Norman Macleod, C.J.
1. The plaintiff purchased a certain property in Apollo Street, which had been leased by his vendor on the 29th June 1915 for a period of three years certain and three years optional to Messrs. Lipton & Co. at a monthly rent of Rs. 600, including all rates and taxes whatsoever. Messrs, Lipton & Co. sub-let a considerable portion of the premises at a very high rent, in consequence of which the Municipality raised the assessment for 1920-21 and 1921-22, basing it not on the rent payable by Messrs; Lipton & Co. under the lease, but on the rent received by them from their sub-tenants, plus a proportionate rent at the same rate for the premises which were in their occupation. The result is that the landlord is called on to pay taxes on the assessment of over Rs. 31,000 instead of under Rs. 7,000; and he claims the protection of Section 147 of the City of Bombay Municipal Act. That section says:-
If any premises assessed to any property-tax are let, and their rateable value exceeds the amount of rent payable in respect thereof to the person from whom, under the provisions of the last preceding section, the said tax is leviable, the said person shall be entitled to receive from his tenant the difference between the amount of the property tax levied from him and the amount which would be leviable from him if the said tax were calculated on the amount of rent payable to him.
2. That is a somewhat involved section; but it means this, that the lessor from whom taxes are leviable under Section 146 has a claim against a tenant if the rateable value of the premises exceeds the amount of rent payable by the tenant. The only question is whether the lessor under this lease contracted himself out of the protection afforded to him by Section 147. Ordinarily, when the lease was granted, it would be intended that the lessor should be liable to pay the taxes which would be based on the rent payable under the lease, and it is difficult to see that the parties contemplated that in case of an increase in the assessment by the Municipality, the responsibility for paying the tax in accordance with that increased assessment should fall on the landlord and not on the tenant. Regarding the protection afforded by Section 147 it seems to us that we should require stronger documentary evidence than we have to satisfy us that the parties intended that however much the rateable value might be increased in the future over and above the rent payable under the lease, still the landlord would have to pay the whole of the tax.
3. It is sufficient, therefore, for us to say, in answer to the questions referred, that Section 147 of the City of Bombay Municipal Act affords relief to the plaintiff in the circumstances of the case, and that his predecessor-in-title did not contract himself out of the protection afforded by the section.
4. It is not necessary, therefore, to consider the question whether the plaintiff could have validly contracted himself out of the section.
5. Costs taxed as on the Original Side to be costs in the case.