Seshagiri Ayyar, J.:— The plaintiff and defendants Nos. 2 to 8 own undivide shares in the property in dispute. Plaintiff is entitled to 150/480th share. Defendants Nos. 2 to 8 are entitled ter the remaining share. On the 26th January 1899, they jointly gave a lease of the entire property to Mr. G.G Arbuthnot for thirty years. The present first defendant is the successor in title of the said lessee. The lease was for quarrying magnesite and chalk. It made the rent due thereunder payable in certain proportions individually to the plaintiff and defendants Nos. 2 to 8. It provided for the keeping of accounts for the weighment of the magnesite and chalk in the presence of the lessors and the lessee, and contained provisions for re-entry and for the forfeiture of the lease on certain contingencies. The plaintiff complains of the branch of three covenants (see paragraph 5 of the plaint) and prays that it may be declared that the lease had terminated, and for possession of either the entire property or the share of the plaintiff. The first defendant denied that he failed to fulfil any of the conditions. He admits in paragraph 13 of his written statement that a certain sum of money is still due to the plaintiff. The other defendants remained ex parte.
The Munsif upheld the plaintiff's contention and decreed possession of the plaintiff's share. The District Judge on appeal has reversed that judgment.
The first question argued by Mr. T. Rangachariar for the appellant is that the District Judge's view that one only of the lessors is not competent to maintain a suit in ejectment is not the law in this Presidency. In Sri Rajah Simhadri Appa Rao v. Prattipati Ramayya(1) and in Korapalu v. Narayana(2), this High Court held that one of the several tenants-in-common can sue to recover possession of his share from the joint lessee. Ebrahim Pir Mahomed v. Cursetji Sorabji Desitre(3), takes the same view. On the other hand the Calcutta High Court in a long course of decisions maintains the position that all the co-owners must sue together. Having regard to this conflict of authorities, and to the guarded language used by Mr. Justice Saneaban Nair in Sri Rajah Simhadri Appa Rao v. Prattipati Ramayya we had the question fully argued before us. It was contended that under the English law, it is open to a tenant-in-common to sue for the recovery of his share of the land demised, and that there is nothing in the statute law of this country which, restricts such a right. The view maintained by jurists that “joint tenants are seized per my et per tout (by the half, or moiety, and by all)” has been commented upon in the note to Murray v. Hall, and its limitations have been explained. It is said in English books that the right to bring separate suits is due to the conception that it is a concession to the lessee that he should be allowed to take a joint lease, and that by the mere fact of joining in the lease, the several owners are not debarred from enforcing their individual rights. It is not necessary to cite all the English authorities which recognize the rights of a tenant-in-common to sue to recover his share of the holding, demised. They are collected together in Code of Ejectment, page 236. See also Williams on the Law of Ejectment, page 194. Freeman in his book on Co-tenancy and Partition points; out the distinction in this respect between joint tenants, tenants-in-common or co-parceners. See sections 329, 330, 331 and 341. The general rule is stated to be: “Whenever the title of the co-tenants, as in case of joint tenancy and co-parcenary is joint, the action must also be joint; and whenever, as in tenancy-in-common, such tenant is deemed to possess a separate and distinct estate, the remedy of each must be distinctly and separately pursued.” An exception even in the case of several tenants has been maintained from the earliest times to the effect that “where the thing to be recovered in a real or mixed action is entire, there of necessity, tenants-in-common must join.” That is the reason for the distinction in this respect between actions for the recovery of real and of personal property.
There can be no doubt that the rights possessed by the members of a Muhammadan family in an intestate's estate are that of tenants-in-common. As was pointed out by the Judicial. Committee of the Privy Council, there is no presumption of joint tenancy in this country except in the case of co-parceners under the Hindu law—Jogeswar Narain Deo v. Ramachandra Dutt Therefore, unless there is something in the conditions of this country which warrants a departure from the principles applicable to tenants-in-common both in England and in America, we must hold that the plaintiff in entitled to sue for his aware. On the other hand, we find that the rule of law as obtains in England is accepted by the legislature in this country in sections 37 and 109 of the Transfer of Property Act. The view of the Calcutta High Court that the English decisions do not apply to India may be traceable to the suggestion thrown out by Mr. Justice Rampini in the course of the argument in Gopal Ram Mohuri v. Dhakeswar Pershad Narain Singh, that under the Bengal Tenancy Act a fractional share-holder is not entitled to maintain an action in ejectment against the joint lessee. So far as we are aware, this principle is not recognized in the tenancy legislation of this Presidency. Nor has our attention been drawn by counsel to any provision to that effect. Mr. Charnier tried to distinguish the Madras decisions on the ground that they are within the strict letter of sections 37 and 109 of the Transfer of Property Act, as in both the cases there was a transfer of the lessor's interests since the demise. We fail to see on what principle the transferee can acquire a better title to sue for the share sold to him than the transferor himself. Our conclusion is, a tenant-in-common is entitled in this Presidency to sue for his share of the properly demised, where a forfeiture has been incurred. Of course this right must be found in the terms of contract. Mr. Charnier contended that Exhibit A contemplates a joint action. The canon of construction regarding forfeiture has not been uniform. Lord Ellenborough said in Goodtitled' Luxmore v. Saville: “In the construction of covenants of this sort they are neither entitled to favour or disfavour, whether they are to create a forfeiture or to continue an estate; but we are to put the fair construction upon them according to the apparent intention of the contracting parties.” Lord Tenterden in Doe D'Davis v. Elsam(4), emphasises that position. He says: “I do not think provisos of this sort are to be construed with the strictness of conditions at common law. These are matters of contract between the parties, and should, in my opinion, be construed as other contracts. The parties agree to a tenancy on certain terms, and there is no hardship in binding them to those terms. In my view of cases of this sort, the provisos ought to be construed according to the fair and obvious construction, without favour to either side.” On the other hand, many other eminent Judges have held that a proviso for re-entry ought to be construed strictly Doe v. Church, Wardens of Rugeby; Doe d. Lyod v. Ingleby. In this country, the legislature inclines in favour of holding provisions as penal even when a definite sum is mentioned as payable in cases of the breach. The aim of law generally is in favour of giving relief against forfeiture. We think the safer course will be to act on the principle that penal provisions providing for re-entry should be strictly construed. Even is this view, we are unable to hold that Exhibit A provides for the institution of a joint action where there has been an-infraction of individual rights. The document has been drawn up by English solicitors and the whole scheme of it suggests that the English doctrine of separate action was in the contemplation of those who drafted the lease deed. We are therefore forced to the conclusion that the general right of individual action is not taken away by the terms of this contract. See the decision in Balambhat v. Vinayak Ganpat Rav.
There is one other consideration which confirms our view that the forfeiture should be enforced if it had been incurred. Under the English Conveyancing. Acts of 1881 and 1892, which were passed with the object of affording relief against forfeiture, one of the exceptions relates to “Covenants in a mining lease to allow the lessor to have access to, or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or workings.”
In he Indian Mines (Act VIII of 1901) there is no provision either in favour of or against forfeiture. The principle of the English rule must therefore ordinarily apply. The reason of the rule is apparently that in a mining lease, the interests of the Government are also in jeopardy. Consequently, it is not a matter depending entirely upon the rights of the actual parties to the contract for this reason also, we must hold that the forfeiture cannot be ordinarily relieved against.
On the merits we are not satisfied with the way the facts have been dealt with by the lower Appellate Court. In the view the learned Judge took of the law, there was no necessity for giving clear and definite findings on the questions of fact involved in the case. As we differ from him on the question of law, it is desirable that the District Judge should be asked to submit revised findings upon the question whether the plaintiff has proved that there has been a forfeiture of the covenants in the lease as alleged by him. He must return findings on issues Nos. 1, 2 and 3 on the evidence on record and also upon the further question to what relief the plaintiff is entitled to within six weeks from this date.
The District Judge has also held that the suit as brought must be construed as one for partition and that the District Munsif had no jurisdiction to entertain it. The relief claimed is to eject the first defendant and to such a suit section?, clause (xi)(cc) of the Court Pees Act, applies. The suit must be held to have been rightly valued and that it was properly instituted in the Court of the District Munsif.
In compliance with the order contained in the above judgment, the District Judge of Salem submitted the following findings:— viz., firstly, that the first defendant had made default in the payment of rent due to the plaintiff, but not in the payment of royalties due to him; secondly, that the first defendant did not give to the plaintiff due notices of weighments; thirdly, that the first defendant did not maintain correct accounts as required by the lease-deed; and fourthly, that the first defendant was entitled to be relieved against forfeiture for non-payment of rent but not against forfeiture for omission to give notices or for not maintaining proper accounts.
This Second Appeal coming on for final hearing after the return of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.
JUDGMENT
We accept the findings, reverse the decree of the District Judge and modify the decree of the District Munsif by adding a direction for partition and delivery of the share of the plaintiff. The respondents will pay the costs of the appellant in this and in the lower Appellate Court.
Solicitors for the respondents—Messrs King and Partridge
K.R