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Sulleman Haji Ahmed Oomer Vs. Aishabai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 23 of 1930 and Suit No. 322/7078 of 1926
Judge
Reported in(1930)32BOMLR1668; 129Ind.Cas.751
AppellantSulleman Haji Ahmed Oomer
RespondentAishabai
DispositionAppeal allowed
Excerpt:
lease - coverant by landlord-covenant to pay future taxes-erection of new building-increased assessment-liability to pay- city of bombay municipal act ' (bom. iii of 1888), section 147.;where, in a lease, the landlord covenants to pay all rates and taxes in terms clear enough to cover future rates and taxes, the effect of the covenant is that the landlord contracts himself out of the provisions of section 147 of the city of bombay municipal act and is bound to pay the whole of the rates and taxes including the increased assessment due to the additional building which has since been erected on the land demised. - - he says, first of all, that the covenant here is not in the same terms, and is not so strong against the lessor, as the covenant in that case, and he says, secondly, that in..........was not due to any physical alteration in the premises, whereas in this case the lease is a building lease, and the increased assessment is due to the additional building which has been erected.3. i do not think there is any force in these distinctions. it seems to me that the covenant here is a sufficiently clear covenant by the landlord to pay all future rates, taxes and assessments, and as matter of construction is sufficiently clear to cover the building for the time being on the land and the fact that the lease contemplates that a new building will be erected, seems to me rate vise to show that the landlord's covenant was intended to include this new building, than the reverse.4. i think the real point is whether there is any distinction between this case and the previous.....
Judgment:

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

1. This ease raises the question whether the landlord is liable under a covenant in a lease to pay excess tax because of an increase in the assessment after the date of the lease. We had a similar point before us last week (Ismail v. Abdulla : (1930)32BOMLR1660 , and we then decided that if the covenant of the landlord is to pay all rates and taxes in terms clear enough to cover future rates and taxes, then the effect of the covenant is that the landlord has contracted himself out of the provisions of Section 147 of the City of Bombay Municipal Act, and he is bound to pay the whole of the rates and taxes including the increased assessment.

2. The learned Advocate General in that case appeared for the successful party. He does not dispute that that decision is binding upon us, but he says that it is distinguishable on two grounds. He says, first of all, that the covenant here is not in the same terms, and is not so strong against the lessor, as the covenant in that case, and he says, secondly, that in that case the increased assessment was not due to any physical alteration in the premises, whereas in this case the lease is a building lease, and the increased assessment is due to the additional building which has been erected.

3. I do not think there is any force in these distinctions. It seems to me that the covenant here is a sufficiently clear covenant by the landlord to pay all future rates, taxes and assessments, and as matter of construction is sufficiently clear to cover the building for the time being on the land and the fact that the lease contemplates that a new building will be erected, seems to me rate vise to show that the landlord's covenant was intended to include this new building, than the reverse.

4. I think the real point is whether there is any distinction between this case and the previous case on the wording of the covenant.

5. The provisions of the lease here provide, in the first instance, that the lessee will pay the water-rate and that covenant as to water-rate is imposed in respect of any building or structure for the time being standing on the land or any part thereof, so that in that covenant you get an express reference to any building or structure for the time being on the land. Then you get amongst the lessee's covenants in Clause (f) a covenant-

To repair or cause to be repaired, alter or cause to be altered, the bungalow and other structures now standing on the demised premises.

6. So that you get in that covenant a reference to the structures now standing on the demised premises. Then, you get amongst the lessee's covenants in Clause (i) a covenant not to assign, underlet, mortgage, or part with the demised premises or the buildings standing thereon. So that in that covenant you do not get the words 'standing thereon' qualified either by the words 'for the time being' or by the word 'now', but it is quite clear in that clause that the buildings standing thereon must be the buildings for the time being standing thereon.

7. Then when you come to the lessor's covenants, the material one which we have to deal with, is expressed in these terms:

That the Vssor will pay and discharge all rates and taxes and assessments except water-tax now or hereafter payable in respect of the structures standing on the land hereby demised.

Clearly all future taxes are included in that covenant. The only question is whether the words ' in respect of the structures standing on the land ' mean ' structures now standing on the land ' or ' structures for the time being standing on the land,' The learned Advocate General ways that they mean 'structures now standing on the land.' I do not see any reason for reading in the word ' now ' in that covenant. I think the natural meaning of the words is in respect of the structures on the land at the time when the tax becomes payable, and that there is nothing in the rest of the lease to control that meaning. In my view that is the proper meaning to be put upon the covenant.

8. I think, therefore, that this case is covered by the decision which we gave in the former case and that the appeal must be 193 allowed with costs throughout.

9. Rs. 400 deposited to be applied towards the plaintiff's costs.


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