice in writing  as  a preliminary to a suit for ejectment based on forfeiture of a lease  is not based on any principle of justice,  equity  or good  conscience and cannot govern leases made prior to  the coming into force of the Transfer of Property Act, 1882,  or to leases executed prior to 1st April, 1930.  The rights and obligations  under  those  leases  have  to  be   determined according  to the rules of law prevailing -at the  time  and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the  lease unless  the lessor gives an indication by  some  unequivocal expression  of intention on his part of taking advantage  of the breach.  On no principle of equity is a tenant  entitled to  a notice in writing telling him that the lease has  been determined.  The High Court was therefore right in the  view that  it took of the matter and there are no  valid  reasons for taking a contrary view. Considerable  reliance  was placed by Mr.  Daphtary  on  the decision  of Chandrasekhara Aiyar J. sitting singly  in  the case  of  Umar  Pulavar v. Dawood  Rowther(2),  wherein  the learned  Judge said that section 111 (g) as amended in  1929 embodied a principle of justice, equity and good  conscience and  must  be held to govern even  agricultural  leases  and where  there  was a forfeiture by denial of  the  landlord’s title,  a  notice  in  writing  determining  the  lease  was necessary.  it  was  there observed that  the  principle  so embodied (1) (1931) I.L.R. 58 Cal. 1359. (2) A.I.R. 1947 Mad. 68. 1021 in the sub-section as a result of the amendment becomes,  so to say, a principle of justice, equity and. good conscience. The  learned  Judge  for this view placed  reliance  on  the decision in Krishna Shetti v. Gilbert Pinto(’), in which  it was  said that the Transfer of Property Act was  framed.  by eminent  English lawyers to reproduce the rules  of  English law, in so far as they are of general. application and  rest on  principle  as well as authority and its  provisions  are binding  on  us  as  rules  of  justice,  equity  and   good

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conscience.   With  respect, we are constrained  to  observe that  this is too broad a statement to make.  It seems  that the  attention  of the learned judges was not drawn  to  the fact that the provision as to notice for determining a lease for  nonpayment of rent was not a part of the  English  law. It  also does not seem to have been fully  appreciated  that the rule enunciated in sub-section (g) of section 111  prior to  its  amendment in 1929 and which  still  governs  leases executed  before  1st April, 1930, OD the reasoning  of  the decision  would also be a rule of justice, equity  and  good conscience and according to it the institution of a suit for ejectment would be sufficient indication on the part of  the landlord  for  determination of the lease and  a  notice  in writing  as required by the amended section would not  be  a prerequisite  for institution of such a suit.  In our  judg- ment,  this  case was wrongly decided and we are  unable  to support it. As  pointed  out by Napier J. in Krishna Shetti  v.  Gilbert Pinto  (1),  the courts should be very careful  in  applying statutory  provisions and the assistance of the Transfer  of Property Act as a guide on matters which have been  excluded from  the purview of the Act by express words should not  be invoked, unless the provisions of the Act embody  principles of general application. Mr.  Daplitary also placed reliance on certain  observations contained in the Full Bench decision Brahmayya v. Sundaramma (1).   There  it was said that although section 106  of  the Transfer of Property Act does not (1) (1919) I.L.R. 42 Mad. 654. (2) A.I.R. 1948 Mad. 275. 1022 apply  to  leases  for agricultural  purpose  by  virtue  of section  117 of the Act, nevertheless the rules  in  section 106  and  in the other -sections (sections 105 to 11  6)  in Chapter V of the Act are founded upon reason and equity  and they are the principles or English law and should be adopted as  the  statement of the law in India  applicable  also  to agricultural leases.  In our opinion, the above statement is again formulated in too wide a language.  Section 105  gives a  statutory definition of the word "lease".  It  enunciates no  principle of equity.  The relation of lessor and  lessee is  one  of contract and in Bacon’s Abridgement a  lease  is defined as a contract between the lessor and the lessee  for the  possession  and  profits of land on the  one  side  and recompense by rent or other consideration on the other.  The statute  has  given a more comprehensive definition  of  the term.  Section 107 makes registration of a lease compulsory. This section again does not concern itself with any  princi- ple  of justice or equity.  Section 108 (j) enacts that  the lessee  may  transfer  absolutely  by  way  of  mortgage  or sublease  the  whole  or any part of  his  interest  in  the property  and  any transferee of such interest or  part  may again  transfer  it.  The law in India and England  on  this subject is not the same and it cannot be said that this sub- section  enacts  or  enunciates  any  general  principle  of equity.   Parts of sections 109, 1 10 and Ill  contain  mere rules  of procedure or rules of a technical  nature.   These certainly  cannot be said to be based on any  principles  of equity.   In our judgment, therefore, the statement in  this decision  that  sections  105  to 116  of  the  Transfer  of Property  Act  are  founded upon principles  of  reason  and equity cannot be accepted either as correct or precise.   Of course,  to the extent that those sections of the  Act  give statutory  recognition to principles of justice, equity  and good  conscience  they  are applicable  also  to  cases  not

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governed by the Act. Reference  was also made to the decision of the Bombay  High Court  in Tatya Savla Sudrik v. Yeshwanta Kondiba Mulay  (1) where it was said that the (1)  (1950) 52 Bom.  L.R. 909. 1023 principle  embodied  in section 111 (g) of the  Transfer  of Property  Act  that in the case of forfeiture by  denial  of landlord’s title a notice in writing determining them  lease must  be  given is a principle of justice, equity  and  good conscience  which must be held to govern  even  agricultural leases.   In that case it was contended that following  upon forfeiture  which had been incurred a suit was filed by  the plaintiffs in eviction and nothing more needed to be done by the plaintiffs.  For this contention reliance was placed  on two  earlier  decisions of the Bombay  High  Court,  Venkaji Krishna   Nadkarni   v.  Lakshman  Devji  Kandar   (1)   and Vidyavardhak  Sang Co. v. Avvappa (2).  This  contention was negatived in view of the decision of Chandrasekhara Aiyar J. above referred to, and also in view of a binding decision of a Division Bench of that court in Mahiboobkhan Muradkhan  v. Ghanashyam  Jamnaji(3).   The learned Chief Justice  in  the judgment under appeal has explained the distinction  between the present case and that case and has not followed his  own earlier decision in arriving at his conclusions here.   With respect we think that that decision did not state the law on the point correctly.  Under English law the institution of a suit for ejectment has always been considered an unequivocal act on the part of the landlord for taking advantage of  the default  of the tenant and for enforcing the  forfeiture  in case of non-payment of rent, and even in other cases  except where statutory provisions were made to the contrary. Reference  was  also  made  to  the  observations  of  their Lordships of the Privy Council in Aditya Prasad v.  Ramratan Lal (1).  Their Lordships dealing with the question  whether a certain document created a charge upon a village  observed that  the appellant could not redeem it without paying  both the mortgage debt and the amount subsequently raised and  it was said that the provisions of the Transfer of Property Act on the point were identical with the principles of  justice, equity  and good conscience.  The observation made  in  that case must be limited to that case and cannot be (1)  (1896) I.L.R 20 Bom, 354 F.B. (2)  (1925) 27 Bom, L.R. 1152. (3)  Unreported. (4)  (1930) 57 I.A. 173. 1024 held  as applicable to all cases irrespective of the  nature of  the  provisions  involved.   Similar  observations   are contained  in  another decision of their  Lordships  of  the Privy  Council  in Muhammad Raza v. Abbas  Bandi  Bibi  (1), which concerned the provisions of section 10 of the Transfer of  Property Act which recognizes the validity of a  partial restriction  upon  a power of disposition in the case  of  a transfer  inter  vivos.   It  was held  that  there  was  no authority that a different principle applied in India before the  Act  was passed and that under English  law  a  partial restriction  was’  not  repugnant  even in  the  case  of  a testamentary gift. Lastly,  Mr. Daphtary drew our attention to the decision  in Roberts  v. Davey(2), which relates to a licence.  There  it was observed that it was necessary for the licensor to  have done some act showing his intention to determine the licence and  until  such  act  was shown,  it  continued  in  force. Littledale  J. in this case said that the instrument was  "a

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mere  licence to dig, and did not pass the land.  An  actual entry,  therefore,  was  unnecessary to  avoid  it;  but  by analogy to what is required to be done in order to determine a freehold lease which, by the terms of it, is to be void on the  non-performance of covenants, it seems to follow  that, to put an end to this licence, the grantor should have given notice  of  his  intention  so to do".   The  basis  of  the decision  was that some act amounting to an exercise of  the option  had to be proved before the licence was  determined. This  decision  therefore  does not in any  way  affect  the decision of the High Court in this case. On  the question whether the tenant should have  been  given relief  against  forfeiture  the High Court  held  that  the matter  was one of discretion and both the lower courts  had exercised  their discretion against the appellant  and  that being so, unless they were satisfied that the discretion was not  judicially  exercised or was exercised  without  proper materials  they  would not ordinarily interfere with  it  in second  appeal.   It was said that the non-payment  in  this case seems to have (1) (1932) 59 I.A. 236. (2) 110 E.R. 606. 1025 become chronic and that this was not a case for the exercise of equitable jurisdiction. Mr.  Daphtary  contended  that  the  High  Court  failed  to appreciate  the  rule  applicable for the  exercise  of  the discretion in such cases and that the rule is that if at the time  relief is asked for the position has been  altered  so that relief cannot be given without causing injury to  third parties relief will be refused, but if that position is  not altered  so that no injustice will be done there is no  real discretion and the court should make the order and give  the relief.   Reference was made to the decision of Page  J.  in Debendralal Khan v. F. M. A. Cohen (1), wherein it was  said that   the  court  normally  would  grant   relief   against forfeiture for non-payment of rent under section 114 of  the Transfer of Property Act and that if the sun) required under the  section  was  paid or tendered to  the  lessor  at  the hearing  of  the suit the court has no  discretion.  in  the matter and must grant relief to the tenant.  We do not think that  the learned Judges intended to lay down any  hard  and fast rule.  Indeed the learned Judge proceeded to observe as follows:- "In  exercising  the discretion with which it  is  invested under  section  114  a court in India is not  bound  by  the practice  of  a court of Chancery in England, and I  am  not disposed  to limit the discretion that it  possesses,  Those who  seek equity must do equity, and I do not  think  merely because  a tenant complies with the conditions laid down  in section 114 that he becomes entitled as of right to relief" In our opinion, in exercising the discretion, each case must be  judged by itself, the delay, the conduct of the  parties and  the  difficulties to which the landlord. has  been  put should  be  weighed against the tenant, This  was  the  view taken by the Madras High Court in Appaya Shetty v.  Mohammad Beari (2) , and the matter was discussed at some length.  We agree  with  the ratio of that decision.  It is a  maxim  of equity that a person (1) (1927) I.L.R. 54 Cal. 485. (2) (1916) I.L.R, 39 Mad. 834. 133 1026 who comes in equity must do equity and must come with  clean hands  and  if the conduct of the tenant is   such  that  it

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disentitles him to relief in equity, then the court’s  hands are  not  tied to exercise it in his favour.   Reference  in this  connection may also be made to Ramakrishna  Mallya  v. Baburaya(1), and Ramabrahmam v. Rami Reddi (2). The  argument  of  Mr.  Daphtary  that  there  was  no  real discretion  in  the court and relief could  not  be  refused except  in  cases where third party interests  intervene  is completely  negatived by the decision of the House of  Lords in Hyman v. Rose (3).  Relief was claimed in that case under the  provisions  of section 14(2) of the  Conveyancing  Act, 1881,  against  forfeiture for breaches of covenant  in  the lease.  The appellants offered as the terms on which  relief should be granted to deposit a sum sufficient to ensure  the restoration of the premises to their former condition at the end  of the term and make full restitution.  It  was  argued that  the matter was one of discretion and the court  should lean  to  relieve a tenant against forfeiture  and  if  full recompense can be made to the landlord the relief should  be granted.   Lord  Loreburn in delivering the opinion  of  the House observed as follows:- "I  desire  in  the first instance to  point  out  that  the discretion given by the section is very wide.  The court  is to  consider  all the circumstances and the conduct  of  the parties.  Now it seems to me that when the Act is so express to provide a wide discretion, meaning, no doubt, to  prevent one man from forfeiting what in fair dealing belongs to some one  else, by taking advantage of a breach from which he  is not  commensurately  and  irreparably  damaged,  it  is  not advisable  to  lay  down any rigid rules  for  guiding  that discretion.  I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of  view from which judges would regard (1)  (1914) 24 I.C. 139. (2)  A.I.R. 1928 Mad. 250. (3) [1912] A.C. 623. 1027 an  application  for  relief.  But I think it  ought  to  be distinctly  understood that there may be cases in which  any or all of them may be disregarded.  If it were otherwise the free  discretion given by the statute would be  fettered  by limitations  which  have nowhere been enacted.   It  is  one thing  to  decide what is the true meaning of  the  language contained in an Act of Parliament.  It is quite a  different thing  to place conditions upon a free discretion  entrusted by  statute to the court where the conditions are not  based upon  statutory enactment at all.  It is not safe, I  think, to  say  that  the court must and will  always  insist  upon certain  things when the Act does not require them, and  the facts of some unforeseen case may make the court wish it had kept a free hand." With  great  respect we think that  the  observations  cited above  contain sound principles of law.  We are,  therefore, unable  to  accede to the contention of  Mr.  Daphtary  that though section 114 of the Transfer of Property Act confers a discretion  on  the court, that discretion except  in  cases where  third  party  interests  intervene  must  always   be exercised  in  favour  of the  tenant  irrespective  of  the conduct  of the tenant.  It is clear that in this  case  the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in court.  Rent has been in arrears at times  for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on  false

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defences.  No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description.   He cannot always be allowed to take advantage of his own  wrong and  to plead relief against forfeiture on  every  occasion, particularly when he was warned by the court of appeal on  a previous occasion.  He had already had relief three times on equitable grounds and it is time that the court withheld its hands and ordered his ejectment.  In this situation the High Court  was fully justified in finding that in second  appeal it would not interfere with the 1028 discretion    of  the courts  below  in  refusing  to, grant relief against forfeiture. The result therefore is that this appeal fails is  dismissed with costs. Appeal dismissed. Agent for  appellant: R.A. Govind. Agent for respondents: Rajinder Narain.