Perera V. Perera Et Al.

Present : Mr. Justice Wood Renton.

PERERA v. PERERA et al.

C. R., Pasyala, 3,292

Lease - Clause of forfeiture- Enforcement -Belief-English Law Roman-Dutch Law-

    A clause of forfeiture in a lease for non-payment of rent is only intended as security for the due payment of the rent; and both under the English Law and under the Roman-Dutch Law a lessee is entitled to relief against such forfeiture, even where the lessor has regained peaceable possession without the assistance of any Court of Law.

    A clause of forfeiture cannot be enforced, except by appropriate judicial proceedings, in the course of which it would be competent for the lessee to set up, as against his lessor or any one claiming under him, all equitable rights to compensation.

    APPEAL  from a judgment of the Commissioner of requests (Peter de Saram, Esq.).

    The facts and arguments are fully stated in the judgment.

    Bawa, for the plaintiff, appellant

    Van Langenberg, for the defendants, respondents.

Cur. adv. vult.

    8th July, 1907.WOOD RENTON J.-

    In my opinion, this appeal must fail. The plaintiff-appellant sued the defendant-respondents to recover the sum of Rs.70, being the value of the ground share of a crop of paddy removed by them from a land called Pillewa in the village of Bataliya. The owner of this land, Paul Abraham Appuhamy, had leased it to the first respondent for five years from 18th April, 1902; and the second, third, and fourth respondents were cultivators under the first. The lease contained a clause of forfeiture in default of payment by the lessee of any of the yearly instalments by which the rent was made payable, and the lessor expressly reserved to himself the power of " releasing the lease after amicably settling the amount due to the lessee, " if he desired to sell the land. By deed of 2nd December, 1905, Appuhamy sold the land to the appellant, free from incumbrances, and without any reference to the first respondent's lease. At the date of this sale the first respondent

was in arrear with the payment of his rent, but he alleges that Appuhamy, on his side, was indebted to him for the value of improvements. In view of the course that the case has taken, it is unnecessary for me to go into the state of accounts between the parties. On 4th December, 1905, Appuhamy wrote to the first respondent intimating to him that he had sold the land " and the remaining term of the lease " to the appellant, and requesting him to pay the rent to the appellant thenceforward. On the following day the appellant, through his proctor, wrote both to the first respondent informing him of the sale and requiring him to pay the rent for the then current month and to deliver up the premises on the 31st December, and also to the second, third, and fourth respondents demanding, by right of his purchase, the ground share of the existing paddy crop. The first respondent, by proctor's letter dated 24th January, 1905, agreed to deliver up possession on satisfactory proof of the appellants title and to pay rent to the appellant up to the date of such delivery. The appellant has obtained possession of the land. The paddy crop has, however, been reaped by the respondents. The appellant admits the claim of the second, third, and fourth respondents to the cultivators' share, and he sues only for the ground share, which has been assessed by the Police Vidane of Bataliya and three minor headmen at Rs.70. The Commissioner of Requests has dismissed the appellant's action substantially on the ground that the first respondent's lease was still in force at the date of the sale, and that therefore the appellant had no right to the ground share of the crop, which appears from the evidence to have been sown about the Sinhalese New Year, 1905, and to have been nearly ripe in the following December. In effect I think that this decision is sound, although 1 propose to state my own

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