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ismail Essak Chand Nagori Vs. Abdulla Haji Cassum - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 11 of 1930 and Suit No. 1602 of 1928
Judge
Reported in(1930)32BOMLR1660; 129Ind.Cas.748
Appellantismail Essak Chand Nagori
RespondentAbdulla Haji Cassum
DispositionAppeal allowed
Excerpt:
.....of suit.;where, under a lease, the lessee agrees to pay the municipal water tax and the lessor covenants to pay 'all existing and future rates and taxes, charges and outgoings' with reference to the demised property, the effect is that the lessor has contracted himself out of the provisions of section 147 of the city of bombay municipal act, 1888, and he is bound to pay not only the existing but also the increased taxes on the property during the period of the lease.;salctman v. holford [1909] 2 ch. 602, followed.;watson v. home (1827) 7 b. & c. 285, distinguished.;dotritihah v. lipton ltd. (1922) 24 bom. l.r. 479, explained.;where on a demand by the plaintiff the defendant's solicitor sends his cheque, but the former refuses the cheque not on the ground that not being in..........stables, for a term of three years from september 1, 1924, at a monthly rent of rs. 2,501, and the lessee covenanted with the lessor that he would, during the continuance of the term, pay and discharge the municipal bill for water consumed in the premises. that is the only material covenant by the lessee. the lessor covenanted for himself his heirs executors administrators and assigns with the lessee that he would, during the said term, pay all existing and future rates and taxes charges and outgoings whatsoever for the time being payable in respect of the said premises thereby demised except such rates taxes charges and outgoings as were thereinbefore covenanted to be paid by the lessee. so that, apart from the water rate which the lessee has to pay, the lessor is, under the contract.....
Judgment:

J.W.F. Beaumont, C.J.

1. This is an appeal from the decision of Mr. Justice Baker and it raises an important question between lessor and lessee as to the liability to pay property tax based on an increased assessment made after the date of the lease.

2. The lease was made between one Tarmahomed Haji Ali-mahomed, who has since died and whose executors are the plaintiffs, as the lessor and the defendant as the lessee. The lease demised certain property, which consisted of buffalo stables, for a term of three years from September 1, 1924, at a monthly rent of Rs. 2,501, and the lessee covenanted with the lessor that he would, during the continuance of the term, pay and discharge the Municipal bill for water consumed in the premises. That is the only material covenant by the lessee. The lessor covenanted for himself his heirs executors administrators and assigns with the lessee that he would, during the said term, pay all existing and future rates and taxes charges and outgoings whatsoever for the time being payable in respect of the said premises thereby demised except such rates taxes charges and outgoings as were thereinbefore covenanted to be paid by the lessee. So that, apart from the water rate which the lessee has to pay, the lessor is, under the contract between the parties, to pay all existing and future rates and taxes charges and outgoings whatsoever for the time being payable in respect of the demised premises.

3. The question to be determined is what is the effect of that covenant having regard to the provisions of Sections 146 and 147 of the City of Bombay Municipal Act, 1888. Section 146 provides, so far as is material-

(1) Property-taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from Government 01- from the corporation or from a fazendar.'

that does not apply here.

' (2) Otherwise the said taxes shall be primarily leviable...,

(a) if the premises are let, from the lessor.'

Then Section 147 provides :- (1) 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.

This is not a very happily worded section, but, I think, its meaning is tolerably plain. It means that if the rateable value exceeds the amount of rent at which the premises are let, then the landlord is to be entitled to recover-the word used in the section is ' receive ' but I think that must mean ' recover '-from the tenant the tax attributable to that excess.

4. Now, the point really for decision in this case is whether a landlord can enforce that right of recovering part of the tax from his lessee, when he has, in the contract between himself and his lessee, covenanted that he will be liable for all present and future taxes chargeable in respect of the property.

5. Dealing with the matter apart from authority, I should say that it is quite clear that the landlord cannot recover in such a case. He has agreed with his lessee that as between himself and the lessee he will be liable for all the rates and taxes, and if he seeks to recover a part of the taxes from the lessee under the statutory right given to him by Section 147, it seems to me that he is committing a breach of his agreement with the lessee. But Mr. Manekshah says that we are not at liberty to give that meaning to the agreement between the parties, because of various eases to which he has drawn our attention.

6. The first case which he relies on is Watson v. Home (1827) 7 B. & C. 288, and he say a that that case lays down the principle that in construing covenants between lessors and lessees as to payment of rates and taxes, the Court is justified in imposing an equitable distribution of the incidents of taxation between the parties apart apparently from the language which the parties themselves have chosen to use in framing their agreement. The marginal note in Watson v. Home is this-

By lease, lessor demised for a terra of years a piece of ground at a fixed annual rent. The tenant covenanted not to build on the land without the licence of the lessor. The lessor covenanted to pay all taxes already charged or to he charged upon or in respect of the demised piece of ground during the continuance of the term. At the time when the lease was executed, the lessor gave a licence to the lessee to build on the land demised. The lessee did build, and thereby increased the annual value of the premises: Held, that the landlord was liable upon his covenant to pay the taxes in proportion to the rent reserved, and not to the improved value.

I think it is very difficult to read that case without coming to the conclusion that the Court really imposed upon the parties a bargain different to the one which they had made for themselves.

7. The Court of Appeal in England, in a recent case, Salaman v. Holford [1909] 2 Ch. 602, have explained the case of Watson v. Home. All the members of the Court say that the case turned on the construction of the particular document there in question, and Lord Cozens-Hardy further pointed out that the covenant in Watson v. Home was a covenant by the landlord to pay the taxes in respect of the property demised, which was unbuilt upon land, and really all that the Court held was that the covenant as matter of construction did not apply to the buildings upon the land erected after the lease. Whatever the true explanation of Watson v. Home may be, I think it cannot be treated as laying down any principle applicable to the construction of leases generally.

8. Then Mr. Manekshah has referred us to the English cases dealing with land tax-cases beginning with Smith v. Humble (1854) 15 C.B. 321 and ending with Mansfield v. Relf [1908] 1 K.B. 71. Those cases do seem to lay down the general proposition that in construing a covenant by the lessor to pay the land tax the covenant is to be held only as applying to such proportion of the land tax as is attributable to the lessor's interest in the land. Land tax is leviables under an Act which is Worded In quite different language to that used in the City of Bombay Municipal Act, and authorities upon the Land Tax Act cannot therefore be authorities on the Bombay Municipal Act, and it seems to me unnecessary to consider the exact principle on which those English cases were decided. It is, in my opinion, impossible to contend that they lay down any principle which ought to govern the construction of the Bombay Act.

9. The only case to which we have been referred dealing with the Bombay Act is Daraakah v. Lipton Ltd. : AIR1923Bom70 . There the words of the covenant were ' to let at a monthly rent of Bs. 600 only payable monthly including all rates and taxes whatsoever,' so that the words were a good deal less wide than the words we have to deal with in the present case. They did not refer expressly to any future sales or taxes, Sir Norman Macleod in his judgment says (p. 483):-

The only question is whether the lessor under this lease contracted himself out of the protection afforded to him by Section 147.

10. Lower down, he says :--

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.

I think there must be some slip in the report there, It Was not a question of evidence, documentary or oral. It was a pure question of the wording of the contract between the parties and I think what the learned Judge meant to say was that in the lease with which he was dealing in that case, the words were not sufficiently strong to show that the landlord had contracted him* self out of the benefit of Section 147. That case is clearly distinguishable on the words of the lease from the present case. I think that if we were to hold in this case that the landlord had not contracted himself out of the benefit conferred upon him by a 14? we should be, in effect, holding that it is impossible for a landlord to contract himself out of that section unless he expressly refers to it. There is nothing in the Act which requires us to come to such a conclusion and I am not prepared to hold that the landlord cannot contract himself out of this section without expressly or implledly referring to it. I think, as I have said, the question' really is what was the bargain arrived at between the parties. In this case the parties agreed that the landlord should pay the existing and future taxes, and therefore he must pay them.

11. The result is that on the main issue the appeal succeeds.

12. There was another issue as to the payment of the water-rate which admittedly the lessee had to pay. The lessee on July 18, 1928, before the suit was instituted, sent a solicitor's cheque for the amount and that cheque was refused because the plaintiffs claimed that more was due They did not take the objection that they were not prepared to accept the cheque as legal tender. Subsequently, the amount of the cheque was paid into Court. 1 think that the solicitor's cheque, being refused by the plaintiffs on the ground that it was for a wrong amount and not on the ground that it did not amount to payment in cash, was a good tender. Accordingly, the defendants are entitled to the general costs of the action and the costs of the appeal.

13. I think the plaintiffs are entitled to the costs of issues 3 and 4.

14. Appeal allowed with costs. Plaintiffs to pay the costs of the action except the costs on issues Nos. 3 and 4, which are to be paid by the defendant. Costs of the second counter-claim to be paid by the defendant. It is also agreed that there will be no costs of the printing of those documents which were not put in in the Court below. The plaintiffs to be at liberty to withdraw the amount deposited in Court.

Blackwell, J.

15. I am of the same opinion. The lessor's covenant, with which we are concerned, seems to me plainly and unambiguously to impose upon the lessor as between himself and the lessee the obligation to pay all existing and future rates and taxes charges and outgoings whatsoever for the time being payable in respect of the said premises except as therein provided.

16. Mr. Manekshah has invited us to construe this covenant as imposing upon the lessor the obligation to pay only such rates and taxes as by the existing law would be payable by him apart from any right to recover from the lessee. In my opinion, it is not reasonable to construe this covenant in the sense contended for by Mr. Maaekshah. Both the parties entering into this lease must be presumed to have known the law. They must be presumed to have known that by virtue of Section 347 of the City of Bombay Municipal Act of 1858, the lessor would have been entitled to receive from his tenant any excess assessment if the rateable value of the premises exceeded the amount of rent payable in respect thereof. There is, it is true, no reference to Section 147 in the covenant, but the words used are, in my opinion, as wide as they could possibly be with a view to imposing upon the lessor the existing and future rates and taxes charges and outgoings whatsoever and thereby excluding the operation of Section 147. In my opinion, it is competent for a lessor to contract himself out of Section 147, and I think that the words used here clearly and unambiguously show an intention on the part of the parties to contract out of the statutory provision.

17. The present case appears to me to be almost on all fours with the decision in Salaman v. Holford [1909] 2 Ch. 602, where the words of the , covenant were very near to the words in the covenant which we have to construe.

18. Mr. Manekshah has relied on the case of Watson v. Home (1827) 7 B. & C. 285. The learned Master of the Rolls in Salamun v. Holfuod has clearly pointed out the distinction between that class of case and the case before us now. I respectfully agree with his opinion.

19. Mr. Manekhhah also relied upon the English land tax cases. In my opinion, they have no application whatever to the case which is before us. Lord Justice Fletcher Moulton, in the course of his judgment in Shiftman v. Holford, said as follows (p. 607):-

I do not think that the question as to whether persons bear more or less of the burden-whether they are in the favourable position of receiving revenue without bearing their share of burden-ought to influence us in construing a clear covenant.

20. In my opinion, the covenant, in this case, is clear, and although the raising of this assessment undoubtedly imposed a much higher burden upon the lessor, in my judgment that ought not to affect the question at all, if the words of the covenant are, as 1 hold them to be, plain and unambiguous.

21. As regards the question of the costs of the suit in my opinion, the plaintiffs, on the finding of the learned Judge, which has not been questioned, that the costs of the lease were payable by the parties half and half, ought to have accepted the cheque which was tendered by the defendants. Having regard to the opinion which we have formed on the other part of the case the plea of tender succeeds, the plaintiffs not having objected to the cheque as such but only to the amount thereof. Accordingly the plaintiffs' case entirely fails and it should, in my opinion, be dismissed with costs. There are, however, the issues which the learned Chief Justice has referred to, viz., issues 3 and 4 which were unnecessarily raised by the defendants and in regard to which they should, in my opinion, bear the costs.

22. I agree with the learned Chief Justice that this appeal must be allowed. Appeal allowed.


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