JUDGMENT

Sadasiva Aiyar, J. — The plaintiff is the appellant. He purchased the plaint village of Bojinaickanpatti (or Posinaickanpatti) from Narasimhalu Naidu who acted on behalf of himself and his brother. They made the said sale as Mittadars in 1901 under Exhibit III. Plaintiff had formerly brought a suit for rent against the defendants who had obtained a Kayam Saswatham lease in 1839 from the original mittadars. That suit for rent was O. S. No. 988 of 1914. In that suit, the defendants (the kayam saswatham lessees) denied that the plaintiff was the owner of the mitta and denied also the title of the plaintiff's vendors, Narasimhalu Naidu and his brother, to sell the property to the plaintiffs. They set up the title of Venkatarama Naidu (the father of the plaintiff's vendors) who had parted with his rights in favour of his sons in 1897. The 1st Court decreed that suit of 1904 brought for rent overruling the lessees' objections and establishing the title of the plaintiff as landlord. The lessees appealed, denying again in the Appellate Court the plaintiff's title as landlord and continued such denial notwithstanding that Venkatarama Naidu (the father of the plaintiff's vendors who had been made a party to the suit) mentioned in an application made to the Appellate Court that he did not want any longer to contest the plaintiff's title in that particular suit and his name was thereupon removed from the record on his expressing the intention of putting an end to the plaintiff's title afterwards by instituting a future suit for cancellation of the deed executed by him in favour of his sons. The lessees failed in the appeal also and yet they preferred a second appeal again denying the plaintiff's title as landlord. On these facts and also on the allegation that before the filing of the present suit in ejectment (on the ground of forfeiture by denial of the landlord's title by the defendants), the plaintiff sent a notice to the defendants on the 25th January 1908 requiring them to deliver up possession of the village, the plaintiff instituted the present suit for possession.

The defendants set up that the plaintiff's two brothers not having joined him in the suit, the suit was bad for non-joinder; that the plaintiff's purchase was bad for champerty and maintenance; that the defendants had a permanent lease right and that no notice of intention to take advantage of the alleged forfeiture was given in 1908 as alleged by the plaintiff.

The District Munsif held on a construction of the Kayam lease deed (Exhibit I of 1839), that it did confer a permanent heritable right on defendants' predecessor-in-title. He, however, decided that the defendants incurred forfeiture of that right of permanent tenancy by their denials of the plaintiff's title as their landlord not only in the written statement in the former suit in the First Court but also by their denials in the District Court and the High Court. He states in the 10th paragraph of his judgment that “there was a clear and mala fide denial of plaintiff's title in the District Court and also in the High Court and that there was a forfeiture.” He further found that the plaintiff had given the notice, Exhibit K, insisting on the forfeiture. The learned District Munsif was further of opinion that no notice to quit was necessary under the circumstances because, (I take it) the Transfer of Property Act was not applicable to the rights and conditions of the lease, Exhibit I, created in 1839. As regards non-joinder of plaintiff's brothers, one of them as plaintiffs' witness denied that plaintiff's brothers had any right. This contention of defendants though thus patently frivolous was persisted in in the appeal memorandum.

On appeal, the learned Subordinate judge agreed with the District Munsif in holding that the kayam lease-deed, Exhibit I, conferred a permanent heritable right. On the other question, viz., the question of forfeiture, however, he held that as the defendants did not attorn to the plaintiff after the purchase of the mitta village by the latter in 1901, the denial by the defendants of the plaintiff's title as landlord did not work a forfeiture. As regards the question whether their denial was bona fide or not, he does not give any definite finding except that the denial at the time of the written statement in the First Court in the former suit may not have been mala fide. The Subordinate Judge admits that the defendants made an unsuccessful attempt before the plaintiff's purchase to buy the property themselves from Narasimhalu Naidu and his brother and he also admits that the defendants “attempted to attack the plaintiff's right” as mittadar of this village in a suit instituted by them against the plaintiff and others. We observes “that these two facts can never be said to be recognition of the plaintiff's title.” So far as the first fact is concerned, it may not be a recognition of the plaintiff's title though it was clearly a recognition of plaintiff's vendor's title. As regards the second fact (see Exhibit D, which is an application by defendants for attachment of plaintiff's right as mittadar), I am wholly unable to understand the Subordinate judge's observation that it is not a recognition of plaintiff's title. As regards the notice, Exhibit K, the Subordinate Judge does not give any finding as to whether it was sent by the plaintiff or not. He however found in para. 15 of his judgment that such a notice was not necessary, if a forfeiture had been incurred.

In this Second Appeal, the questions which have been argued before us are: (1) whether the lease-deed, Exhibit I, conferred a permanent heritable right or only a right during the lifetime of the grantee, (2) whether there have been several denials of the plaintiff's title during the course of the former suit of 1904, (3) whether any or all of those denials entailed a forfeiture of the tenancy, (4) whether any notice showing an intention to take advantage of the forfeiture was necessary, even after such denials, as a pre-requisite for the maintainability of this suit and (5), whether the notice, Exhibit K, was really given. So far as the first point is concerned, I do not think it is necessary to give any final decision though it should not be thought that I agree with the Lower Courts in their construction of Exhibit I. If the matter were res judicata, I might probably have agreed with them. But having regard to the cases in Rajaram v. Narasinga(1), Venkataramanna v. Venkatapathi(2), and Foulkes v. Muthusami Goundan(3), I am not sure whether the question is not concluded by authority in favour of the restricted right of the grant as merely a grant for the lessee's lifetime. However, as I said, it is unnecessary to express any final opinion on that point for the decision of this case.

Assuming that Exhibit I created a permanent heritable tenancy, it is clear that even such a tenancy can be forfeited by a denial of the landlord's title. See C. Rama Aiyangar v. Anga Gurusami Chetti(4) and Kally Dass Ahiri v. Monmohini Dassee(5). It was argued for the respondents that a denial of a derivative title can in no circumstances work a forfeiture and the case in Doorga Kripa Roy v. Sree Janoo Lathak and others(6) was relied upon. That case was quoted in C. Rama Aiyangar v. Anga Gurusami Chetti but was dissented from and I respectfully adopt the reasoning in the judgment in C. Rama Aiyangar v. Anga Gurusami Chetti on this point.

So far as the question of denials in the former suit is concerned, there can be no hesitation on a perusal of the records of the former suit (Exs. A, B, C, II, IV, XIV) in holding that the lessees denied the plaintiff's title on different occasions, and in each of the Courts through which that litigation passed, and so far as the Court of Appeal and the Court of Second Appeal are concerned, such denial could not have been bona fide. If a tenant honestly doubtful and not intending to identify himself with a third party who sets up a title in himself against the real landlord, merely puts his alleged derivative landlord to the proof of the latter's title before the tenant would recognise him as such, such conduct may not work a forfeiture of the tenancy and may not constitute such a disclaimer of the title of the landlord as would work a forfeiture. But it is impossible to hold, having regard to the defendants' conduct both in the former suit and in this suit, that the defendants did not intend to disclaim the plaintiff's title and their tenancy under the plaintiff but merely in good faith wanted to have their doubts cleared whether the plaintiff was their legal landlord or whether anybody else was their legal landlord. The question whether there was a denial in Appeal and in Second Appeal in the former litigation was not decided by the Lower Appellate Court in this case but upon the admitted facts there can only be one conclusion and that is that the denial by the defendants was deliberate and malicious and that they did not care whether Venkatarama Naidu still owned the landlord's title or not, their only object being to defeat the plaintiff by all means even after Venkatarama Naidu practically gave up his contest with the plaintiff.

Then the next question is whether a separate act by the plaintiff indicating his intention to act upon the forfeiture is a necessary prerequisite for the maintainability of the suit. It is clear that the Transfer of Property Act does not apply to this lease because the lease was created in 1839 long before the Transfer of Property Act was enacted. I am further of opinion that it is art agricultural lease and on that ground also the Transfer of Properly Act does not apply. The same view has been held in Padmanabhaya v. Ranga and in C. Rama Aiyangar v. Anga Gurusami Chetti in respect of leases prior in date to the Transfer of Property Act. We are therefore thrown back upon the law as it existed before the Transfer of Property Act came into force. That law has been fully considered in the case in C. Rama Aiyangar v. Anga Gurusami Chetti and I agree with the conclusion arrived at therein that where there was a forfeiture by disclaimer of landlord's title, no separate preliminary act on the part of the landlord is necessary to enable him to maintain a suit in ejectment. The case in Venkatramana Bhatta v. Gundaraya quoted for the respondents has been explained in Padmanabhaya v. Ranga and that explanation seems to have been accepted in C. Rama Aiyangar v. Anga Gurusami Chetti also. Assuming however, that notice is necessary, the Munsif found that the plaintiff did send the notice Ex. K. The plaintiff has gone into the box and proved that he sent the notice and had it properly served through his Amin. The 1st defendant's denial is worthless. I see no reason to disbelieve the plaintiff, Ex. K containing the usual endorsement by the person who served the notice that a copy was left with the person who received it. As the Appellate Court has not dissented from the finding of the Munsif on this question and has not given a finding of its own, I think we are entitled to find it ourselves.

In the result, I would reverse the decision of the Lower Appellate Court and restore that of the District Munsif except that the figure for damages Rs. 1,000 mentioned in the Munsif's decree be altered into Rs. 750 at Rs. 250 a year in accordance with the finding of the Lower Appellate Court on that question. The respondents will pay the plaintiff's costs throughout.

Spencer, J.—I agree.

K. V. S.Appeal allowed