JUDGMENT

Abdur Rahim, J. — The case of the appellant—plaintiff in the suit—was that the defendants were tenants from year to year and that he was entitled to eject them after giving proper notice as required by law. Should it however be held that they have a permanent leasehold right, the appellant claims that the respondents having denied his title have incurred forfeiture and on that ground also they are liable to be ejected. The defendants are transferees of the land from the original grantee under what is called a kayam saswatham patta. The original lessee died long since, and the case of the appellant is that the heirs of the former were holding the land merely as tenants from year to year and that is all the right which the defendants can claim.

There have been several decisions of this Court with respect to kayam saswatham pattas and we are bound by the principles regulating their construction as laid down in those cases. Those decisions applied to kayam saswatham pattas, the well-known ruling of the Privy Council with reference to istemrari mokurari pattas reported in Tulshi Per shad Singh v. Ram Narain Singh in which their Lordships held that though these words have a lexicographical significance of a permanent tenure, having regard however to the trend of the cases in which they have been interpreted in the Calcutta Courts, they have when used without such phrases as “ba farzandan“(including children or descendants) or “naslan bad naslan“(generation after generation), a customary meaning importing only a life interest. The Privy Council also laid down that in construing a patta, the other terms of the instrument, the circumstances under which it has been made and the conduct of the parties may be taken into consideration in order to ascertain whether the grant was intended to be perpetual, inasmuch as those words are not inconsistent therewith, though they do not themselves import that meaning. This decision was first applied in this Presidency in Rajaram v. Narasinga. Its effect was considered in Foulkes v. Muthusami Goundan. where the learned Judges did not express dissent from I.L.R, 15 Mad., 199. The point was again considered recently in Venkataramanna v. Venkatapathi, where his Lordship, the Chief Justice and Mr. Justice Coutts Trotter, though expressing doubts as to the applicability of the ruling in I.L.R, 12 Cal., 117 to Saswatham deeds in this Presidency thought it was too late to go back upon the decision in I.L.R, 15 Mad., 199. As the question relates to the meaning of wards of conveyancing, I agree with the learned Judges that having regard to the decisions in the above mentioned and other cases, we must follow in this Presidency, with reference to kayam saswatham deeds the principle of interpretation enunciated in I.L.R, 12 Cal., 117 with reference to isternrari mokurari pattas.

The Saswatham deed itself is not forthcoming in this case. It was executed as far back as 1840. There is no evidence to show the circumstances under which the lease was granted. But the subsequent conduct of the parties leaves no doubt that the tenure contemplated was of a permanent and heritable character. There have been sales of the tenure both by private treaty and at Court auction in some cases at least for a consideration too large to be likely to be paid merely for a tenancy from year to year and the transfers have been recognised by the landlords. After the original lessee's death, the lease-hold interest was enjoyed by their heirs as of right and no attempt appears to have been ever made to assert that the rights of the original grantees ceased with their lives. For about sixty years one uniform rate of rent has been paid. It was in fact only recently that an attempt has been made to question the permanent character of this estate. On this point therefore I agree with the learned Subordinate Judge.

The next contention of the appellant is that the respondents have incurred forfeiture by denying his title as landlord. In answer, it is first of all urged on behalf of the lessees that their estate being permanent and heritable, the law regarding forfeiture has no application to it. The question was considered by Jenkins, C. J., in Kally Dass Ahiri v. Monmohini Dassee where he negatived the lessees' plea, holding that even to a permanent lease the general rule relating to forfeiture applied. He pointed out that Sect. III of the Transfer of Property Act, read along with the definition of a lease in Sect. 105, applies to permanent leases as well. He further held that such leases granted before the Act were also governed by the same principles regulating the relation of landlord and tenant. These propositions were approved by the Judicial Committee of the Privy Council in Abhiram Goswami v. Shyama Charan Nandi. As Stated in Halsbury's Laws of England, Vol. XVIII. Page 532, there is implied in every lease a condition that the lessee shall not do any thing that may prejudice the title of the lessor; and that if this is done, the lessor may re-enter for breach of the implied condition.”

Reference was made at the Bar to Raman Nair v. Vasudevan Namboodripad but all that was laid down in that case by Boddam and Bhashyam Aiyangar, JJ. was that a kanomdar's right as a mortgagee for a contractual term of years would not be affected by his denial of the mortgagor's title. Our attention was also drawn to the observations of Sadasiva Aiyar and Napier, JJ. in Abbakka Shetthi v. Seshamma and Sadasiva Aiyar, J. remarks in Raman Nayar v. Kunhi Kolandan Musaliar, as to the caution required in applying the doctrine of forfeiture by denial of landlord's title in this country. I entirely agree as to the necessity for such caution and I shall presently state my reasons in support of it, but those decisions could not be taken to weaken the authority of the Privy Council ruling in I.L.R, 36 Cal., 1003.

Then it is said that the lease in this case is nothing more than an agency to collect rents from the tenants on the land, and hence neither the provisions of the Transfer of Property Act nor the general law of landlord and tenant would be applicable to it. But it does come within the definition of a lease as given in Sect. 105, and no authority has been cited to show that before the Act such a grant was not subject to the ordinary incidents of a lease.

It is next argued by the respondent's vakil that there was no such denial of the plaintiff's title in this case as would entail forfeiture. On behalf of the appellant, reference has been made to the English law on the subject. It may be pointed out that strictly speaking the term ‘forfeituie’ is, in English Law, used only with respect to tenancies for a term of years, while in connection with tenancies from year to year or for “other period” the word ‘disclaimer’ is applied, though the operation both of disclaimer and forfeiture proceeds on similar grounds. The effect of a disclaimer is to do away with the necessity of a notice to quit, for as stated by Best, C. J. in Doe d. Calvert v. Frowd, “a ‘notice to quit’ is only requisite where tenancy is admitted on both sides and if a defendant denied the tenancy, there can be no need to end that which he says has no existence.” The Transfer of Property Act requires that in every case whether the tenancy is from year to year or for a term or is of a permanent character, the lessor should have done some act showing his intention to determine the lease. Where the institution of a suit in ejectment is or is not sufficient will be considered hereafter. In English Law, it is necessary for the application of ‘forfeiture’ to a tenancy for a term of years that the denial of the landlord's title should have been made in writing while ‘disclaimer’ may be constituted by spoken words of the tenant or by his conduct. But the Transfer of Property Act, while importing the general doctrine of English Law, does not recognise the distinction which that law draws between tenancies from year to year and for a term of years and thus has done away with the safeguard which the English Statute of Frauds provides with respect to the more valuable class of leases. Under the Indian Act, even a permanent grant such as the one in this suit, is liable to be forfeited on account of any verbal expressions used by the lessee, if they can be construed as amounting to a repudiation of the relation of landlord and tenant. This in itself dictates the necessity of guarding against a wide construction of Sect. III and of exercising caution in applying English decisions relating to ‘disclaimer’ to leases of a permanent and heritable nature. It may be mentioned here that the rule of law regarding forfeiture for denial of the landlord's title is founded on feudal principles (see arguments of Ciesswell and Crompton in Doe d. Ellerbrock v. Flynn. It is further to be borne in mind in this connection that the Indian legislature following the law of the country, has expressly exempted one large class of leases, viz., agricultural leases, from the provisions of Chapter V of the Act.

It is necessary to examine carefully the provisions of the Transfer of Property Act to ascertain the exact conditions under which permanent leasehold tenures which are unknown to English Law, have been made liable to forfeiture. So far as forfeiture depends on any express contract of the parties, we are not concerned with it in this case. Cl. (g) (2) of Sect. III lays down, ‘a lease of immoveable property determines by forfeiture, in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, an I in either case the lessor or his transferee does some act showing his intention to determine the lease. This language seems to have been borrowed from the judgment of Tindal C. J. in Doe d. Williams v. Cooper where he says “a disclaimer, as the word imports, must be renunciation by the party of his character of tenant, either by setting up title in another, or by claiming title in himself.” It is the same principle which is expressed in Doe d. Gray v. Stanion, “In order to make either a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant or to a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relation which by necessary implication is a repudiation of it.”

When, however, we come to the decided cases, in which the application of the doctrine has been invoked, it is rightly pointed out in Woodfall on Landlord and Tenant at page 388, that it is difficult if not impossible to reconcile them all. No good purpose will therefore be served by going through them. But it may be taken to be a sound general prbposit on that a tenant honestly enquiring into the title of a claimant, is not thereby guilty of disclaimer, for it is pointed out by Tindal, C. J., in the course of argument in Williams v. Cooper that there are authorities to that effect. Baron Parke also in Doe d. Gray v. Stanion says ‘An omission to acknowledge the landlord by asking for further information, will not be enough.’ It must depend on the language used by the tenant and his conduct in each case, whether he has transgressed the limits of honest inquiry. If he has clearly identified himself with the person claiming adversely to his landlord, so that his conduct amounts to renunciation of his character as tenant, forfeiture will follow. But nothing short of this will be sufficient. And further in this country, having regard to the inadequate character of legal advice available especially to the mofussil litigants, and the more or less primitive stage of mofussil drafting, we should be justiled in not placing too strict a construction on the expressions used by the tenant. In this case, however, there could be little doubt that the statements in the written statement filed by defendants 1 and 2 in O. S. No. 704 of 1906, as appearing from Exhibit H, amounted to a clear denial of the plaintiff's title. They set up in no ambiguous words the title of another person, Kullappa Chetty, and alleged that the sale by Narasimha Naidu under which the plaintiff derived his title, was fraudulent and invalid.

Then it is suggested that forfeiture by disclaimer of title, does not extend to cases where the title is denied not of a person who let the defendant into possession or to whom the defendant attorned by executing a lease in his favour or by paying him rent, but of the heir or assignee of such persons. The Transfer of Property Act in Sect. III, cl. (g) (2), while speaking of the lessee renouncing his character as such lays down the condition that the lessor or his transferee must do some act showing his intention to determine the lease. That indicates that denial of the title of the lessor's transferee would amount to forfeiture. Sect. 109 generally lays down that the transferee of the lessor, shall possess all the lights and be subject to all the liabilities of the latter. The right to determine the lease and to re-enter upon the land is an incident of the ownership of the land and vests in every person in whom the title to the property has vested either by transfer or by operation of Law. The English decisions all proceed on that assumption and I need only mention Doe d. Davies v. Evans. There the defendant, a tenant from year to year, had been paying rent to the tenant for life of the estate and on receiving notice from her to quit, wrote to her that she had promised that he should continue on as tenant from year to year and that she would not turn him cut of possession. It was held by Baron Parke and the rest of the Court that this amounted to attornment to the tenant for life and disclaimer of the title of the trustees of the settlement, under which the tenant for life derived her title. So far as it appears the defendant had never attorned to the trustees. In Doe d. Gray v. Stanion, the argument for the plaintiff was that in order to create a disclaimer it was not requisite that a tenant should act mala fide or claim the property himself, and the judgment in the case seemed to have proceeded on that basis. The pleader for the respondent has relied on a ruling of the Calcutta High Court reported in Doorga Kripa Roy v. Janoo Lathak a decision of Markby and Glover, J]. There they held that there was no authority for the proposition that the statement of the tenant that he had a good title as against the assignee of the original landlord, but to whom he had not attorned or acknowledged as his landlord, would give rise to forfeiture. The case does not seem to have been properly argued before them, at any rate, there is considerable authority in English Law for the position that a disclaimer by a tenant from year to year of the title of his landlord or of the person for the time being entitled to the immediate reversion as assignee, heir, devisee, executor or administrator of the landlord, will in effect de ermine the tenancy at the election of the landlord on other person so entitled. (See Woodfall's Landlord and Tenant, page 387).

In connection with the question of forfeiture the facts may be shortly stated. The lease to the defendants' ancestors was granted more than sixty years ago by the then Mittadar. The mitta comprising the land in dispute became vested in one Venkatarama Naidu, and it would seem that his eldest son Naiasimhulu Naiau acted as managing member of the family with the consent of his father. This Narasimhulu Naidu sold the property to the plaintiff, it was alleged, for discharging some family debts. Venkatarama Naidu on the other hand executed a deed of sale in favour of Kullappa Chetty already mentioned. The defendants in the litigation that ensued suported Kullappa Chetty against the plaintiff and in fact it was alleged that Kullapa Chetty was their creature. The suit O. S. No. 704 of 1906 was brought by the plaintiff against the defendants and Kullappa Chetty to establish his title, and the plaintiff also alleged in that suit that the lease under which the defendants held, was not binding on him though he did not seek any adjudication on that point. He sought and obtained a decree for rent, the issue as to title being decided in his favour. From that date forwad the plaintiff has persisted in the allegation that the lease relied upon by the defendant is not valid and binding, and in this very suit his contention has been that he defendants were merely tenants from year to year and held no permanent heritable tenure as alleged by them.

We have had the case re-argue 1 on the following points:

(1) Whether the appellants themselves having denied the respondents' rights as lessees, the denial on the part of the latter of the former's title to the land would not take the the case out of the rule regarding forfeituie by denial of landlord's title. There is no authority which recognises such an exception, and on further consideration I am not satisfied that it can be well deduced from the principles which govern the law on the subject. That law which is founded on feudal notions is intended to protect the interests of the landlord and it may be that it does not afford corresponding protection to tenants against the landlord's denying their rights but that is a matter for the legislature to consider. The disclaimer which entails forfeiture is denial of the landlord's title to the land and not the denial of his claim that the defendant is his tenant.

(2) Whether any act on the part of the landlord determining a lease apart from and before the institution of the suit was necessary. The Transfer of Property Act does not govern the case. It has been ruled in Padmanabhayav. Ranga after a full consideration of the authorities that in cases not governed by the Transfer of Property Act the institution of a suit in ejectment is a sufficient determination of the lease where the lessee forfeited the lease by denial of the landlord's title and no other pieviousact determining the Jease such as a notice to quit is necessary for maintaining the action. The learned Judges distinguished Venkatraviana Bhatta v. Gundaraya on the ground that that ruling proceeded on the piovisions of the Tiansfer of Property Act though the Act in fact did not govern the case. The proposition laid down in I.L.R, 34 Mad., 161 has been followed in Korapalu v. Narayana, and Abbakka Shetthi v. Seshamma and I am satisfied on further consideration that it is correct and borne out by the authorities. The question whether the law is or is not otherwise under the Transfer of Property Act may require further consideration. I express no opinion upon it.

(3) The question of waiver of forfeiture, it is rightly pointed out, was not laised in the Law. Court and could not be considered for the first time in appeal.

(4) As regards defendants 5 and 6 their interest in the land can only be as members of the pint family along with the other defendants and they are bound by the consequences of the act of defendants 1 to 3.

In the result, the judgment of the Lower Court must be set aside and there will be a decree for the plaintiff in the terms of the prayer in the plaint and the amount of mesne profits will be determined in execution. Under the circumstances, each party will bear his own costs throughout.

Old field, J.—I agree.

M. R.Appeal allowed.