The Judgment of the Court was es follows:—
Mookerjee, C.J:— These are appeals by the Defendants in two suits for recovery of possession of land. The same tract is in dispute in both the suits; but the subject-matters are different shares making up entirety in the aggregate.
On the 3rd March 1897 a lease of the disputed land was granted, containing a provision to the following effect: “You wilt enjoy the lands of this jama from generation to generation by using it for the purpose of your own residence or for the residence of your own people, if necessary, without in any way altering the character of the lands and by keeping the boundaries intact, and without having the power of making gifts or any sort of alienation. If you or your heirs alienate it, we and our heirs will be entitled to recover khas possession; any objection to the same will be rejected by the Court.” In contravention of this covenant, the land was sold by the lessees to the Defendants on the 27th October 1900. One of the present suits was instituted on the 8th October 1912; the other was instituted on the 12th November 1912. This latter suit was instituted in a Court which had no jurisdiction to entertain it, with the result that the plaint was returned to the Plaintiffs and was refilled in a competent Court on the 6th September 1913. We may take it, however, in view of the provisions of sec. 14 of the Indian Limitation Act, that for the purposes of the question of limitation raised before us, the suit may be treated as instituted on the 12th November 1912. The Courts below have decreed the suits.
On the present appeals, those decrees have been assailed on the ground that there was no forfeiture of the tenancy, on the basis of which the lessors could maintain these actions, as they had not complied with the requirements of cl. (g) of sec. 111 of the Transfer of Property Act. It has further been agrued that, assuming there was a forfeiture, the suit which was instituted on the 12th November 1912 is barred by limitation; and, that if this contention prevails; the other suit should be dismissed as not maintainable. We are of opinion that these contentions are well founded and must prevail.
As regards the question of limitation which arises in one of the suits only, it is plain that the provision of the Limitation Act applicable is Art. 143, which requires that a suit for possession of immoveable property when the Plaintiff has become entitled by reason of any forfeiture or breach of condition, must be instituted within twelve years from the date when the forfeiture is incurred or the condition is broken. The plain language of this provision shows that it is applicable to the case before us. Here the Plaintiffs sued to recover possession on the ground that they became, entitled to recover possession under the terms of the contract of tenancy by reason of breach of the condition-against alienation. This view is supported by the decision in Goohi Sheikh v. H. Mathewson (1). Reliance, however, has been placed on behalf of the Respondents upon the decision in Bhairab Chander Naskar v. Kadam Bewa (2) which is clearly distinguishable. In that case, Art. 144 was applied, on the ground that at the date of the institution of the suit, the Defendants had ceased to be tenants, inasmuch as, from the date of the written statement in a previous suit in which they had denied the title of the landlord, they had forfeited their tenancy and had held adversely to him: In these circumstances it was held that Art. 144, and not Art. 143, was applicable. This is manifestly of no assistance to the Plaintiffs in the case before us. It has further been argued on their behalf that time ought to run against them, not from the date of alienation but from the date when the lessees surrendered possession to their transferees. We are of opinion that there is no foundation for this contention which is contrary to the provisions of Art. 143. We must accordingly hold that the suit which was instituted on the 12th November 1912 is barred by limitation. If that suit is barred by limitation, it is plain that the other suit which had been instituted earlier and was not barred by limitation is not maintainable, on the ground that a suit for ejectment does not lie in respect of a portion of the lands of a tenancy which has been forfeited or a condition whereof has been broken. This view is supported by a long series of decisions in this Court mentioned in the case of Gopalram Mohuri v. Dhuheswar Pershad Narain Singh although we do not overlook that a contrary view has been taken in Madras in the case of Syed Ahmad Sahib Shullari v. Magnesite Syndicate Ltd. . From this point of view, both the suits are liable to be dismissed.
We are further of opinion that both the suits must fail on the ground that the Plaintiffs have failed to comply with the requirements of cl. (g) of sec. 111 of the Transfer of Property Act. That clause provides as follows:—“A lease of immoveable property determines by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or the lease shall become void; or (2) in case the lessee renounces his character as such by setting up a title in a third person, or by claiming title in himself, and in either case the lessor or his transferee does some act showing his intention to determine the lease.” In the case before us, the allegation of the Plaintiffs is that the lessees committed a breach of an express condition against alienation which provided that on breach thereof the lessors might re-enter. It is, consequently, necessary for the Plaintiffs to establish that the lessors have done some act showing an intention to determine the lease before the suit was instituted. The Plaintiffs have failed to show that they have complied with this requirement of the statute. That this is the plain intention of the legislature is clear from the decision of this Court in the case of Anandamoyee v. Lakhi Chandra Mitra (5). The same view was taken by the Madras High Court in the case of Venkataramana v. Gundaraya (6). In the latter case, however, it was overlooked that the lease was of a date antecedent to the Transfer of Property Act, and the case was consequently not governed by the provisions of sec. 111, cl. (g). This was pointed out in Padmanabhaya v. Ranga (7) where the Madras High Court, in the case of a lease granted before the Transfer of Property Act, refused to apply the provisions of sec. 111, cl. (g), but invoked the aid of the English law on the subject as consonant to the principles of justice, equity and good conscience. In a later case, Korapalu v. Narayana (8) where the lease had been granted for agricultural purposes, consequently was not covered by the Transfer of Property Act, the Madras High Court similarly applied the rule of English law and declined to apply cl. (g) of sec. 111. In the case before us, the lease was executed long after the Transfer of Property Act had come into operation, and is subject to the provisions of sec. 111, cl. (g). In our opinion, there is no room for serious controversy as to the true meaning of that section. No doubt, it is not necessary that a formal notice should be given before the institution of the suit; the intention to determine the lease may be manifested in many ways. For instance, in the case of Ramnath Sil v. Siba Sundari Debya (9) it was held that the institution of a prior suit for ejectment, which was withdrawn with liberty reserved to the Plaintiff to institute a fresh suit on the same cause of action was for the purposes of the second suit, a sufficient indication of the intention to determine the lease. There can be no doubt that the insertion of the condition mentioned at the end of cl. (g) of sec. 111 was a deliberate departure from the English law on the subject. Under the English law a proviso in a lease leaves it optional with the lessor whether he will or will not exercise his right of determining the lease upon a cause of forfeiture arising. This does not by itself enable the lessee who has committed a breach to treat the contract as at an end. The lease is not void but only voidable and the lessor alone can avoid it. Bowser v. Colby (10), Davenport v. R. (11), Jones v. Carter, (12) and Toleman v. Portbury (13). In such circumstances, questions might well arise whether the lessor did or did not waive the forfeiture. It was possibly with a view to avoid difficulties of that nature that the Indian Legislature has provided that before the suit was instituted the lessor should do some act to show his intention to determine the lease.
It is not necessary to discuss the matter in further detail, as the question was fully examined recently in the case of Nowrang v. Janardan . We see no reason to depart from the rule enunciated therein, namely, that where the rights and obligations of the parties are regulated by sec. 111, cl. (g) of the Transfer of Property Act, there is no determination of a lease by forfeiture immediately on breach of covenant, but such breach must be followed by an overt act on the part of the lessor before the institution of the suit for ejectment; the institution of the suit cannot be rightly regarded as the requisite act, because the forfeiture must be completed and the lease determined before the commencement of the action.
We have finally been asked by the Respondent to put such a construction on the covenant as to justify the inference that there has been in fact no breach of condition in this case. His argument was that the covenant against alienation was really a covenant against transfer of possession, and that there was no breach of covenant till it was shown that a document had been executed and the transferees had been placed in possession pursuant thereto. We are of opinion that the clause in the lease is incapable of such an interpretation. A covenant of this description must be interpreted in the same way as any other covenant in the document, and we cannot twist its terms in order to enable the Plaintiffs to avoid the consequences of their failure to comply with the statutory requirement. Conditions of this nature are entitled neither to favour nor disfavour, but a fair construction is to be put upon them according to the apparent intent of the contracting parties, such intention, according to ordinary rules of construction, to be found from the language they have used. Croft v. Lumley (15), Goodtitle v. Saville (16), Doed Davis v. Elsam (17) and Doed Muston v. Gladwin (18). We are accordingly unable to hold that the Plaintiffs are entitled to possession though they have not complied with the requirement of sec. 111, cl. (g), the objection in fact is fatal to the case.
The result is that these appeals are allowed, the decrees of the Courts below set aside and the suits dismissed with costs in all the Courts.
Fletcher, J.—I agree.
S.C.M