1. It appears from the plaint and the issues that the suit is for the recovery of rent and mesne profits for Pramadi and Vikrama (April 1879" to end of March 1881) for recovery of the land forfeited by reason of non-payment of the rent since Iswara (1877) and for forfeiture by reason of alienation on 9th October 1877 in execution of the decree in Original Suit 169 of 1877. It appears, therefore, that the non-payment of rent giving rise to the forfeiture, which it is now desired to enforce, is a non-payment distinct from that which formed the cause of action in Original Suit 263 of 1877. Both the old Act VIII of 1859 in Section 71 and the new Act of 1877 in Section 43 require, though in somewhat different language, that the whole of the claim, arising out of the cause of action shall be included in a suit on pain of the plaintiff not being afterwards allowed to bring a fresh suit for the portion of the claim omitted. Had the arrear of rent, upon which the right to insist on forfeiture is based, been the same as that sued for in Suit 263 of 1877, the right to insist on the forfeiture would be a claim arising out of the same cause of action and the defendant might maintain that the suit was barred by the provisions of Act VIII of 1859, Section 7.

2. The plaint, however, shows that the two suits have distinct causes of action in separate accruals of arrears. The first issue is erroneously made to-raise the question of plaintiff's right of forfeiture with reference to the arrears of the years 1874, 1875, and 1876, to which Suit 263 related. But the subsequent arrear was admitted and the real issue being a pure question of law upon the construction of the lease, the error in the statement of the years in the first issue is immaterial.

3. The District Munsif overruled the objection taken by the defendant that the suit was barred by reason of the former suit, on the ground that a claim for land and a claim for mesne profits were distinct causes of action, but the-former suit was not a suit for mesne profits, but for rent. However, for the reasons already stated, the former constituted no bar to the second action. The question, therefore, remains whether the stipulations are, or either of them is, penal and not enforceable.

4. The question is one as to the intention of the parties at the time of the execution of the document, to be determined on the construction of the document and on a view of the attendant circumstances. I think looking at the terms of the agreement, to the effect that the lease was to be forfeited for mere non-payment of rent in any one year together with all right to improvements, (see the counterpart), that there is very strong reason for saying that, if this-stipulation stood alone, it could not be held to have been seriously intended that it should be acted upon, as it would be recognized to be grossly inequitable that improvements should be forfeited together with the lease. There is-not the same ground for saying that the stipulation against alienation was not intended to be enforced, but, I think, it may very well be that the stipulation as to the consequences of non-payment of rent was merely inserted in terrorem, while that as to alienation was intended to be acted upon, as it may be of importance to a landlord that he should not have a tenant thrust upon him.

5. Second Appeal 80 of 1879, to which we were referred, was a case in which, by the very terms of a razinama entered into in compromise of a suit, the defendant was liable to be ejected for non-payment of rent. Not to have held the parties bound by the stipulation would have been to refuse to give effect to the compromise and that case can, therefore, be no authority for the enforcement of such stipulations ordinarily occurring in documents, and Kottal Uppi v. Edavalath Thathan Navibudri 6 M.H.C.R. 258 is an authority for saying that, when, as in the present case, the great hardship of the loss of all right to improvements would follow the enforcement, the proper construction is that an enforcement of the stipulation was not intended by the parties and ought to be relieved against by the Court. With regard to the stipulation against alienation, such stipulations have often been upheld (as in Bebello v-Luis), when the alienation has been voluntarily effected by private sale. Alienation may be the means of making evidence against the landlord's title, and the landlord may have intended by the stipulation to protect himself from such consequences. But does the stipulation extend to an involuntary alienation, under an execution? In Davis v. Eyton 7 Bing. 154 to which we were referred, there was an express stipulation that, in case of the tenant committing. an act of bankruptcy or execution issuing against him, the landlord might re-enter.

6. But that an assignment by operation of law is not per se a breach of a covenant against alienation--Weatherallv. Geering (12 Vesey, 504) maybe quoted as an authority; also Doe v. Garter 8 T.B. 57. In the same case the distinction is taken between an alienation affected involuntarily by process of execution, and a voluntary procuring of execution by the defaulting tenant against himself,, in order to bring about the alienation desired. In this latter case it was held that an alienation so procured was a breach of the covenant. Here the alienation was involuntary and by operation of law. Plaintiff had assigned the decree he had obtained against his tenant for rent, and if, as. appears probable from the assignee proceeding to attach the tenant's interest in the lease, the tenant had no other available property, the plaintiff', when he assigned the decree, must have known that this result would follow. He did indeed give notice, when the property was attached, that he should insist on the forfeiture, but he had already put it in the power of the assignee to proceed as he did to a sale. Now the sole object of the stipulation against alienation being to prevent a stranger being forced upon the jenmi as tenant,, plaintiff might have effected this object by buying in the Mulgaini right himself. And the alienation may thus be regarded not merely as involuntary on the part of the tenant, but brought about with all its attendant mischiefs-intentionally by plaintiff.

7. Apart from this, I think we ought to hold that an alienation, brought about by operation of law, was not within the intention of the covenant.

8. I would refuse to enforce the forfeiture for non-payment of rent, on the ground that the case is on a footing with Kottal Uppi v. Edavalath Thathan Nambudri 6 M.H. C.B. 258, and I would also refuse to enforce it for alienation, on the ground that the alienation was not voluntary and was not within the intention of the parties at the time they contracted.

9. I would reverse the decrees of the Courts below and dismiss plaintiff's suit except as to the rent in arrears with interest for Pramadi. That for Vikrama. was not due at date of plaint and was treated by plaintiff as mesne profits and no other rent was claimed. There should be proportionate costs allowed throughout.

Kernan, J.

10. It is difficult to understand the plaint. It appears to contain contradictory statements. Assuming that this suit is brought on the ground of forfeiture created by non-payment of rent for 1874, 1875, and ,1876, then, no doubt, under Section 7 of the Code of 1859 (which governs the Suit 263 of 1877), the plaintiff could not now sue to recover on foot of the forfeiture arising from non-payment of the rent of 1874, 1875, and 1876. "Mesne profits" in the Code do not mean rents--see Section 2112 Therefore an action for rent and for forfeiture for non-payment of that rent constitutes the whole claim arising out of the cause of action, viz., the non-payment of the rent, and, under Section 7 of the Code, should have been included in the Suit 263 of 1877. Plaintiff, having omitted in that action to make the claim of forfeiture, cannot now maintain a suit on that forfeiture.

11. The first issue was in respect of that forfeiture and not on any forfeiture for rent accrued after 1876.

12. The plaint, no doubt, claims in terms rent for Pramadi and Vikrama, but it is plain the plaintiff did not intend to recognize the defendant as tenant, but intended to treat defendant as a trespasser who had no title. Therefore, it would appear that plaintiff did not claim any rent from the defendant, and his claim made in the plaint is plainly for mesne profits, as referred to in Section 211 of the Code of 1877.

13. Assuming, however, that the true meaning of the plaint is that plaintiff relies on forfeiture created by non-payment of rent after Iswara (1877), I agree that the decree founded on such alleged forfeiture and on the alleged forfeiture on the ground of alienation is wrong for the reasons mentioned by Mr. Justice Innes.

14. The cases of Roe v. Galliers 8 T.E. 133 and Davis v. Eyton 7 Bing. 154 do not apply. There were in those oases special provisions which provided for forfeiture in case of acts done leading to transfer by operation of law. There is no such provision in this case. The alienation intended by the parties is a voluntary alienation.

15. The plaintiff then not being entitled to a decree for possession on the ground of either forfeiture, is he on the suit as framed entitled to any and. what decree ?

16. Though the plaintiff asks in terms for payment of rent, yet the object of the suit is to recover possession and mesne profits- If the plaint is to be taken as one for rent, then the rent claimed as due since Iswara (1877) up to the commencement of the suit was tendered to the plaintiff before suit, and was afterwards lodged in Court by the defendant. It does not appear, therefore, that there was any neglect or refusal by the defendant to pay rent; and consequently there was no forfeiture. On that ground, I think, the suit should have been dismissed with costs.

17. Even if the rent was in arrears and a forfeiture had accrued the proper decree would have been that defendant should pay the rent and arrears and costs of suit and, in default of such payment within a very limited number ;of days, possession should be delivered to the plaintiff and the rent and costs be paid by the defendant. This is consistent with Kottal Uppi v. Edavalath Thathan Nambudri 6 M.H.C.R. 258, and is the course in Bombay--see Timmarsa Puranik v. Badiya Kuppagudu 2 Bom. H.C.E. 66. A similar course is directed by the Transfer of Property Act, 1882, Section 114, in cases of forfeiture for non-payment of rent to which that Act may apply.

18. I agree that the decrees of the Lower Courts should be reversed and the suit dismissed with costs. The money lodged in Court by the defendant, if drawn out, is to be credited to the rent.

In suits for land, Court may decree payment of mesne profits with interest.

1 Suit to include the whole claim. Relinquishment of part of claim.

[Section 7: Every suit shall include the whole of the claim arising out of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.. If a plaintiff relinquish or omit to sue for any portion of his claim, a suit for the portion so relinquished or omitted, shall not afterwards be entertained.] 2[Section 211: Where the suit is for land or other property yielding rent or other profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or until the expiration of three years from the date of the decree (whichever event first occurs)," with interest thereupon at such rate as the Court thinks fit.

Explanation.--Mesne profits' of property mean, those profits which the person in wrongful possession of such property actually received, or might with ordinary diligence have received, therefrom.]