Page, J - (1.)On 23 August 1910 the predecessor-in-title of the plaintiffs let the premises in suit, now known as No. 7-2, Halliday Street, Central Avenue, Calcutta, to the predecessor of defendants 1 and 2 for a term of 61 years. On 7 May 1923 defendants 1 and 3 mortgaged the said lease by way of sub-demise to defendant 3. On 20 August 1923 the plaintiff through his solicitors informed the defendants that he regarded the lease of 23 August 1910 as having been determined by reason of the execution of the mortgage of 7 May 1923, which he alleged operated as a breach of the sixth covenant in the lease to be performed by the lessees. On 30 June 1925 defendants 1 and 2 became insolvent, and subsequently, pursuant to an order of Court, the official assignee in the Court of the Judicial Commissioner of Sind was added as a party defendant.
(2.)Two defences have been raised by defendants, one involving an issue of fact, the other an issue of law. The issue of fact is whether by the acceptance of rent, after the plaintiffs had become aware of the mortgage, the forfeiture (if any) was waived. The issue of law is whether, having regard to the terms of the lease and the mortgage, and in particular the fifth and sixth covenants in the lease and Clause 3 of the mortgage, a forfeiture of the lease took place.
(3.)The fifth covenant by the lessee is to the following effect: 5th. That the said lessee shall be at liberty or shall have the full power and Page 2 of 4 authority without having recourse to previously securing to that effect the consent of the said lessor, written or verbal, to underlet the said demised land and the buildings, structures, sheds, godowns, stables or any portion thereof to be so erected and built by them as aforesaid. 6th. The said lessees, shall have no power, save amongst themselves as hereafter mentioned to assign transfer or in any way to alienate their right, title and interest in the demised land and the buildings so to be erected by them thereon as aforesaid created by virtue of these presents.