Ross, J.:— This was a claim for minimum royalty from September 1922 to March 1925 on a mining lease executed on 27th March 1922. There has been a decree for minimum royalty for that period; and the case of the appellant is that the lease was determined as from 31st March 1924 and that he is liable for minimum royalty only up to that date.
2. The lease was determined by a notice, dated 24th March 1924 and the learned Subordinate Judge has held, and in our opinion rightly, that the notice is susceptible of no other construction than that it determined the lease. The Subordinate Judge was of opinion, however that notwithstanding the notice the lessor had waived the forfeiture by suing for the rent up to March 1925. But after he had once determined the lease, it was not open to him to waive the forfeiture.
3. Forfeiture is the result of the act of tenant which may be waived by the landlord; but if instead of waiving the forfeiture he determines the lease, as in this case he has clearly done, then no question of waiving the forfeiture remains.
4. The result is that the appeal must be decreed with costs and the decreed for minimum royalty will be limited to the period from September 1922 to 31st March 1924. The plaintiffs will get costs of the lower Courts in proportion to their success.
Fazl Ali, J.:— I agree.
B.V/R.K
5. Appeal allowed.