Last Updated on
Richard Garth, C.J.
1. The plaintiffs in this suit are some of the representatives in title of one Bibi Noorun, who granted a (sic)uokurari lease to the defendants’ predecessors in title, so long ago as the 25th Bysack 1232.
2. The suit is brought to eject the defendants from the property upon the ground that they have been guilty of certain breaches of covenant; and that, consequently, under a condition of re-entry contained in the lease, they have forfeited their tenure. The other representatives of Bibi Noorun’s interest, who are co-sharers with the plaintiffs in her estate, are averse to bringing this suit, and consequently they have been made defendants.
3. The Court below has dismissed the suit on several grounds, and amongst others, that the defendants have not been guilty of the breaches of covenant with which they were charged.
4. From this decision the plaintiffs have appealed; and we think that we may dismiss the appeal upon this one ground only, that one or more of several joint lessors have no right to take advantage of a forfeiture against the will of their co-lessors. The law is opposed to forfeitures; and unless we find that the right now claimed by the plaintiffs is clearly conferred upon them by the mokurari lease, we ough not to allow them to enforce it.
5. At the time when the ease was granted, Bibi Noorun was the sole oWner of the property, and as such the sale lesson. Since that time her estate has descended to several persons, who are all joint owners of her interest, and jointly entitled to the rent of the mokurari. They are also jointly entitled to the benefit of the covenants, and of the Condition of re-entry upon breach of those covenants, and it is optional with them all, whether they will take advantage of the condition or not.
6. The lease contains several covenants on the part of the mokuraridars, and then comes the forfeiture clause in this form: ” If such things take place, then the Sarkar shall have power to cancel the mokurari lease and take seer possession.” It is clear, therefore, that the lease does not become void upon breach of any of the covenants; but the lesson or her assigns, may take advantage of the condition or not as they think proper.
7. Under these circumstances, by the English law, not only would one or more of the joint lessors have no right to take advantage of the condition without the consent of the others, but if the joint lessors had, by agreement, made a partition of their shares, the condition would be at an and, because only those entitled to the lessor’s interest in the whole property could avail themselves of it [see Wright v. Burroughes (3 C. B., 699) and Dumpor’s Case, (Sm. L. C., 7th ed., 41) and cases there cited].
8. Whether a voluntary partition in this country would have the same effect, we are not called upon in this case to decide. But, quite apart from English law, it seems to us that, according to the just and reasonable construction of a condition of this kind, where it is optional with several joint lessors to avail themselves of the condition or not, one or more of those lessors cannot legally insist upon a forfeiture without the consent of the others. The case of Alum Manjee v. A shad All (16 W. R., 138) to which we were referred in the course of the argument, appears to be in point ; but we think that no authority is required for such a position.
9. The appeal must be dismissed with cost; but we allow one set of costs only.