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The Secretary of State for India Vs. Sir Albert Sassoon and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom513
AppellantThe Secretary of State for India
RespondentSir Albert Sassoon and ors.
Excerpt:
land reclaimed from the sea. - - regarded as a mere question of propriety of language, we cannot doubt that the expression might be used with perfect correctness in either of the senses contended for......not improbable, that had it been contemplated at the time of the preparation of the lease that the land marked b might be dealt with as has actually taken place (which, however, by the agreement is admitted not to have been the case), that event would have been provided for; but as it is, we can only seek to discover the intention of the parties from all parts of the deed. in bland v. crowley (6 ex., 522, see p. 529; s.c., 6 rail. ca., 756), parke, b., says under somewhat similar circumstances--'the question in this case is as to the true construction of a deed, which was prepared apparently in the confidence that, if the bill for making the direct portsmouth railway passed into a law, the promoters would certainly carry the undertaking into effect. had the parties contemplated the.....
Judgment:

Charles Sargent, J.

1. It appears from this statement of facts that the demised premises consisted of two portions marked, in the plan annexed to the lease, A and B, on the first of which an annual rent of Rs. 500 per acre was reserved, whilst on the latter, described as 'being at times covered by the sea,' a purely nominal annual rent of one rupee per acre was reserved--power, however, being given to the lessees to reclaim the same or any part thereof from the sea--in which case an enhanced annual rent of Rs. 500 per acre was reserved on the land so reclaimed. The question, therefore, whether the site of the dock, which is admittedly a portion of the demised premises marked 'B,' is liable to pay the enhanced rent of Rs. 500 or the originally reserved rent of one rupee per acre, must depend upon the answer to be given to the question, whether or no it has been reclaimed from the sea, within the meaning of the lease? It was contended for the lessees that the ordinary meaning of the expression, 'to reclaim land from the sea,' is to convert land which is subject to be overflowed by the sea into dry land, by rendering it secure against the inroads of the sea: but that even if it were capable of receiving another meaning, the language of the lease, and more especially of the power given to the lessees to reclaim the lands marked 'B,' shows that such was the exclusive sense in which the parties intended to use it, and, therefore, that the sea never having been expelled from the land in question except temporarily and very imperfectly, and that, too, only for the purpose of excavating the land and removing the materials, for which express power is given by the lease, and the land being still liable at times to be overflowed by the sea, it cannot be regarded as land 'recovered from the sea.' On the other hand, it was argued for the lessor that 'to reclaim from the sea' does not necessarily mean to secure the land from the inroads of the sea, so that it shall be converted into dryland, but that it includes the creation of a state of things (such as it was said now exists with respect to the land in question) by which the ingress of the sea is so controlled and regulated, and takes place under such conditions, that the land, albeit still liable to be overflowed at times by the sea, can, nevertheless, be applied to a useful mercantile purpose. Regarded as a mere question of propriety of language, we cannot doubt that the expression might be used with perfect correctness in either of the senses contended for. The land in the latter case would be reclaimed from the sea in the figurative sense of being released from its absolute dominion and power, as a man is said to be reclaimed from the dominion of evil habits. Again, by the new condition of things, the land would be reduced to a 'state desired,' one of the senses ascribed to the verb 'reclaim' in the dictionaries of Johnson and Webster, 'the state desired being as' was said in this case, one of great utility to man. But although there may, etymologically, be no impropriety in the use of the expression in the sense contended for by the lessor, we entertain no doubt that in its primary and ordinary sense it signifies, as contended by the lessees, conversion of the land into dry land by rendering it secure from the ingress of the sea with the view to its being used as such. Now, it is possible, and indeed not improbable, that had it been contemplated at the time of the preparation of the lease that the land marked B might be dealt with as has actually taken place (which, however, by the agreement is admitted not to have been the case), that event would have been provided for; but as it is, we can only seek to discover the intention of the parties from all parts of the deed. In Bland v. Crowley (6 Ex., 522, see p. 529; s.c., 6 Rail. Ca., 756), Parke, B., says under somewhat similar circumstances--'The question in this case is as to the true construction of a deed, which was prepared apparently in the confidence that, if the bill for making the direct Portsmouth railway passed into a law, the promoters would certainly carry the undertaking into effect. Had the parties contemplated the possibility that after the bill passed the railway would have been abandoned, it is probable that a distinct provision would have been made for that event, leaving no doubt whatever as to the true intention of the contracting parties. As the deed is framed, some doubt may be entertained as to what the parties would have stipulated if the present state of facts had been presented for their consideration. But all we have now to do is to ascertain the meaning of the words they have actually used; and in construing the deed we must adopt the established rule of construction, to read the words in their ordinary and grammatical sense, and to give them effect, unless such a construction would lead to some absurdity or inconvenience, or would be plainly repugnant to the intention of the parties, to be collected from other parts of the deed.' Now it may be said that the circumstance of only a nominal rent of one rupee being reserved until the land should be reclaimed is of itself sufficient reason for giving the expression, 'reclaim from the sea,' a liberal interpretation. This, however, appears to us to be a consideration not entitled to much weight, for it is quite possible that the inducement to the lessees to pay the very high rent of Rs. 500 per acre for the lands marked A was their obtaining the lands marked B at only one rupee per acre and the possibility of their being able to utilize them, under the powers given by the lease, at a merely nominal rent, provided they did not actually reclaim them from the sea and add them to the neighbouring terra firma included in the portion A. On the other hand, the following considerations are important as showing that the parties intended to use the expression exclusively in its ordinary sense: 1. The lease demises, 'all the piece of land shown in the plan drawn in the margin of the deed and marked A and B, the part thereof marked B being at present at times covered with the sea, together with wharfage and tonnage rights and dues on the usual conditions, and also the right to reclaim from the sea all and so much of the said premises as is now at times covered by the sea.' These words taken in their plain and obvious sense appear to us, as was strongly contended for the lessees, to contrast throughout lands covered at times by the sea with those which are not so subject, and to anticipate the possibility of all or part of the lands so subject to be covered, being brought into the same state as the more highly favoured portion of the demised piece of land. It was said, indeed, that the words covered with the sea in the description of the portion B only state an existing fact, but that the same words in the power to reclaim must be taken to express not only the fact of the land being covered by the sea, but also the idea of its being so at its free will and pleasure, but this would be to give a figurative meaning to the plain language of a formal technical instrument. 2. This deduction from the language of the operative part of the lease derives corroboration from the plan annexed to the lease, and which, by the ruling in Lyle v. Richards (L.R., 1 Eng. and Ir. Ap., 222; Section c., 35 L.J., Q.B., 214; 12 Jur. N.S., 947; 15 L.T., N.S., 1), this Court is bound to look at as being part of the deed. In the margin the lands marked A are described as 'reclaimed ground' and containing A 7--2,410 square yards, and the land marked B 'unreclaimed ground' and containing A 8--1,080 square yards: total 15 acres 3,490 square yards. 3. The circumstance that the higher annual rent of Rs. 500 per acre is reserved from the time the land or any part is reclaimed until the end of the term of 999 years, and that no provision is made for the land ceasing to be used as reclaimed land, shows that the parties contemplated a reclamation of a permanent nature, such as can scarcely be ascribed to a wet dock which loses the reclaimed condition attributed to it by the lessors by the simple removal of the gates. 4. Lastly, if the ordinary sense of the language of the lease be once departed from, it becomes little more than a question of degree, and opens the door to a variety of modes of using the land for which it would be unreasonable to suppose that the parties could have contemplated the same enhanced rent being paid. Thus, if the test be the controlling the overflow of the sea and bringing it under such conditions that the land can be turned to a useful purpose, a wet dock such as has been constructed, a basin for country boats, a break-water with the adjacent lands deepened so as to admit of even larger vessels lying secure under the protection of the break-water and landing their cargoes, and, lastly, a public swimming-bath, would all more or less satisfy the necessary condition, and yet the expected profit to be derived from such different and temporary forms of reclamation would vary within very considerable limits. On the other hand, land permanently reclaimed from the sea and converted into dry land might fairly be charged with the payment of the same rent as the adjoining lands marked A. Upon the whole of the case submitted to us, we think that the lessees in dealing with the portion B of the demised premises as therein stated have not, as to so much thereof as forms the site of the dock, reclaimed it within the meaning of the lease, and must, therefore, declare that the land constituting the dock area coloured green in the plan annexed to the agreement, is only liable to pay a rent at the rate of one rupee per acre per annum, and not, as contended by the plaintiff, at the enhanced rate of Rs. 500 per acre per annum. As the question turns upon the interpretation of a document to which both were parties, and which might, at the instance of either party, have been worded so as to exclude all doubt, we think that each party should bear his own costs.


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