notice.-Hughes v. Metropolitan Ry. Company, L. R. N., App. Cas., 439.

Waiver of forfeiture: acceptance of rent.The acceptance of rent by the landlord after the institution of a suit to recover possession of the land is not a waiver of forfeiture by the tenant under a condition in the lease. A tenant upon payment of all costs of the suit will be relieved from the consequences of such forfeiture, in accordance with the practice of Courts of Equity in England and America.-Temmarsa Puramets v. Baidy, 2 Bom. H. C. R., 70.

If the landlord has once made his election with regard to the exercise of the right of forfeiture and communicated it to the other party it is final.

The principle running through all the cases as to what is an election is this, that Election once made by landlord is final.

where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum, or has indicated it in some other way, that alone will not bind him, but so soon as he has determined not only to follow one of his remedies, but has communicated it to the other side in such a way, as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he has intended it or not if he has done an unequivocal act. I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way-the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.-Scarf v. Jardine, 7 App. Cas., p. 360.

For further notes, see cases under clause (g) to Section

111 ante.

1

1

A notice given under section one hundred and eleven, clause (h), is waived with the express or implied consent of the person to whom it is given, by an act on the part of the person giving it showing and intention to treat the lease as still subsisting.

Illustration.

A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts rent which has come 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.

S. 113, T. P. Act, IV of 1882.

NOTES.

A surety for the payment of rent under a lease is discharged by the tenancy being determined by notice, and a new tenancy is created on the waiver of the notice taking effect on the expiration of the old one.-Tayleur v. Wilden, L. R., 3. Ex., 303.

Giving of new notice.-Generally speaking, giving a second notice to quit amounts to a waiver of a notice previously given.-Doed Brierly v. Palmer, 16th East, 53.

But a good parole notice to quit will not be waived by a subsequent insufficient notice in writing.-Doed Ld. Macartney v. Crick, 5 Esp., 196.

If, after the expiration of a notice to quit, the landlord gave the tenant a fresh notice, that unless he quit in fourteen days,

Second notice confirm

ing the first,

he will be required to pay double the value, the second is no waiver of the first.-Doed Digby v. Steely, Com p., 117; Messenger v. Armstrong, 1 T. R., 53. Woodfall, 12th Ed., pp. 328-9.

CHAPTER XI.

Forfeiture by Non-payment of rent. Forfeiture incurred by non-payment of rent how cured.-Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against forfeiture, and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

S. 114, T. P. Act, IV of 1882.

NOTES.

See notes under Section 111, clause (g), as to the effect of condition as to forfeiture of the lease.

In the following cases the tenant was relieved from forfeiture caused by non-payment of rent where there was express condition as to forfeiture in the event and the condition was regarded only as a penalty.-Kottalupi v. Edavalath Fathan Kambudiri, 6 Mad. H. C., 258.

The condition is invalid apart from the provisions of the T. P. Act, 1882.-Narayan Sanabhogya v. Narayan Nayak, 6 Mad., 327.

Tender of rent, interest and cost on receipt of landlord's notice to quit and deposit of the amount in Court are sufficient grounds for dismissal of the plaintiff's claim for ejectment.-Krishna Samichetti v. Natal Emigration Board, 17 Mad., 216.

Civil Procedure Code, s. 244-Landlord and tenant -Relief against forfeiture for non-payment of rent though stipulation for payment continued in compromise decree-Decree containing general stipulation-Power of Court to relieve against penalty in execution proceedings] Certain lands were held on lease, and the rent fell into arrears. A suit was then brought for the arrears of rent and for possession, but the parties arrived at a compromise and a decree was passed in terms of that compromise. The decree contained a stipulation that if default should be made in payment of rent within the time fixed for payment each year, the lease should be forfeited. Default was made, and possession of the lands and the arrears of rent were sought for in execution of the decree, when it was objected that the stipulation for forfeiture for non-payment of rent was a penal one, and should not be given effect to, even though it was contained in a decree which was capable of execution :-Held, that inasmuch as the decree passed by the Court was a mere adoption of the contract which existed between the parties to it, the Court must be taken to have adopted the contract with all its incidents. It was therefore competent to the Court to relieve against the forfeitureShirekuli Timapa Hegda v. Mahabalya (I. L. R., 10 Bom., 535) dissented from; Rai Balkishen Dass v. Raja Run Bahadoor Singh (L. R., 10 I. A., 162 ; I. L. R., 10 Calc., 305) referred to. Nagappa v. Venkat Rao (I. L. R., 24Mad., 265).

English Law.-At common law no forfeiture on this ground could be enforced without a formal demand having been made according to strict rules. More frequently the above difficulties are got over by an express stipu lation for re-entry on non-payment without any demand or without any "legal or formal" demand in which case the necessity for any demand is dispensed with.-Foa, pp. 543-45.