9911796707
TMI Blog1897 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the plaintiffs. Never indebted. Misjoinder of parties. Denies jurisdiction. 3. 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, Ahereetolah Street, to anybody; never paid any rent for it to Katyani Dassi or her ancestors or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for leave to file a supplemental written statement, 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 of April 1892, or the 10th 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. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put to her am-mukhtear or her pleader, though they have both been called by the plaintiff. Indeed when a question was put to the defendant's pleader involving the disclosure of communications protected under Section 126 of the Evidence Act, Mr. Pugh in exercise of his undoubted right refused to give the requisite consent mentioned in that section. 10. 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. 11. If words are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie on the defendant. 13. 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 Nocoordass Mullick v. Jewraj 12 B. L. R. 263. Mr. Pugh, however, relies on an allegation in a written statement tiled by his predecessor in title, that the plaintiff's predecessor had granted a maurasi mokurari pottah as amounti(sic) to a claim by him, which afterwards by the lapse of time ripened into a right(sic) and in confirmation of this be points to the fact that the present plaintiff di(sic) in the Small Cause Court describe the defendant as holding mid or a permanent, lease, But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time it is provided by Section 111 of the same Act that a lease determines by forfeiture. 17. 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 that 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 those points in order. 18. 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 theories of English real property law. 19. A man who being owner of land grants a lease in perpetuity carves a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited right of entry not incident to an estate but simply creative of a fresh estate would be an infringement of the rule against perpetuity. 22. I, therefore, come to the conclusion that if the lease set up by the defendant be one to which the Transfer of Property Act is applicable, it is for feitable, notwithstanding that it is permanent. 23. 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 alleged principle been urged which I hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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