1. The plaintiff, (respondent in Second Appeal No. 163 of 1924), who holds the suit land on Mullen, tenure under the defendants at a fixed and invariable rent, sues for an abatement of his rent on the ground, inter alia, that the land has now become exposed to inundation from the sea. The trial Judge dismissed bis suit. But on appeal his claim was allowed by the learned District Judge, who says :-
Appellant reliea on I. L B. 43 Mad. 132. Respondents reply that the lease then in question was one for twenty years and that the same principle cannot apply in the case of a perpetual tenancy; the proper remedy is a surrender of the tenancy which respondents are willing to accept. Appellant, however, has a right), which practically amounts to ownership. He is not willing to surrender it and defendants' readiness to accept the surrender nhowa that the land is not without value. The Madras case quoted recognises the principle of abatement in such cases and the question of the length of the tenancy does not appear to be material. The order for abatement may be limited to the period during which the reason for abatement continues. There ia evidence that the suit hind has deteriorated and that the rents of surrounding lands have decreased; this evidence may, in the circumstances, be accepted. I hold, therefore, that the appellant is entitled to abatement on the ground of deterioration due to inundation from the sea.
3. He, therefore, declared that as the suit land had deteriorated on account of the inundation of the sea, plaintiff was entitled to an abatement of 7% Khaudis plus five annas six pies cash; the declaration to remain in force until it was shown that for any reason the suit land should bear a higher rental. The main question for consideration in this appeal is whether on the facts of this case the plaintiff is entitled to proportionate abatement.
4. It is urged for the defendants that the general rule is that the tenant takes the demised premises subject to any defects existing in them at the time of the letting; and to any events which subsequently affect their value (Halsbury, Vol. XVIII, section 962). This rule is, however, subject to exceptions; and it is urged that in the events that have happened the plaintiff's only remedy is the one to be found in Section 108 (e) of the Transfer of Property Act, 18b2, which is in these terms:
If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material pert of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.
5. The provisions of that section, however, are not in terms applicable to this case for two reasons : (1) the Act was not extended to the Bombay Presidency until January 1,1893; therefore its provisions do not affect the rights and liabilities arising out of the legal relation which in this case was constituted by the agreement (Exhibit 39), in the year 1889 (see section 2); and (2) this being a lease for agricultural purposes, the provisions of B. 108 (e) do not apply to it (s. 117). That being so it is contended for the plaintiff that his right to claim abatement is founded on the principles of natural justice and equity, and that it was recognised in this country before the enactment of the said Act. The plaintiff's contention, it is said, derives support from the judgment of Sir Barnes Peacock C. J. in Sheik Enayutoollah v. Sheik Elaheebukah (1884) W. R. (Gap. No.) 42 (Act X of 1869 Rulings). In that case the tenant sued for an abatement of his rent upon the ground that a part of his land had been washed away, and that a part of it had been covered with sand. The learned Chief Justice referred to the following passage in Bacon's Abridgment 7th Edition, Vol. VII, p. 63 (p, 43):. 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 Ma paying the rent; nor has the lessee reason to complain, because, If the land bad been in his own hands, he must have lost the benefit of so much as the sea has covered.
6. His lordship then proceeds (p. 43) :
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 first question then is, whether there was any stipulation in the kubooleut, which precluded the tenant from claiming abatement it, by the act of God, any portion of his land were washed away.
7. The case was then directed to be sent back to the first Court to try upon the merits, whether the Kubooleut contained any stipulation that the tenant should not have an abatement, if part of the land should be washed away. Then comes the following passage on which the plaintiff relies (p. 44):
If the Judge find that the terms of the kubooleut do not preclude the tenant from claiming an abatement in proposition to the land washed away, the case will have to be tried upon the merits, whether any portion of the land was washed away, and whether any portion of it was subsequently regained, because on that will depend whether the tenant is entitled to any and what abatement. If the land was re-formed, the abatement would cense from the time the regained land became as good as it was before if it was not, so good, the tenant would be entitled to an allowance for the injury done by the act of God. With regard to the land alleged to have been covered by sand, the Judge of the first Court will have to enquire if that portion was covered, by sand, and thereby deteriorated, or rendered wholly useless) because if the land has bean deteriorated, or rendered wholly useless by the act of God, the tenant would be entitled to an abatement, provided there was no stipulation to the contrary in the kubooleut.
8. I was at one time inclined to think that the plaintiff's contention did derive support from the observations quoted above. On further consideration, however, I agree with my learned brother in the view that the learned Chief Justice was dealing with a case where a part of the land had been completely washed away, and another part had been covered with sand so as to render it wholly useless for cultivation. The judgment of Sir Barnes Peacock was followed in Subrnmania Pattar v. Kattamballi Rama I. L. R.(1919) Mad. 132 as being in accordance with principles of natural justice, But that was a case of a portion of the demised premises becoming unfit for cultivation by reason of inundation from the sea. In Uma Sunkur Sirkar v. Tarini Chunder Singh I. L. R.(1882) Cal. 571 the patnidar was allowed abatement of rent on the ground that part of the land included in the patni tenure had been acquired by the Government for public purposes, although the Kabuliat executed by him contained the provision that he would make no objection on the score of division or any other cause to pay the rent fixed or reserved by [the] Kabuliat. The ground of the decision was that the parties must be taken to have left the question as to abatement of rent to the general law of the country. It was, however, a case of total loss of enjoyment of a part of the land held under the patni lease.
9. The general rule is thus enunciated in Story's Equity Juris-prudence, 3rd English Edition, Section 101 (p. 48):-
In matters of positive contract and obligation, created by the party (for it is different in obligations or duties created by law), it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident; or, that he has been in no default; or, that he has been prevented by accident from deriving the full benefit of the contract on his own side... The reason is, that he might have provided for such contingencies by his contract, if he had as chosen; and the law will presume the intentional general liability, where he has made no exception.
10. In this country, Courts have long recognised the tenant's right to an abatement of rent where the property demised is lost, wholly or in part, by causes beyond his control. In this Case, the lower Court finds that the productive capacity of the land has decreased by reason of the inundation, but the land has not become wholly unfit for cultivation. Local laws, applicable to various other provinces (e. g. The Punjab Tenancy Act, 1887, and the North-Western Provinces Tenancy Act, 1901) do enable a tenant to sue for abatement of rent on the ground that the productive powers of the land held by him have been decreased by causes beyond his control. There is no such enactment in force in this Presidency; and the plaintiff has not alleged or proved such usage.
11. On a fuller consideration of the subject, I concur with my learned brother in the order which he has proposed in Second Appeal No. 163. It follows that Second Appeal No. 164 fails and must be dismissed with costs. The only question argued in that appeal was-what rent was the plaintiff liable to pay from 1915-16 to 1920-21 The defendant obtained a decree for the stipulated rent for that period in small cause suit No. 494 of 1921. That suit was decided in accordance with the findings recorded by the trial Court in this case. The decree is not appealable. Moreover, if the plaintiff is not entitled to an abatement he is liable to pay the stipulated rent.
12. In this case the main question is whether abatement of rent can be claimed for land, which has not been entirely washed away or covered by sea-water, or rendered entirely useless for cultivation by its liability to inundation by sea-water. The facts found here are that the land can still be cultivated but its productive powers have deteriorated from its liability to inundation at high water. Paddy can still be raised though of an inferior kind to that formerly grown.
13. There is no legislation in the Bombay Presidency such as there is in other parts of India, (cf. Bengal Act VIII of 1885, Sections 38 and 52; Bengal Act VI of 1908, Sections 35 and 36; Central Provinces Act XI of 1898, Sections 15 and 18; Madras Act I of 1908, Sections 38, 39 and 42; Oudh Act XXII of 1868, Sections 18,29 and 35 B; Punjab Act XVI of 1887, Sections 20-26; United Provinces Act II of 1901, as 41-48) which permits of abatement of rent in the case of such deterioration as opposed to the case of total loss of the land held on tenancy, or part thereof. The Bombay Land Revenue Code also contains no provisions for abatement of assessment, except in the case of land, not less than half an acre in extent, being lost by diluvion (s. 47 of Bombay Act V of 1879, as amended by Bombay Act IV of 1913).
14. The contract between the parties gives no ground for a revision of the rent because of this deterioration. It fixes the rent 'from generation to generation,' i. e, in perpetuity : and (so far as its terms are concerned) just as the landlord could not claim to enhance the rent because the land became more productive from some accidental circumstance after the ' Mullen' lease was granted, so in principle I think the grantee cannot claim a reduction of rent because of the deterioration of the soil. The Bombay Gazetteer (Kanara), Vol. XV, Part II, p. 186, describes 'mulgenidars' like the plaintiff as 'a class of people...who on condition of the payment of a specified invariable rent to the muli or landlord and his successors obtained from him a perpetual grant of a certain portion of land to be held by them and their heirs for ever. ... The landlord and his heirs were precluded from raising the rent, of the permanent lessee.' It also points out that a difficulty arose out of the 1 survey settlement sometimes fixing an assessment in excess of the rent fixed in the mulgeni deed, and consequently ' most of the Mullen deeds executed since the survey began contain the stipulation that if the assessment is increased the lessee will pay the enhanced amount.' The Mulgeni lease in this case (Exhibit 39) contains this latter stipulation; and an inference, therefore, arises that (at any rate BO long as the land leased remained available for cultivation) the fixed rent should be invariable and not liable to enhancement except in the one case stipulated for, viz., the Government assessment being increased.
15. Prima facie, therefore, it seems to roe to be a case where the English law should be followed. This is that (subject to certain well-defined exception;:.) the rent fixed by agreement must be paid, although the lessee sutlers from an uncontrollable circumstance like the one under consideration. Thus Addison's Law of Contracts, 11th Ed. , p. 674, states the law as follows:-'Although, therefore, houses become ruinous and fall down, and fences and crops be destroyed by floods, or burned by lightning or accidental fire, or be thrown down by enemies, yet is the tenant liable to pay the rent so long as the land remains to him, and his legal title to the occupation and use thereof continues.' I may refer also to Halsbury's Laws of England, Vol. XVIII, art 962 at p, 481, and the case of Earl of Meuth v. Cuthbert (1876) 10 I. R. C. L. 395which relates to premises near the sea shore, that became devastated by the sea, but not ' altogether and inevitably submerged.' It is only when a part of the premises leased is entirely lost by inundation of the sea that English law allows an abatement of rent on that account: cf. Halsbury, Vol. XVI, art 964 at p. 484. Thisison the principle stated in Bacon's Abridgment, 7th Edition, Vol. VII, p. 6-t, that 'it seems extremely reasonable that, if the use of the thing [ demised ] 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 enjoys the thing during the contract,
16. The principles of English law, applicable to a similar state of circumstances, unless shown to be inapplicable to Indian society and circumstances, sire to be taken as a guide in determining a suit according to 'justice, equity and good conscience' under Section 20 of Bom. Reg IV of 1827, cf, Webbe v. Lester (1866) 2 B. H. C. R. 52 Varden Seth Sam v. Luckputhy Royjee Lallah (1862) 9 M. I. A. 303 and Wughela Rajeanji v. Shekh Masludin I. L. R. (1887) 11 Bom. 551 I can bee no sufficient ground for holding the English law inapplicable to the condition of a case like the present, especially in view of the intended permanency of the rent that I have already mentioned.
17. Nor do I think that there is any real authority for a different rule being applied in India, apart from special legislation on the subject, such as I have already alluded to In Sheik Enayutoollah v Sheila Elaheebuksh (1881) W. R. 42 (Gap. No.) (Act X of 1859 Rulings) the Court expressly follows the rule laid down in the Bacon's Abridgment that I have mentioned, and says (p.43>: - 'We think that that rule in 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 hind is, by the act of God, put in such a state that the tenant cannot enjoy, the tenant is entitled to an abatement,' Accordingly it was held that unless there was any stipulation in the agreement of tenancy to the contrary, the tenant was entitled to an abatement of rent for any part of the land washed away. It is true that an inquiry was also ordered whether some of the land (p. 44)' was covered by sand, and thereby deteriorate), or rendered wholly useless,' because in that case also there would be a similar right to abatement; but this must be read with the first sentence of the judgment which says (p. 43)' the appellant sues for an abatement of his rent, upon the ground that... a part of it (i e. his land) had been covered with sand, from which we understand that it was so covered with sand as to have been rendered wholly useless.' The words 'deteriorated or rendered wholly useless' at the end of the judgment can, therefore, be read as equivalent to 'deteriorated so as to be rendered wholly unless'; and it is, I think, unreasonable to think that Sir Barnes Peacock intended to make a departure from the rule that there must be an entire lose of enjoyment, which is the evident basis of his judgment. If he did intend this, then he was probably thinking of Section 18 of Act X of 1859 The section is reproduced in Sukhraj Rai v. Ganga Dayal Singh, (1921) 6 Pt. L. J. 665which is mentioned in his judgment and which specifically allowed an occupancy raiyat to claim an abatement not only for loss of land 'by diluvion or otherwise,' but also 'if the value of the produce or the productive powers of the land have been decreased by any cause beyond the power of the raiyat' But this is improbable, as he was dealing with the case on the basis that the appellant, not having a right of occupancy could not rely on this Section 18.
18. I know of no other authority that can be cited, apart from its being based on some statutory right like the one just mentioned, for allowing abatement for mere deterioration of the productivity of the land. Subramania Pattar v. Kattamballi Rama I. L. R.(1919) Mad. 132 which is relied upon by the District Judge in his judgment, was a case of land flooded by sea-water and so rendered unfit for cultivation. Sukhraj Rai v. Ganga Dayal Singh (1921) 6 P. L. J. 685 also appears to have been a case of permanent deterioration rendering the land totally unfit for cultivation (see at pp. 666, 667 and 669); and even if it were not, there are statutory provisions enabling the Courts of the Central Provinces to allow abatement. Uma Sunkur Sirkar v. Tarini Chunder Singh I. L. R(1882) . Cal. 571 which is also referred to in my learned brother's judgment, is a case of loss of the land by its acquisition by Government held to be 'ejusdem, generis (of the same kind) with diluvion' (see at p. 572).
19. The plaintiff is no doubt, under Section 26 of Bombay Regulation IV of 1827, entitled to rely on 'the usage of the country in which the suit arose; ' but no such usage was pleaded in the plaint or attempted to be proved at the trial. An usage can of course be established by judicial authority. But I can see no sufficient ground for holding that it is part of the general law of the country recognized by the Courts, that a tenant can get abatement of rent for anything less than total unfitness of part of his land for cultivation, falling within the rule in Bacon's Abridgment that I have mentioned. The mere fact that statutory rights to abatement of rent on a lesser ground like that now in question have been created in other Provinces, does not justify the view that such a right exists, as part of the general law of the country. On the contrary, I think, it indicates that it was considered necessary to legislate, in order to create such a right. The enactments are in an ordinary form, not in that of affirmatory legislation.
20. Accordingly, as there is no legislation in force here to help the plaintiff-respondent, I think that the District Judge was not justified in law in reversing the trial Court's decree, dismissing the plaintiff's suit with costs. I would, therefore, allow the appeal No. 163 of 1924, reverse the lower appellate Court's decree, and restore the trial Court's decree with costs against the plaintiff-respondent in this Court and the lower appellate Court.
21. I agree with my learned brother that second appeal No. 164 of 1924 fails and should be dismissed with costs.