Kondath Chathoth Kunhi Raman Nambiar vs Cheriyalanthot Aniyath Elambilan Kunhi Kannan Nambiar and Others

Venkatasubba Rao, J.—The cases cited by Mr. Nambiar, granting that they have been correctly decided, are easily distinguishable. His

contention amounts to this, that a lessee can in suit for rent, claim abatement, however trifling or trivial the deterioration is that the leased property

has undergone. Not one of the cases cited by him lends support to this doctrine. He strongly relies upon the observations of Sir Barnes Peacock,

C.J., in two old Calcutta decisions Afsurooddeen v. Musst. Shorooshee Bula Debee (1863) Marshall''s Reports, p. 558 and Sheikh Enayetoolah

v. Sheikh Elahee Buksh (1864) S.W.R. Gap. Vol. (Act X Rulings) p. 42. In both of them the abatement was allowed on the ground that a portion

of the property leased was washed away. The learned Chief Justice makes the following observations:

We think that that rule is founded on the principles of natural justice and equity, that, if a landlord let his land at a certain rent to be paid during the

period of occupation, and the land is, by the act of God, put in such a state that the tenant cannot enjoy, the tenant is entitled to an abatement.

The two cases to which I have referred were decided in 1863 and 1864 respectively. Sir Barnes Peacock, C.J., quotes with approval the

following rule Laid down in Bacon''s Abridgment and follows it:

In this place we are to consider whether the tenant shall pay the whole rent, though part of the thing demised be lost, and of no profit to him, or

though the use of the whole be for some time intercepted, or taken away without his default; and here it seems extremely reasonable that, if the use

of the thing be entirely lost or taken away from the tenant, the rent ought to be abated or apportioned, because the title to the rent is founded upon

this presumption, that the tenant enjoyed the thing during the contract; and therefore, if part of the land be surrounded or covered with the sea, this

being the act of God, the tenant shall not suffer by it, because the tenant, without his default, wants the enjoyment of part of the thing which was the

consideration of his paying the rent; nor has the lessee reason to complain, because, if the land had been in his own hands, he must have lost the

benefit of so much as the sea has covered.

Whether this rule is reconcilable with the law as Laid down in the more recent English decisions on the point, such as Matthey v. Curling (1922)

2 A.C. 180 , it is unnecessary for me to enquire. The effect of those decisions is thus stated in Redman''s Landlord and Tenant, (1924) 8th edition,

p. 447.

If the thing demised is destroyed or rendered uninhabitable by fire, flood, tempest, lightning, the violence of a mob, or the occupation of an invading

Army, the tenant still remains liable for the full rent throughout the remainder of the term unless the lease contains an express stipulation to the

contrary.

Sukhraj Rai v. Ganga Dayal Singh (1921) 63 I.C. 219 (Pat.) and Salimullah v. Kali Prosonno Parbat (1915) 33 I.C. 349 , arose under special

Acts and can hardly he relied upon as supporting Mr. Nambiar''s contention. In Kunhayen Haji v. Mayan (1893) 4 M.L.J. 21 : ILR 17 Mad. 98,

the case turned upon the express provision of the Transfer of Property Act and has therefore no bearing on the present question. In Subramania

Pattar Vs. Kattamballi Rama, , the learned Judges basing their decision on the two Calcutta cases referred to above, held that where the value of

the land leased was inundated by sea-water and became unfit for cultivation, the tenant, could in the suit brought to recover rent, claim abatement.

This case is, like the other cases already mentioned, clearly distinguishable from the case in hand, but I cannot help remarking that there is at least

one passage in the judgment which is open to question. The learned Judges observe,

Therefore, even under the Transfer of Property Act, following these authorities, the word, ""flood"" may have to be restricted to flooding by other

than sea water.

I fail to see the justification for the restricted meaning of the word ''flood'' in Section 108(B)(e), nor am I able to understand how this conclusion

follows from even the judgment of the learned Judges.

This being an agricultural lease, Section 108 (B)(e) of the Transfer of Property Act does not in terms apply, but it may be contended that by

analogy the principle underlying it as a rule of justice and equity may be invoked. But that section requires that any material part of the property,

owing to any of the specified causes, should have been wholly destroyed or rendered substantially and permanently unfit for the purposes for which

it was let. What has been proved here at the most is, that some of the trees on the land perished or decayed in the ordinary course of nature. On

such on inadequate ground, a Court acting u/s 108 will not adjudge a lease void.

I therefore hold that the lower Court''s judgment cannot be supported. I accordingly pass a decree for the amount claimed with interest at 6 per

cent per annum from the date of the plaint and full costs here and in the lower Court.