TMI Blog1926 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... nd we are not entitled to alienate the said land to any one else by mortgage, arwar, sale, gift, mulgeni, owdigeni, kayamgeni or by injunction, attachment, auction in any decree that may be passed against us in any Court or in any other manner whatever. 2. The Mulgeni lease was in favour of three persons. One of the Mulgenidars alienated his share on 28th May, 1919 under Ex. I in favour of another Mulgenidar, that is his co-lessee. On 27th April, 1920, the Mulgenidar reconveyed the same interest to the former Mulgenidar under Ex. III. On 10th June, 1924, one of the Mulgenidars convened his right under Ex. II to his daughter. The daughter reconveyed the interest conveyed to her to her father on 19th July, 1921, by Ex. A. 3. Two questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. This case was considered in Corporation of Bristol v. Westcott (1879) 12 CHD 461. The facts of the case were as follows: A lease was granted to two partners B and H as joint tenants. The lessees covenanted that they, their executors, administrators or assigns or any or either of them, would not, during the term, assign, underlet or part with the possession of the demised property to any person or persons without the written consent of the lessor; and there was a proviso for re-entry on the breach of any of the covenants. The partners dissolved partnership and agreed that the partnership property should be made over to B, and that the leasehold property should be assigned to him with the consent of the lessor, if such consent could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let into possession any one not previously approved of as tenant by;he lessor. Giving the words that meaning, you make the covenant sensible, and I think that is their fair meaning. 8. It was held by the Court of Appeal that there had been no breach of the covenant and that the proviso for re-entry had not come into operation. It is open to one of the joint lessees to allow the other joint lessees to enjoy the property leased. Where the execution of a deed conveyed the right of one to another is such an alienation contemplated by the clause in Ex. A? It would not be a fair construction to hold that the person who is already a tenant should obtain the consent of the landlord in order to acquire the interest of another tenant, if the clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law of landlord and tenant in England is such that it is considered more favourable to the landlord than to the tenant. Should we introduce into the Indian system the rigour of the English law as regards the relation of landlord and tenant? My answer is 'No'. I hold that the alienation in favour of co-lessee by another lessee of his right in the lease is not an alienation which will work a forfeiture unless such is prohibited by the lease deed. 10. The next question is whether the conveyance by one of the lessors in favour of his daughter is an alienation within the meaning of the clause against alienation in Ex. A. This point is clearly covered by authority. In Angamuthu Chetti v. Varatharajulu Chetti (1919) 37 MLJ 384 (FB). i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the period for which he claimed rent. When a landlord is entitled to re-enter by reason of the forfeiture of the lease by the lessee he is also entitled to claim rent or mesne profits up to the date of obtaining possession and the fact that he claims in a suit rent or mesne profits till he gets possession cannot be deemed to be a waiver of the right to re-enter. The moment he filed a suit he takes an irrevocable step by asking for possession on the ground of forfeiture and his asking for incidental remedy cannot be said to amount to a waiver. It was distinctly held in Padbanabhayya v. Ranga (1910) I L R 34 Mad 161: 20 M L J 930 that a claim for rent in a suit for ejectment will not amount to waiver of the forfeiture. The election to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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