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 end of 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 16th 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 v. 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. 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 24th May of each year and if any arrears remained due, they should be paid within a further period of three months or by the 24th 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. Billa Tyampu (1910) 20 M.L.J. 944 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. Lakshmi (1911) 21 M.L.J. 960, 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. 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. Baburaya (1912) 23 M.L.J. 715, 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. Handu Shetty (1901) 15 M.L.J. 210 and Mahalakshmi Amma v. Lakshmi (1911) 21 M.L.J. 960 held that they are distinguishable, especially the case in Narayana Kamti v. Handu Shetty (1901) 15 M.L.J. 210 where a period of eight months was allowed as the period of grace.
4. As I have already stated, a different line of thought is discernible from the decision in Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834. In that case Seshagiri Aiyar and Napier, JJ., after an exhaustive consideration of the English and Indian cases and referring to the line of cases discussed by me above, came to the conclusion that Courts in India have power to relieve against forfeiture for non-payment of rent even in cases where a period of grace is allowed for payment by the lease deed and this rule applies equally to a lease for agricultural purposes. Seshagiri Aiyar, J, at page 838, observes as follows:
In Naraina Naicka v. Vasudeva Bhatta (1903) 15 M.L.J. 208 : I.L.R. 28 Mad. 389 it was broadly laid down that if a contract provides 'for days of grace where rent is not paid in time, Courts should not relieve against forfeiture. Nardyana Kamti v. Handu Shetti (1901) 15 M.L.J. 210 is to the same effect. The learned Judges seem to suggest that the English decisions are distinguishable inasmuch as ordinarily days of grace are not provided in lease deeds executed in England. Our attention has been drawn by Mr. Sitarama Rao to the forms of lease deeds printed in Woodfall on Landlord and Tenant which give days of grace (see page 1069). Apart from this, I fail to see on what principle the insertion of such a clause should be held to disentitle the tenant from equitable relief. The observations of that great jurist, Story are particularly applicable to such carefully designed provisions. I think the true principle is that which Ramakrishna v. Baburqya (1912) 23 M.L.J. 715, enunciates.
Napier, J., also comes to the same conclusion. In the opinion of Seshagiri Aiyar, J., a hard and fast rule that a contract providing for days of grace ought to be enforced strictly is not calculated to advance justice; and the learned Judge instanced other cases where relief was given against forfeiture under similar circumstances. It was also observed that the earlier cases of this Court, viz., Kottal Uppi v. Edavalath Thathan Nambudiri (1871) 6 M.H.C.R. 258 and Subbaraya v. Krishna (1882) I.L.R. 6 Mad. 159, took a view favourable to the J tenant.
5. In Narayana v. Kashappayya (1915) 32 I.G. 526, Napier and K. Srinivasa Aiyangar, JJ., laid. down that as between landlord and tenant, a Court has a discretionary jurisdiction to relieve against forfeiture of tenancy in all proper cases, whether days of grace are allowed or not in the lease deed. The learned Judges followed the decision in. Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834 and declined to be bound by the earlier decisions, such as Narayana Kamti v. Handu Shetty (1901) 15 M.L.J. 210, Naraina Naicka v. Vasudeva Bhatta (1903) 15 M.L.J. 208 : 28 Mad. 389. 454 and Adhiragi Chetti v. Billa Tyampu (1910) 20 M.L.J. 944. Twelve years later, V.V. Srinivasa Aiyangar, J., in Varanasi Ramabrahmam v. Rami Reddi (1927) M.W.N. 305, took a similar view. In that case the lease deed provided for payment of rent on the 1st March, and in default for 12 per cent. interest till the 1st April, and on further default the document provided that the terms of the lease will be forfeited and the landlord was entitled to re-entry. The lower Court relieved against the forfeiture and Srinivasa Aiyangar, J., held that the decision of both the Courts was correct. Before the learned Judge the earlier cases such as Narayana Kamti v. Handu. Shetty (1901) 15 M.L.J. 210 Naraina Naicka v. Vasudeva Bhatta (1903) 15 M.L.J. 208 : 28 Mad. 389 and others were cited. But he followed the decision in Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834, for coming to the conclusion stated above. The other cases viz., Elagan v. Nanjappa A.I.R. 1925 Mad. 919 and Ramakrishna v. Fernandez A.I.R. 1927 Mad. 239, were also brought to my notice but in those cases there were no days of grace allowed for payment of rent.
6. In this state of the case-law, Mr. Somasundaram presses me to accept the earlier view and discard the later, and for such a procedure reliance is placed by him on the observations of the learned Chief Justice in Seshamma v. Narasimha Rao (1940) 1 M.L.J. 400 : I.L.R. 1940 Mad. 454, where it has been held that a Division Bench in the High Court is the final Court of appeal and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law; and if such a Division Bench does not accept as correct the decision on a question of law of an earlier Bench, the only right and proper course is to refer the matter to a Full Bench. Therefore the learned Counsel argues that the Judges who decided Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834 and Narayana v. Kashappayya (1915) 32 I.C. 526, were bound by the earlier Bench decisions and should not have held a contrary view but should have referred the matter to a Full Bench. It may be that if the principles stated in Seshamma v. Narasimha Rao (1940) 1 M.L.J. 400 : I.L.R. 1940 Mad had been considered to be of such compelling authority in 1915 when Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834 was decided, the learned Judges might have adopted a course which Mr. Somasundaram states is the only proper method. But from the fact that those Judges did not think it necessary to refer the matter to a Full Bench, it does not follow that I should now adopt a course which, according to the appellant's counsel, these learned Judges should have adopted. The decision in Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834, was followed by another Bench in Narayana v. Kashappayya (1915) 32 I.C. 526 and again by a single Judge in Varanasi Ramabrahmam v. Rami Reddi (1927) M.W.N. 305. I have been shown no case subsequent to Tungamma v. Korathi (1912) M.W.N. 1135, where the earlier view has been maintained. It seems to me that the principle enunciated in Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834 is the correct one with which I respectfully agree and since sitting as a single Judge I am bound by Bench decisions of more recent times, I have no other alternative but to follow them.
7. Both the lower Courts have relieved against forfeiture on the defendants depositing the arrears of rent as directed. There is no other point that arises for consideration in these second appeals which are accordingly dismissed with costs-Advocate's fee one set.
8. I do not think that a matter which has been set at rest by the decision in Appayya Shetty v. Mahammade Beari (1915) 29 M.L.J. 381 : I.L.R. 39 Mad. 834 should be re-opened now and therefore leave to appeal is refused.