JUDGMENT

S.N. Singh, J. - This is a defendant's appeal in a suit for ejectment and arrears.

2. It appears that after the termination of tenancy by notice dated 1-9-57 the plaintiff instituted the suit on 20-2-1958 and after the institution of the suit the defendant remitted certain amount which was due to the plaintiff-respondent from defendant for a period prior to the termination of the tenancy as well as for a period subsequent to the termination of the tenancy. This money order had been received after the institution of the suit. The plaintiff accepted the money order with a note that this acceptance was without prejudice to the suit already filed.

3. Both the courts below have decreed the suit for ejectment as well as arrears of rent.

4. The defendant has now come up to this Court in appeal and the only point raised in this appeal is that the acceptance of rent by the plaintiff after the institution of the suit for the period subsequent to the termination of the tenancy would amount to waiver or creation of a fresh tenancy by the plaintiff in favour of the defendant. The learned counsel for the appellant has in support of his submission cited a decision of this Court reported in Mohan Lal v. Sameer Kunwar, AIR 1964 Allahabad 374.

5. I have heard learned counsel for the parties at great length and have looked into a number of authorities of this Court as well as of other courts and on reviewing all the authorities cited before me and having looked into the relevant sections of the Transfer of Property Act I am of opinion that the decisions of the courts below have to be upheld.

6. In order to appreciate the arguments it will be pertinent to notice Secs. 112, 113 and 116 of the Transfer of Property Act which are reproduced below: -

112. A forfeiture under Sec. 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:

Provided that the lessor is aware, that the forfeiture has been incurred:

Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

113. A notice given under Sec. III, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.

ILLUSTRATIONS:

(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit The first notice is waived.

116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.

ILLUSTRATIONS:

(a) A lets a house to B for five years. B under lets the house to C at a monthly rent of Rs. 100/-. The five years expire, but C continues in possession of the house and pays the rent to A. Cs lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies but B continues in possession with A,s assent. B,s lease is renewed from year to year.

7. These three sections have to be read along with sections 111 (g), 111 (h) and 111 (a) respectively. Mere acceptance of rent before the institution of suit in a case falling under Sec. 112 will act as waiver of forfeitu