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Attorney(S)
  • S.C.Jain
  • M.S.Narain
Judges
  • Mr. Prakash Narain Singhal
Acts
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Citation Codes
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Attorney(S)
  • S.C.Jain
  • M.S.Narain
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  • Mr. Prakash Narain Singhal
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff Smt. Kastoori Bai was the lessor of a shop let to defendant Sangatmal at a monthly rent of Rs. 10. The tenancy began on March 25, 1957. It is admitted that rent was paid up to December 24, 1960 (paid on December 29, 1960) and no rent was paid thereafter for the month due on January 25, 1961. The plaintiff served a written notice (Ex. 2) on May 27, 1961 (received by the defendant on May 29, 1961) terminating the tenancy for non-payment of rent. The defendant paid Rs. 50 on June 1, 1961 (on account of arrears up to May 24, 1961) and paid a further Rs. 20 on August 2, 1961 (bringing payment up to July 24, 1961).

The plaintiff instituted the suit for eviction and recovery of damages on July 28/29, 1961. The trial court found that the defendant had defaulted in payment and that the notice was not waived, and it decreed eviction and recovery of damages. The District Judge of Pali dismissed the first appeal on January 4, 1968. The defendant (after his death his legal representatives were brought on record) has preferred this second appeal against the District Judge's judgment and decree.

Legal Issues Presented

  1. Whether the tenancy was forfeited for non-payment of rent in terms of clause (g) of Section 111 of the Transfer of Property Act, and if so, on what date that forfeiture was consummated.
  2. Whether the plaintiff, by accepting sums of money (Rs. 50 on June 1, 1961 and Rs. 20 on August 2, 1961), waived any forfeiture or the notice of termination (i.e., application of Sections 112 and 113 of the Transfer of Property Act).
  3. Whether the authorities and precedents cited by the appellants (including Manicklal Dey Chaudhuri, Ram Dayal, and Chote Mia) support the contention that acceptance of rent after the relevant dates operated as a waiver of forfeiture or notice.
  4. Ancillary relief: whether, if eviction is decreed, the defendant should be granted time (four months was requested) to surrender vacant possession.

Arguments of the Parties

Appellants' (Defendant's) Arguments — as presented through Mr. Narain

  • The tenancy stood forfeited when the defendant failed to pay the rent due on January 25, 1961 (the month after December 24, 1960), because the rent-note (Ex. 1) provided for lessor's re-entry on breach.
  • Once forfeiture had occurred on January 25, 1961, the plaintiff's subsequent acceptance of Rs. 50 on June 1, 1961 amounted to waiver of forfeiture under Section 112 of the Transfer of Property Act.
  • Alternatively, because the notice (Ex. 2) purportedly terminated the lease after the expiry of one month, the plaintiff's acceptance of Rs. 20 on August 2, 1961 (for rent up to July 24, 1961 — i.e., after the expiry of the notice) amounted to a waiver of the notice under Section 113 (and illustration (a) thereto).
  • Relied on authorities said to support waiver by acceptance of rent: Manicklal Dey Chaudhuri v. Kadambini Dassi (AIR 1926 Cal 763), Ram Dayal v. Jawala Prasad (AIR 1966 All 623), and Chote Mia v. Mst. Sundri (AIR 1945 Pat 260).
  • Finally, the appellants sought a four-month period to deliver vacant possession in view of the long-standing tenancy.

Respondent's (Plaintiff's) Position — as reflected in the record

  • The plaintiff alleged that the defendant had become a defaulter after payment up to December 24, 1960 and that, after serving notice terminating the tenancy, the defendant did not vacate; the plaintiff sued for eviction and damages.
  • The plaintiff maintained that the notice was not waived and that acceptance of payments did not constitute waiver of the forfeiture under Section 112 because the notice (and thus the forfeiture under Section 111(g)) had effect only from the giving of the written notice.
  • In the appeal proceedings, Mr. Jain (for the respondent) agreed to the appellants being given four months to vacate, if the appeal failed — indicating no contest to that limited extension.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Manicklal Dey Chaudhuri v. Kadambini Dassi, AIR 1926 Cal 763 Authority dealing with waiver of notice to quit and acceptance/withdrawal of rent (considered under Section 113 of the Transfer of Property Act in that case). The court held this case distinguishable because it was decided under Section 113 and its reasoning was considered and disapproved in Navnitlal Chunilal v. Baburao (AIR 1945 Bom 132). The present Court found Manicklal's reasoning not applicable to the Section 111(g)/112 question in this case.
Ram Dayal v. Jawala Prasad, AIR 1966 All 623 Authority that followed Manicklal's approach (related to waiver by acceptance of rent). The court treated this decision as dependent on Manicklal's reasoning and therefore not separately influential; it did not rely upon this case to support appellant's contentions.
Chote Mia v. Mst. Sundri, AIR 1945 Pat 260 (Full Bench) Decision on forfeiture prior to the Transfer of Property (Amendment) Act, 1929; relevant to historical understanding of forfeiture doctrine. The court noted this was a pre-amendment decision and therefore not helpful because the 1929 amendment inserted the crucial requirement that the lessor "gives notice in writing" to the lessee. The court concluded Chote Mia could not assist the appellant.
Sahib Din v. Gauri Shankar, AIR 1940 Oudh 92 Considered as supporting the view that acceptance of payments after the written notice (i.e., after forfeiture under clause (g)) does not necessarily amount to waiver of the forfeiture. The court relied on this decision to support the conclusion that the plaintiff's acceptance of Rs. 50 on June 1, 1961 did not amount to waiver of forfeiture because the notice constituting forfeiture had already been given on May 27, 1961.
Navnitlal Chunilal v. Baburao, AIR 1945 Bom 132 Authority which considered and disapproved the reasoning of Manicklal's case. The court cited this decision to justify rejecting Manicklal's reasoning as an appropriate precedent for the issues under Sections 111(g)/112 and to support the distinction drawn between the present case and Manicklal.

Court's Reasoning and Analysis

The court's reasoning proceeds from statutory interpretation of Sections 111(g) and 112 (and consideration of Section 113) of the Transfer of Property Act and application of the facts as admitted in the record.

  1. Interpretation of Section 111(g):

    Section 111(g) prescribes that a lease may be determined "by forfeiture" where (1) the lessee breaks an express condition providing for the lessor's re-entry and (2) the lessor "gives notice in writing to the lessee of his intention to determine the lease."

    The court emphasized that both elements must be satisfied for forfeiture under Clause (g) to be complete: there must be (i) a breach of an express re-entry condition and (ii) a written notice of intention to terminate given by the lessor. Forfeiture is thus a unilateral option of the lessor but is not complete until exercised by written notice.

  2. Application to the facts:

    The defendant failed to pay rent due for the period January 25, 1961 (breach of the rent-note). That breach satisfied the first requirement of Clause (g) on January 25, 1961. However, the written notice terminating the tenancy (Ex. 2) was given only on May 27, 1961 and reached the defendant on May 29, 1961. Therefore, the court concluded that the forfeiture was not complete until that notice was given/received (i.e., not as early as January 25, 1961).

  3. On waiver under Section 112:

    Section 112 provides that a forfeiture under Section 111(g) is waived by acceptance of rent which has become due since the forfeiture or by other acts showing an intention to treat the lease as subsisting.

    The court held that because the notice constituting the exercise of the lessor's option to forfeit was given on May 27, 1961, the plaintiff's acceptance of Rs. 50 on June 1, 1961 (which was on account of rent up to May 24, 1961) could not be treated as acceptance of rent "which has become due since the forfeiture." Accordingly, acceptance of the Rs. 50 did not amount to waiver of the forfeiture under Section 112. The court relied on Sahib Din v. Gauri Shankar in support of this view.

  4. On reliance upon authorities cited by appellants:

    The court found Manicklal (AIR 1926 Cal 763) to be distinguishable because it was decided under Section 113 and related to different factual/legal questions (withdrawal or acceptance of rent and waiver under Section 113). The court further noted that Manicklal's reasoning had been considered and disapproved in Navnitlal Chunilal v. Baburao (AIR 1945 Bom 132). Ram Dayal (AIR 1966 All 623) followed Manicklal and thus did not assist the appellant. Chote Mia (AIR 1945 Pat 260) was a pre-amendment Full Bench decision and therefore of little assistance after the 1929 amendment which added the written notice requirement to Clause (g).

  5. On the Section 113 argument (waiver by acceptance after expiry of notice):

    The court noted that Ex. 2 was a composite notice under clauses (g) and (h) of Section 111. Even if Section 113 could be invoked in some circumstances, any possible waiver under Section 113 could not revive or save a lease already determined by forfeiture under Section 111(g). Additionally, the defendant had not pleaded — and there was no evidence to establish — that the plaintiff's acceptance of Rs. 20 on August 2, 1961 showed an intention to treat the lease as subsisting. In the absence of a plea and supporting evidence, the argument based on Section 113 could not be entertained.

  6. Disposition as to relief:

    The court concluded that the trial court and the District Judge were correct in upholding the plaintiff's claim for eviction and damages. While dismissing the appeal with costs, the court exercised its discretion to grant the appellants four months from the date of the judgment to deliver vacant possession of the shop (with the respondent's counsel agreeing to this extension in the proceedings).

Holding and Implications

Holding: Appeal dismissed with costs.

Direct consequences and practical implications:

  • The decrees of the courts below (trial court and District Judge of Pali) in favour of the plaintiff — for eviction of the defendant from the shop and recovery of damages for use and occupation — are affirmed by this judgment.
  • The appellants (legal representatives of Sangatmal) are granted a period of four months from the date of this judgment to deliver vacant possession of the shop to the respondent.
  • The court rejected the appellants' contentions that (a) the tenancy was forfeited as of January 25, 1961 in a manner that made subsequent payments a waiver under Section 112, and (b) that acceptance of subsequent payments operated as a waiver under Section 113; the court held that the written notice given on May 27, 1961 was the operative act effecting forfeiture under Section 111(g), and that the payments accepted thereafter did not amount to waiver.

Broader precedent: The opinion explains statutory interpretation of Sections 111(g) and 112 and distinguishes reliance on earlier decisions that arose under different statutory provisions or pre-amendment law. The judgment does not purport to establish a novel legal principle beyond its application of the statutory language and distinguishing authorities; its practical effect is to affirm the eviction decree and allow a limited period for surrender of possession.

End of summary — all statements above are drawn exclusively from the provided opinion text.

Show full summary ...

    Mst. Koti Bai And Others v. Mst. Kastoori Bai .

    1. As the two courts below have decreed the plaintiffs suit for the recovery of arrears of rent and eviction, the defendants have filed this appeal against the judgment and decree of the District Judge of Pali dated January 4, 1968. It is admitted that defendant Sangatmal was a tenant of plaintiff Smt. Kastoori Bai in a shop which carried a monthly rent of Rs. 10. The plaintiff filed the present suit with the allegation that the said Sangatmal paid the rent only up to December 25, 1960 and he became a defaulter thereafter. When a notice of termination of the tenancy was given by the plaintiff, the defendant, it is alleged, made a payment of Rs. 50 on account of the arrears up to May 24, 1961, but did not vacate the shop. The present suit was therefore instituted for his eviction and recovery of damages on July 28, 1961. Thereafter the defendant made a further payment of Rs. 20 on August 2, 1961. He admitted the tenancy but denied the defaults. He pleaded that the notice was waived by the plaintiff. Five issues were framed in the trial court dealing with these and the other defences. That court upheld the plaintiffs plea regarding the defaults made in the payment of the rent and rejected the defence of waiver. It therefore decreed the suit for eviction as well as recovery of damages for the continued use and occupation of the premises. An appeal was taken to the District Judge of Pali, and as it has been dismissed by the impugned judgment, the legal representatives of defendant Sangatmal, who were brought on the record in the trial court on his death, have preferred this second appeal.

    2. Before considering the arguments of the learned counsel for the appellants, it will be convenient to state the admitted facts regarding the payment of the rent. It is admitted that the tenancy commenced from March 25, 1957. It is also admitted that on December 29, 1960, defendant Sangatmal paid off the rent up to December 24, 1960. No rent was paid thereafter, and the plaintiff gave notice Ex. 2 to defendant Sangatmal on May 27, 1961, which reached him on May 29, 1961, stating that as he had not paid the rent and had become a defaulter the plaintiff did not want to keep him as a tenant and that she had decided to terminate his tenancy on the expiry of the period of one month. On receipt of that notice, the defendant paid Rs. 50 on June 1, 1961 on account of the arrears of rent up to May 24, 1961. The plaintiff, however, instituted the Present suit on July 29, 1961. The defenant thereafter made a payment of Rs. 20 on August 2, 1961 and in that manner no paid the rent up to July 24, 1961.

    3. It has been argued by Mr. Narain, learned counsel for the appellants, that the tenancy stood forfeited when Sangatmal failed to pay the rent in terms of the rent-note (Ex. 1). According to the learned counsel, this default occurred on January 25, 1961 because of the fact that the defendant did not pay the rent which fell due on that date for the period from December 24, 1960 to January 24, 1961. On the basis of this submission, it has further been argued that as the plaintiff accepted the payment of Rs. 50 as rent on June 1, 1961, after the forfeiture of the tenancy, she waived the forfeiture in terms of Section 112 of the Transfer of Property Act. The learned counsel has placed reliance on Manicklal Dey Chaudhuri…Plaintiff; v. Kadambini Dassi…Defendant., AIR 1926 Cal 763, Ram Dayal…Defendant v. Jawala Prasad…Plaintiff ., AIR 1966 All 623 and Chote Mia v. Mst. Sundri, AIR 1945 Pat 260 (FB), in support of his argument.

    4. The learned counsel for the appellants has thus tried to base his argument on the provisions of Sections 111(g) and 112 of the Transfer of Property Act, but, as I shall presently show, the argument is untenable.

    5. Section 111 enumerates the various modes for determination of a lease of immovable property, and clause (g) of that section prescribes that such a lease may be determined by forfeiture. The relevant provision is to the following effect,—

    “111A lease of immoveable property determines,

    (a)…………………..

    (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or (2)……………………………………….. or (3) …………… ……………..and in any of these cases the lessor or his transferor gives notice in writing to the lessee of his intention to determine the lease.”

    6. It would thus appear that while “forfeiture” is one of the prescribed modes for the determination of a tenancy, it is necessary to constitute forfeiture, that (i) there should be a breach of an express condition of the lease which provides for the lessor's re-entry and (ii) the lessor should give a notice in writing to the lessee of his intention to determine the lease. There can thus be no forfeiture within the meaning of the aforesaid Cl. (g) of S. 111 unless both these requirements are fulfilled. The reason is that forfeiture only makes a lease voidable at the option of the lessor, and it is for him to avail of that option or to waive it and allow the lease to subsist. The option is however unilateral, for it depends on the choice or decision of the lessor, and this is why it is necessary that there should be something to show that he had exercised his option to forfeit the tenancy before the tenancy can be said to be terminated. It is for this reason that it has been provided in Cl. (g) that the lessor should give a notice in writing to the lessee of his intention to terminate the lease if he wants to put an end to it.

    7. The question therefore is whether these requirements of Section 111(g) have been fulfilled in the present case and, if so, on what date. As has been stated, the defendant's was a monthly tenancy. He paid the rent up to December 24, 1960, ut did not pay it for the subsequent month on January 25, 1961. There was therefore a breach of the terms of the tenancy, contained in rent note Ex. 1, which expressly provided for the lessor's right of re-entry in such an eventuality. One requirement of Clause (g) was therefore fulfilled on January 25, 1961 and the lessor was entitled to reenter by terminating the lease on account of the forfeiture. But “forfeiture” within the meaning of Clause (g) could not be said to be complete on January 25, 1961 because the lessor had not given a notice in writing on that date to the lessee of his intention to determine the lease. Such a notice was given on May, 27, 1961 and it reached the defendant on May 29, 1961. There was therefore no completed forfeiture until after that notice.

    8. It is true that the plaintiff accepted the payment of Rs. 50 on June 1, 1961 as arrears of rent upto May 24, 1961, but he could not be said to have waived the forfeiture for that reason. Section 112 of the Transfer of Property Act which deals with waiver of forfeiture, reads as follows:—

    “112.A forfeiture under Section 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the part of the lessor showing on intention to treat the lease as subsisting. Then follow two provisos to the section which need not be reproduced as it is admitted that they have no bearing on the present controversy. So as the plaintiff accepted the payment of Rs. 50 on June 1, 1961 on account of the rent upto May 25, 1961, he could not be said to have accepted any rent which had become due since the forfeiture because the forfeiture under Clause (g) of Section 111 occurred on the giving of the notice on May 27, 1961. There is therefore no force in the argument that there was a waiver of the forfeiture on the part of the plaintiff. I am fortified in this view by the decision in Sahib Din v. Gauri Shankar, AIR 1940 Oudh 92.

    9. The cases cited by Mr. Narain are easily distinguishable. AIR 1926 Cal 763, was a case which fell under Section 113 of the Transfer of Property Act. The plaintiff in that case was a tenant from the superior landlord of the premises and the defendant was his sub-tenant. It was pleaded in the plaint that a notice was given to the subtenant on June 11, 1924 to vacate the premises on July 17, 1924 and the suit was filed on August 25, 1924, when he failed to vacate the premises. As Buck land J., stated in the case, the only question for consideration was whether or not the notice to quit had been waived by the withdrawal of the rent from the Rent Controller after the suit had been filed.

    10. The learned Judge addressed himself to the provisions of Section 113 of the Transfer of Property Act and held that as the plaintiff had withdrawn the rent after the suit had been filed, he had waived the notice, and in reaching this conclusion he took note of the fact that while the second proviso to Section 112 made it clear that where rent was accepted after the institution of a suit to eject the lessee on the ground of forfeiture such acceptance would not be a waiver of the notice, no such provision had been made in Section 113 which dealt with the waiver of the notice to quit. It would thus appear that the point for consideration in that case was quite different, and the decision has no real bearing on the question of the forfeiture of the tenancy in the present case. Besides, if I may say so with respect the reasoning in Manicklal's case, AIR 1926 Cal 763, was considered and disapproved in Navnitlal Chunilal v. Baburao, AIR 1945 Bom 132, for very good and adequate reasons. AIR 1966 All 623, was decided on the basis of Manicklal's case, AIR 1926 Cal 763, and it is not necessary to refer to it separately.

    11. AIR 1945 Pat 260 is a Full Bench decision of their Lordships of the Patna High Court. But it related to the period before the coming into force of the Transfer of Property (Amendment) Act, 1929 (No. XX of 1929). It was by that amendment that the crucial wordings “gives notice in writing to the lessee” of his intention to determine the lease, were added in Clause (g) for the purpose of removing all doubts regarding the meaning of the clause by making it quite clear that forfeiture of a lease would not be complete without such a notice. Chotu Mia's case, AIR 1945 Pat 260, cannot also be of any help to the appellant.

    12. There is thus no force in the first argument of the learned counsel for the appellants.

    13. It has next been argued by Mr. Narain that the plaintiff gave the notice (Ex. 2) on May 27, 1961 terminating the lease after the expiry of one month, but he accepted the payment of Rs. 20 on August 2, 1961 as arrears of rent upto July 24, 1961 i.e, for the period after the expiry of the notice, and that the notice was therefore waived within the meaning of Section 113 of the Transfer of Property Act. He has invited attention to illustration (a) to that section in support of his argument. There is, however, no force in this argument also. It is admitted that notice Ex. 2 was a composite notice under Clauses (g) and (h) of Section 111 of the Transfer or Property Act. So even if there was any waiver under Section 113, that could not save the lease because it had been determined by forfeiture under clause (g) of Section 111.

    14. Moreover it is admitted by Mr. Narain that the defendant did not take the plea that by accepting the payment of Rs. 20 the plaintiff had an intention to treat the lease as subsisting. In the absence of such a plea, it is not permissible for the learned counsel to argue that there was a waiver of the notice under Section 113 for if such a plea had been taken, it would have been decided on the basis of the evidence of the parties. As it is, it is admitted that there is no evidence on the record to justify such an argument.

    15. Mr. Narain has lastly prayed that in view of the old tenancy, the defendant may be given four months' time to deliver vacant possession of the suit shop, Mr. Jain has agreed to this request. While, therefore, the appeal fails, and is dismissed with costs, the appellants are allowed a period of four months from to-day to deliver vacant possession of the shop to the respondent.

    SSG/D.V.C

    16. Appeal dismissed.

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    Comments

    Mst. Koti Bai And Others v. Mst. Kastoori Bai .
    (Sep 27, 1968)