L.H. Jenkins, J.

1. This is a suit for the recovery of certain premises inCalcutta known as 173, Aheereetolah Street, and to enforce payment of certainarrears of rent and mesne profits. The plaintiff was at the date of the SmallCause Court suit, to which I will later refer, the owner of these premises,subject to a subordinate tenure vested in the defendant at a monthly rent ofRs. 15-8. The rent having fallen into arrear the plaintiff, in conjunction withhis mother, sued the defendant for these arrears in the Small Cause Court, andby way of defence the folio wing pleas were raised:

2. "Denies tenancy under the plaintiff or any one else,and admits occupation as owner of the land. Denies payment of any rent to theplaintiffs. Never indebted. Misjoinder of parties. Denies jurisdiction."

3. The oral evidence is to the effect that the denial oftenancy, and the claim of occupation as owner, were set up at the first hearingon the 28th April 1892, and there can be no doubt that at any rate they werein. existence on the 10th of August 1892. On the 21st August 1892 the defendantwas examined on commission, and in the course of her evidence she stated asfollows: "I do not pay any rent for the premises No. 173, AhereetolahStreet, to anybody; never paid any rent for it to Katyani Dassi or herancestors or predecessors; nor did I promise to pay rent to Katyani Dassi orher ancestors or predecessors. I never paid rent through Upendronath Dey orSarodaproshad Dey to Katyani Dassi or her receiver. This land is rent free, Iam the owner of this land, and I have to pay rent to no one." Afternumerous adjournments the case came before Mr. Mac Ewen, one of the Judges ofthe Small Cause Court on the 8th of March 1893, when the suit was withdrawnwith leave to sue again.

4. The judgment delivered on that occasion has been tenderedby Mr. Pugh, and on Mr. Garth waiving all objections I have admitted it inevidence. From that judgment it appears that a bona fide question of title was,still raised in that suit; that the defendant denied the tenancy under theplaintiffs and claimed the land as her own property. Nothing more wasapparently done on either side until the 13th April 1894, when the presentplaint was filed asking for possession on the ground that the defendant had byclaiming a title in herself forfeited her lease. A written statement was filedon the 2nd of August 1894, and the case came on for hearing before theChristmas vacation, but Counsel who then appeared for the defendant applied foran adjournment, on the ground that the case would be settled subject to thedefendants approval, and I accordingly allowed the adjournment, as Counsel forthe plaintiff did not oppose.

5. It seems, however, that the result of the adjournment wasnot a settlement, but an application for leave to file a supplemental writtenstatement, which was subsequently put in.

6. On the trial before me the following issues were raised:

1. Whether the defendant did by her pleading of the 28th ofApril 1892, or the 10th August 1892, deny the plaintiffs title

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

3. Whether the defendant did by her evidence given on the21st August 1892 deny the title

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

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

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

7. And there were three further issues which have since beendropped, and with which it is unnecessary for me to deal.

8. I will take these issues in order. Now, there can be noquestion that in the defence in the Small Cause Court suit there is a cleardenial of the plaintiffs title, and the only question is whether it can hetreated as a denial (sic)y the defendant, and for that proposition it becomesnecessary to (sic)ee what the facts are as to the introduction of these pleas.I am satisfied (sic) on the evidence that they were formulated by thedefendants pleaders on in instructions received from Meghnad Srimani, thedefendants brother, and her am-mukhtear, and that these pleaders wereappointed by the defendant under a document which was explained to her.

9. A defence prima facie at any rate may lie taken to expressthe contentions of the person on whose behalf it is framed; though it may beopen to that person, especially if a purdanashin lady, to repudiate thatdefence. In the present case, however, I find that the plea raised by thedefence was never repudiated, but on the contrary was sought to be establishedby the ladys own evidence, was persisted in to the last, and is corroboratedby her failure to pay the rent due in respect of her tenure. The defendant isnot called to say that she did not know of this pica, and not a word ofcross-examination on this point is put to her am-mukhtear or her pleader,though they have both been called by the plaintiff. Indeed when a question wasput to the defendants pleader involving the disclosure of communications protectedunder Section 126 of the Evidence Act, Mr. Pugh in exercise of his undoubtedright refused to give the requisite consent mentioned in that section.

10. Under the circumstances I hold that the denial in thedefence 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 inthe Small Cause Court action. I will next deal with the third issue on thesupposition that the first and second issues should have been otherwisedecided.

11. If words are to have their natural meaning, then itseems to me impossible to say that the defendant did not in her evidence denythe plaintiffs 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 andthat he did get instructions from her. The pleader was then asked by Mr. Garthwhat those instructions were, but as Mr. Pugh would not waive his privilege thequestion could not be answered. After her evidence was taken down it wasexplained to her both by the Commissioner and her pleader, and she then affixedher seal to the document. I, therefore, bold that the defendant did by herevidence given on the 21st of August 1892 deny the plaintiffs title, and myopinion on the 4th issue is that there has been no such waiver as is therebysuggested. The 5th issue is intended to raise the question whether the terms ofSection 111 (g) of the Transfer of Property Act have been complied with. I havenot the slightest doubt that by bringing this action and proceeding with itagainst the defendant the plaintiff has shown his intention to determine thelease.

12. The last issue with which I need deal is whether thelease is not forfeitable by reason of its being a permanent lease. This issueinferentially raises the issue whether the defendant holds under a permanentlease, and the burden of establishing the affirmative of this would lie on the defendant.

13. The lease itself is not produced, and the ordinaryinference as to a lease of buildings in Calcutta at a monthly rent would appearto be that the tenancy is from month to month (see Transfer of Property Act,Section 106, and Nocoordass Mullick v. Jewraj 12 B. L. R. 263. Mr. Pugh,however, relies on an allegation in a written statement tiled by hispredecessor in title, that the plaintiffs predecessor had granted a maurasimokurari pottah as amounti(sic) to a claim by him, which afterwards by thelapse of time ripened into a right(sic) and in confirmation of this be pointsto the fact that the present plaintiff di(sic) in the Small Cause Courtdescribe the defendant as holding mid or a permanent, lease, But the plaintiff,while disputing the defendants conclusion as to the character of her tenure,contends that even if she he correct, still the lease would be none the lessforfeitable, and I will accordingly deal with that point.

14. In the first place, I must point out that to draw anyanalogy from the English law of real property is wholly misleading. It has beensaid that the effect of a grant by a maurasi mokurari lease is similar to aconveyance in fee simple, but though there may be some correspondence in thepractical results, it appears to me that any argument as to the legal effectbased on this resemblance is wholly fallacious.

15. Because at the present day a conveyance in fee simpleleaves nothing in the grantor, it does not follow that a lease in perpetuityhere has any such result. As a matter of fact this effect of an English grantdates from the Statute of Westminster III known as Quia Emptores (Statute 18EIC 1), which for reasons stated in its preamble forbade the system ofsubinfeudation that up to that time had prevailed; for at common law afeoffment made by A to B of a portion of his lands would create the relation oflord and tenant with all the incidents attaching to that relation including theright of forfeiture.

16. Now, the law of this country does undoubtedly allow of alease inn perpetuity, and we learn from Section 105 of the Transfer of PropertyAct that it is the transfer of a right to enjoy property in perpetuity, and titthe same time it is provided by Section 111 of the same Act that a leasedetermines by forfeiture.

17. It is urged, however, by the defendant, that though thewords of the provision are wide enough to authorize the forfeiture of a leasein perpetuity, still in fact that result is impossible, and next that in anycase it would not apply to a lease such as this which came into existencebefore the passing of the Act. I will deal with those points in order.

18. The impossibility on which the defendant relies is basedupon the assumption that a lessor has no reversion. There seems to me to lurkin this assumption a fallacy based on the theories of English real propertylaw.

19. A man who being owner of land grants a lease inperpetuity carves a subordinate interest out of his own and does not annihilatehis own interest This result is to be inferred by the use of the word"leaso," 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, butthe determination of the lease is a removal of that barrier, and there isnothing to prevent the enjoyment) from which he had been excluded by the lease.Logically the case of Kali Krishna Tagore v. Goolam Ally I.L.R. 13 Cal. 248 [LQ/CalHC/1886/111] towhich T was referred by Mr. Pugh, appears to demand the same conclusion, for itproceeds on the ground that one who sets up a permanent tenancy does notrepudiate any title or interest which would have been in his landlord had thetenancy not been permanent.

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

21. Mr. Pugh himself admitted that a perpetual lease wouldbe forfeitable, if there were a right of re-entry, and then if that view iscorrect, 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 butsimply creative of a fresh estate would be an infringement of the rule againstperpetuity.

22. I, therefore, come to the conclusion that if the leaseset up by the defendant be one to which the Transfer of Property Act isapplicable, it is forfeitable, notwithstanding that it is permanent.

23. But there still remains the question whether having regardto Section 2 (b) and (c) of the Act this alleged lease is forfeitable. Now, ithas not been suggested that there is any authority which exempts a lease ofthis character from forfeiture for renunciation, or which establishes that thelessee is entitled to be relieved from forfeiture, nor has any allegedprinciple been urged which I have not already disposed of. If the relationshipbe one of landlord and tenant, then there is the general rule which obtained inthis country before the Transfer of Property Act that a tenant who impugns hislandlords title renders his lease liable to forfoiture, and this rule is onlya particular application of the general principle of law that a man cannotapprobate and reprobate, or, as it is more familiarly expressed, be cannot blowhot and cold.

24. I therefore hold that the lease has been determined, andthat its determination dates as from the date of the picas in the Small CauseCourt. There is the possibility of a doubt whether those pleas were framed onthe 28th of April, or the 10th of August, and giving the defendant the benefitof that doubt, I hold that the lease was determined as from the later date.

25. It is admitted that rent is in arrear, and the onlyquestion is how far back, having regard to the statute of limitation, theplaintiff can claim. The point has not boon argued before me, but Article 110of the Indian Limitation Act of 1877 imposes a limit of three years. The onlyquestion is whether Section 14 applies. The plaintiff has made no attempt to satisfyme on this point, nor do I know why his suit in the Small Cause Court waswithdrawn. I therefore see no reason for allowing him to carry back his claimmore than three years from the institution of this suit.

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

27. Attorneys for the Plaintiff: Messrs. Kally Nath Mitter& Sarbadhicary. Attorney for the Defendant: Babu S. K. Deb.

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Kally Dass Ahiri vs.Monmohini Dassee (12.02.1897 - CALHC)