The following Judgment was delivered by

Jenkins, J.:— This is a suit for the recovery of certain premises in Calcutta known as 173 Aheeritolah Street, certain arrears of rent and mesne profits.

The plaintiff was at the date of the Small Cause suit, to which I will later refer, the owner of these permises subject to a subordinate tenure vested in defendant at a monthly rent of 15-8. The rent having fallen into arrear, the plaintiff in conjunction with his mother sued the defendant for these arrears in the Small Cause Court, and by way of defence the following pleas were raised.

“Denies tenancy under the plaintiffs or anyone else, and admits occupation as owner of the lands. Denies payment of any rent to the plaintiffs. Never indebted, misjoinder of parties, denies jurisdiction.

The oral evidence is to the effect, that the denial of tenancy and the claim of occupation as owner, were set up at the first hearing on the 28th April 1892, and there can be no doubt that at any rate they were in existence on the 10th of August 1892. On the 21st August 1892 the defendant was examined on commission and in the course of her evidence she stated as follows:—“I do not pay any rent for the premises No. 173 Aheeritolah Street, to any body, never paid any rent for it to Katyani Dassi, or her ancestors or predecessors, nor did I promise to pay rent to Katyani Dassi, or her ancestors or predecessors. I never paid rent through Upendra Nath Dey or Saroda Prosad Dey to Katyani Dassi, or her Receiver. This land is rent-free. I am the owner of this land, and I have to pay rent to no one.” After numerous adjournments the case came before Mr. MacEwan on the 8th of March 1893 when the suit was withdrawn with leave to sue again.

The judgment delivered on that occasion has been tendered by Mr. Pugh and on Mr. Garth waving all objections I have admitted it in evidence. From that judgment it appears that a bonâ fide question of title was raised in that suit, that the defendant still denied the tenancy under the plaintiffs and claimed the land as her own property. Nothing more was apparently done on either side until the 13th April 1894 when the present plaint was filed asking for ejectment on the ground that the defendant had by claiming a title in herself forfeited her lease. A written statement was filed on the 2nd of August 1894 and the case came on for hearing before the X'mas vacation, but counsel who then appeared for the defendant applied for an adjournment, on the ground that the case would be settled subject to the defendant's approval and I accordingly allowed the adjournment as counsel for the plaintiff did not oppose.

It seems however that the result of the adjournment was not a settlement but an application for leave to file a supplemental written statement which was subsequently put in.

On the trial before me the following issues were raised:

1. Whether the defendant did by her pleading of the 28th of April 1892 or the 10th of August 1892 deny the plaintiff's title.

2. If so, whether the forfeiture (if any) thereby caused has been waived by subsequent proceedings in the Small Cause Court action.

3. Whether the defendant did by her evidence given on the 21st August 1892 deny the title.

4. If so, whether the forfeiture (if any) thereby caused had been waived by subsequent proceedings in the Small Cause Court action.

5. Whether the plaintiff has done any act showing his intention to determine the lease.

6. Whether the lease is not forfeitable by reason of its being a permanent lease.

And there were three further issues which have since been dropped and with which it is unnecessary for me to deal.

I will take these issues in order. Now, there can be no question that in the defence there is a clear denial of the plaintiff's title and the only question is, whether it can be treated as a denial by the defendant, and here it becomes necessary to see what the facts are as to the introduction of these pleas. I am satisfied on the evidence that they were formulated by the defendant's pleaders on instructions received from Megnad Srimani the defendant's brother, and her Ammukhtear, and that these pleaders were appointed by the defendant under a document which was explained to her.

A defence prima facie at any rate and apart from special circumstances, may be taken to express the contentions of the person on whose behalf it is framed; it is open to that person especially, if a Pardanashin lady, to repudiate that defence. In the present case, however, I find that the plea raised by the defence, was never repudiated but on the contrary was sought to be established by the lady's own evidence, was persisted in to the last and is corroborated by her failure to pay the rent due in respect of her tenure. The defendant is not called to say that she did not know of this plea and not a word of cross-examination on this point is put to her Ammukhtear or her pleader though they have both been called by the plaintiff. Indeed when a question was put to the defendant's pleaders involving the disclosure of communications protected under Section 126 of the Evidence Act, Mr. Pugh in exercise of his undoubted rights refused to give the requisite consent mentioned in that Section.

Under the circumstances I hold that the denial in the defence was made by the defendant, and on the second issue, that the forfeiture (if any) thereby caused has not been waived by any subsequent proceedings in the Small Cause Court action. I will next deal with the third issue on the supposition that the first and second issues should have been otherwise decided.

If words are to have their natural meaning, then it seems to me impossible to say that the Defendant did not in her evidence deny the Plaintiff's title.

It seems that immediately before she gave her evidence, she had an interview through the medium of her Am-mukhtear with her pleader who says that he was taken to the defendant to receive her instructions and that he did get instructions from her. The pleader was then asked by Mr. Garth what those instructions were, but as Mr. Pugh would not waive his privilege, the question could not be answered. After her evidence was taken down it was explained to her both by the Commissioner and her pleaders. She then affixed her seal to the document. I therefore hold that the defendant did, by her evidence given on the 21st of August, 1892, deny the plaintiffs title and my opinion on the fourth issue is that there has been no such waiver as is thereby suggested. The fifth issue is intended to raise the question whether the terms of Sec. 111(g) of the Transfer of Property Act have been complied with. I have not the slightest doubt that by bringing this action, and proceeding with it against the defendant the plaintiff has shewn his intention to determine the lease. The last issue with which I need deal is whether the lease is not forfeitable by reason of its being a permanent lease.

This issue inferentially raises the issue whether the defendant holds under a permanent lease and the burden of establishing the affirmative of this would lie on the defendant.

The lease itself is not produced and the ordinary inference as to a lease of buildings in Calcutta at a monthly rent would appear to be that the tenancy is from month to month. (See Transfer of Property Act, Section 106 and Mullick v. Jewiaj) (12), Mr. Pugh, however, relies on an allegation in a written statement filed by his predecessor in title, that the plaintiff's predecessor had granted a mourashi mokurrari Pattah, as amounting to a claim by him which afterwards by the lapse of time ripened into a right, and in confirmation of this points to the fact that the present plaintiff did in the Small Cause Court describe the defendant as holding under a permanent lease. But the plaintiff while disputing the defendant's conclusion as to the character of her tenure contends that even if she be correct still the lease would be none the less forfeitable and I will accordingly deal with that point.

In the first place I must point out that to draw any analogy from the English Law of Real Property is wholly misleading. It has been said that the effect of a grant by a mourashi mokurrari lease is similar to a conveyance in fee simple, but though there may be some correspondence in the practical results it appears to me that any argument as to the legal effect based on this resemblance is wholly fallacious.

Because at the present day a conveyance in fee simple leaves nothing in the grantee. It does not follow that a lease in perpetuity here, has any such result. As a matter of fact this effect of an English grant dates from the Statute of Westminster the III, known as Quia Emplores which for reasons stated in its preamble forbade the system of subinfeudation which up to that time had prevailed, for at common law a feoffment made by A to B of a portion of his lands would create the relation of lord and enant with all the incidents attaching to that relation including the right of forfeiture.

Now the law of this country does undoubtedly allow of a lease in perpetuity and we learn from sec. 105 of the Transfer of Property Act that it is the transfer of a right to enjoy property in perpetuity, and at the same time it is provided by sec. 111 of the same Act that a lease determines by forfeiture.

It is urged however by the defendant that though the words of the provision are wide enough to authorize the forfeiture of a lease in perpetuity, still in fact that result is impossible and next in any case it would not apply to a lease such as this which came into existence before the passing of the Act. I will deal with these points in order.

The impossibility on which the defendant relies is based upon the assumption that a lessor has no reversion. There seems to me to lurk in this assumption a fallacy based on the authorities of English Real Property Law.

A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest. This result is to be inferred by the use of the word lease which implies an interest still remaining in the lessor before the lease, the owner had the right to enjoy the possession of the land and by the lease he excludes himself during its currency from that right, but the determination of the lease is a removal of that barrier and there is nothing to prevent the enjoyment from which he had been excluded by the lease. Logically the case of Tagore v. Golam Aly to which I was referred by Mr. Pugh appears to demand the same conclusion, for it proceeds on the ground that one who sets up a permanent tenancy, does not repudiate any title or interest which would have been in his landlord had the tenancy not been permanent.

I may further point out that Sec. 105, Transfer of Property Act, provides that a lease should either be for a certain time or in perpetuity while Sec. 108B(i) contemplates the determination of a lease of uncertain duration by the fault of the lessee and though too great stress should not be laid on this, still it is at least consistent with the view that a lease in perpetuity, is forfeitable.

Mr. Pugh himself admitted, that a perpetual lease would be forfeitable if there were a right of re-entry and then if that view is correct, it implies that the lessor has still a superior estate in the land, for I imagine, that an unlimited right of entry not incident to an estate, but simply creative of an estate, would be an infringement of the rule against perpetuities.

I therefore come to the conclusion, that if the lease set up by the defendant be ??? to which the Transfer of Property Act is applicable, it is forfeitable notwithstanding that it is permanent.

But there still remains the question whether having regard to section 2(b) and (c) of the Act this alleged lease is forfeitable. Now it has not been suggested, that there is any authority which exempts a lease of this character from forfeiture for renunciation, or which establishes that the lessee is entitled to be relieved from forfeiture, nor has any other principle been urged which I have not already disposed of. If the re-ationship be one of landlord and tenant then there is the general rule which obtained in this country before the Transfer of Property Act, that a tenant who impugns his landlord's title renders his lease liable to forfeiture, and this rule is only a particular application of the general principle of law that a man cannot approbate and reprobate, or as it is more familiarly expressed, he cannot blow hot and cold.

I therefore hold, that the lease has been determined, and that its determination dates as from the date of the pleas in the Small Cause Court. There is the possibility of a doubt whether those pleas were framed on the 28th of April or on the 10th of August, and giving the defendant the benefit of that doubt I hold that he lease was determined as from the ??? date.

It is admitted that rent is in arrear, and the only question is how far back having regard to the Statute of Limitation plaintiff can claim.

The point has not been argued before me, but Article 110 imposes a limit of 3 years, the only question is whether Section 14 applies, but the plaintiff has made no attempt to satisfy me on this point, nor do I know why his suit in the Small Cause Court was withdrawn. I therefore see no reason for allowing him to carry back his claim more than three years from the institution of the suit.

There will also be judgment for mesne profits, the amount of which must be determined by a reference to the Registrar, and the defendant must pay the costs of the action.

J.C