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State of Kerala v. Joseph & Company

Transfer of Property Act 1882 – Ss. 111 (g) & 112 – Determination of Lease – Waiver of forfeiture – lessee has executed an absolute sale deed in respect of the leased land which belongs to the government – Such breach cannot be condoned.

All that Clause 12 signifies is that if default is reported and if such default is not remedied then termination can be made after issue of notice and hearing. The cause for termination will be the default and permitting to remedy the same is only an indulgence to be shown. Therefore, the learned Division Bench was not justified in its conclusion that the non­issue of notice and not providing opportunity to remedy the default is fatal. In the instant facts, the reading of the lease deed as a whole would indicate that the right reserved to the lessor under Clause 14 is independent of Clause 12 and if the breach of that nature occurs, it is irreversible and it will have to be taken to its logical conclusion unless the lessor waives the right thereunder.

Transfer of Property Act 1882 – breach if committed by subletting or assigning, the same would lead to its consequences and the liberty to remedy the same is not mandatory.

Words and Phrases – ‘default’ – ‘breach’ – Dictionary meaning of ‘default’ is; failure to fulfil an obligation, while the meaning of ‘breach’ is an act of breaking a law, agreement or code of conduct.

For Petitioner(s) Mr. Jishnu M.L., Adv. Mr. G. Prakash, AOR Ms. Priyanka Prakash, Adv. Ms. Beena Prakash, Adv. For Respondent(s) Mr. Thomas P. Joseph, Sr. Adv. Mr. Prashant Padmanabhan, AOR Mr. John Joseph Vettikkad, Adv. Mr. Dinny Thomas, Adv. Mr. Asish Sarkar, Adv. Mr. M. P. Vinod, AOR.

Hon’ble Mr. Justice A.S. Bopanna pronounced the Judgment of the Bench comprising Hon’ble Mr. Justice Hemant Gupta and His Lordship.

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