1. The suit is in ejectment. The defendants are permanent lessees, They denied the title of the landlord, the plaintiff, by a notice dated the 28th August 1905, before the institution of this suit. The District Judge held that the terms of this letter did not create a forfeiture. He was also of opinion that the lessor has done no act to show his intention to determine the lease, and further that the forfeiture had been waived by the lessor suing for the rent subsequent to the data of the forfeiture.
2. Dealing with the last question first, we observe that the prayer was for past and future profits and not for rent, though the rent previously fixed appears to have been taken as the measure of the annual profits But, apart from this, if the forfeiture bad been incurred, we fail to see how the suit for rent could operate as a waiver. If Section 112 of the Tranafer of Property Act applied, the suit in ejectment having been instituted, the second proviso to that section would prevent waiver even from acceptance of the rent. But the lease having been executed long before the Transfer of Property Act the question is whether under the law in force before that Act, the claim for rent in the action for ejectment could operate as a waiver. We are not aware of any authority for holding, where the lease bad determined by the plaintiff's election to treat the lease as at an end, that the claim for rent prosecuted along with a prayer for ejectment could negative the plaintiff's title to seek ejectment,
3. Exhibit GG is the defendant's reply to the plaintiff's notice. It says:
"I do not enjoy any property under you. I am not liable to pay any rent whatever to you, I have never till now paid you any rent whatsoever."
This certainly amounts to a claim of title in the defendants and would therefore work a forfeiture. In our opinion it is not necessary that the denial of the landlord's title should be accompanied by an assertion in terms of the title of the defendant. If the landlord's title be denied, it involves the assertion that the title is either in the defendant or some third person.
4. The question remains whether the lessor had done some act showing his intention to determine the lease. As we have said already, the Transfer of Property Act does not apply to this case, Section 2 Clause (e). Clause (g) of Section 11.1, therefore, has no application. But the principle of that clause has been applied in Venkatramana Bhatta v. Gundarayai (1908) I.L.R. 31 Mad. 403 to a lease-executed before the Transfer of Property Act, In that case there was a mulgeni lease of 1866. There was a clause for re entry on failure to pay rent on the due dates. On default in the payment of rent the plaintiff sued for possession and for arrears of rent. Following the decision in Anandamoyee v. Lakhi Chandra Mitra (1906) I.L.R. 33 Calc. 339, this Court held that the plaintiff has shown no intention to avail himself of the forfeiture and determine the lease, and that, in consequence, ha was not entitled to obtain possession. This was a case in which the forfeiture might have been relieved against on the principle of Section 114 of the Transfer of Property Act. But the Court held that no forfeiture had been incurred under Section 111, Clause (g). The decision in Ananda-moyee v. Lakhi Chandra Mitra (1906) I.L.R. 33 Calc, 339 was one under the Transfer of Property Act. It does not appear to have been brought to the notice of the Court in Venkatramana Bhatta v. Gundaraya (1908) I.L.R. 31 Mad. 403 that the lease under consideration was not governed by the provisions of the Transfer of Property Act, having been executed in 1866. There was consequently no discussion in the Madras case as to the principles applicable to an action in ejectment on the ground of forfeiture of a tenancy created before the Act. We do not therefore feel bound to apply the principle of that decision to the present case.
5. Clause (g) of Section 111 provides that a forfeiture is incurred by a denial of title or by the broach of an express condition providing for reentry, when, in either case, the lessor does an act showing his intention to determine the lease. The lease therefore is not determined by forfeiture before the lessor has done an act showing his intention to determine the lease. As no cause of action accrues to sue in ejectment before the lease has determined, it is impossible to treat the institution of the suit as itself the act necessary for determining the tenancy. But does this rule apply to a lease not governed by the Transfer of Property Act? The forfeiture there was not incurred by the breach of the condition or denial of title coupled with the act of signifying the intention to determine the tenancy- It arose by the breach of the condition which provided for re-entry or by the setting up by the tenant of a title in himself or a third parson. The tenant was not entitled to take advantage of his own wrong and claim any benefit from his own breach of a condition, but the landlord had the right of election which was signified by re-entry or by the doing of some other act showing an intention to put an end to the tenancy But it was not necessary that this election should be anterior to the suit. The principles are well stated in Warvelle on 'Ejectment,' Section 47. "At Common law, however, the condition was not self-executing, but required some action on the part of the grantor, evincing an intention on his part to take advantage of the forfeiture, and, unless he was actually in possession, this was accomplished by a re entry upon the land conveyed. The earlier cases in this country (the United States of America) follow the Common law rule, and announce the doctrine that re-entry for breach of a condition subsequent is necessary to defeat an estate of freehold which has once vested, and that a forfeiture cannot be effected merely by bringing an action for the recovery of possession. Under this doctrine it will be seen that ejectment will not lie until there has been an actual re-entry. But later statutory enactments, defining the character of the action of ejectment and providing for the interests that shall be sufficient to sustain it, have materially altered the old rule by removing much of the reason which occasioned it, and it is no longer necessary that the Common law ceremony of a re-entry shall be performed as a condition precedent to the prosecution of an action to recover possession of lands affected by a forfeiture." In Goodright v. Cator 99 E.R. 304 at p. 309 Lord Mansfield, delivering the judgment of the Court of King's Bench, said: "We have looked very particularly into the cases for two hundred years back, and we find a great deal of contrariety on the question whether an actual entry is necessary in order to maintain an ejectment, on a clause of re-entry, for non payment of rent; but, in the most distant period the better opinion has been that it is not * * * An ejectment being a mere creature of the Court, framed for the purpose of bringing the right to an examination, an actual entry can be of no service." But if an entry was unnecessary, the doing of some unequivocal act which was equivalent to entry such as a demise of the premises to a new tenant or a new demise to a tenant or sub-tenant in possession was deemed to be sufficient. In William and Yates on "jectment," page 68, the learned authors say: "Before the Common Law Procedure Act, 1852, the service of a declaration in ejectment was held to determine the lease. Since that Act the bringing of an action of ejectment was held to be equivalent to an entry and to determine the term." And since the Judicature Acts, Fry, J., said that "an action of ejectment was equivalent to the old entry" (Evans v. Davis (1878) 10 Ch. D. 747 at p. 763. In Jones v. Garter (1846) 71 R.R., p. 800 at p. 807 Baron Parke, delivering the judgment of the Court of Exchequer, said: "We think that the bringing of an ejectment for a forfeiture and serving it on the lessee in possession must be considered as the exercise of the lessor's option to determine the lease." There the lessor served on the lessee a declaration of ejectment for a forfeiture. In a suit for rent due and for breach of certain covenants it was held that the service of the declaration operated as a final election to determine the term, though there had not been any judgment in the ejectment proceeding. In Grimwood v. Moss 7 C.P. 360 where lessors brought ejectment against the tenant on the ground of forfeiture for breaches of covenants which provided for re-entry, it was held that a distraint for rent after commencement of the action and before trial did not operate as a waiver and the plaintiffs were entitled to judgment. In Olough v. London and North-Western Railway Company (1871) 7 Ex. 26 at p, 34 dealing with a case of avoiding a transaction on the ground of fraud, Mr. Justice Mellor, delivering the judgment of the Exchequer Chamber, observed: "The principle is precisely the same as that on which it is held that the landlord may elect to avoid a lease and bring ejectment when his tenant has committed a forfeiture. If with knowledge of the forfeiture, by the receipt of rent or other unequivocal act, he shows his intention to treat the lease as subsisting, he has determined his election for ever, and can no longer avoid the lease. On the other hand, if by bringing ejectment he unequivocally shows his intention to treat the lease as void, he has determined his election, and cannot afterwards waive the forfeiture." In Sergeant v. Nash, Field and Company (1908) 2 K.B. 304, the Court of Appeal held that the issue and service of the writ to recover possession of the premises operated as a final election by the lessor to determine the term. The principle of these cases rests upon the ground that the forfeiture is complete when the breach of the condition or the denial of the title occurs. But, as it is left to the lessor's option to take advantage of it or not, the election was not a condition precedent to the right of action, but the institution of the action was simply a mode of manifesting the election. The same principle has been applied in actions for relief on the avoidance of fraud as in v. London and North-Western Railway Company (1871) 7 Ex. 26 at p. 34 or where a reversioner avoids a lease by a Hindu widow after her lifetime, Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 34 I.A. 87 (See Foa's "Landlord and Tenant", pages 322 and 656). It will be clear on the foregoing review of the authorities that under the law applicable to leases before the Transfer of Property Act, the institution of the action on the ground of forfeiture would itself amount to the manifesting of the intention to determine the tenancy. The defendants in the present action are therefore liable to be turned out of the property.
6. There is a dispute as to the amount of rent which the defendants were liable to pay. The Courts below allowed cash rent at the rate of Rs. 12-4-0 per annum, while the plaintiff claims fifteen. The lease deed provides for an annual rent of Rs. 15 and sundry articles. The Courts below have deducted Rs. 2-12-0, as due to a mortgagee under a judgment--Exhibit J. The plaintiff was no party to the suit of the mortgagee in 1865 in which he was decreed Rs. 2-12-0 out of the rents payable by the defendant's predecessor to the plaintiff's predecessor in interest. It is not stated that the defendant had paid the mortgagee for the suit faslies. The plaintiff is therefore entitled to recover the full rent provided for him under the lease. In reversal of the decrees of the Court below the plaintiff must have a decree for the properties sued for together with profits claimed by him. The defendants will pay the plaintiff's cost throughout.