1. The plaintiff in this case is the landlord and the defendant is a mulgeni tenant and the tenancy was created in the year 1943. The landlord sued the tenant for the recovery of a sum of Rs. 520/- by way of damages for injury caused to him by the destruction of certain trees standing on the leased premises. The defendant admitted that he had destroyed five trees but pleaded justification for removing them besides raising a plea that such removal was within his rights. The Munsiff made a decree for a sum of Rs. 520/- but this decree was modified by the appellate Court by reducing the damages to a sum of Rs. 365/-. In this revision petition Mr. Raghavendrarao, the learned advocate for the tenant contends that both the Courts below were in error in assuming that any trees standing upon the property leased to the defendant had been removed by him.
2. The Munsiff was of the view that as many as eleven trees had been cut but when it was urged before, the appellate Court that according to the commissioner's reports produced in the case many of those trees were not standing on the leased property but were situate on the surrounding lands, the appellate Court came to the conclusion that there was no proof that the surrounding lands on which some of the removed trees existed belonged to the landlord. But it was nevertheless of the view that since the defendant had admitted in his written statement that at least five trees had been removed by him from the suit land the defendant had made himself liable to pay damages to the plaintiff for such removal.
3. The criticism of Mr. Raghavendrarao against this part of the judgment of the appellate Court is that the appellate Court has misread the written statement of the defendant who, according to Mr. Raghavendrarao, made no such admission. I am not inclined to think that this criticism of Mr. Raghavendrarao is well founded. I see from the written statement of the defendant that ha did make an admission that at least five trees situate on the suit land had been cut and removed by him, although he contended that such removal was well within his rights.
4. But Mr. Raghavendrarao's submission was that even so, since the instrument recording the mulgeni lease did not state that there were as many as five trees on the suit land on the date of the execution of the mulgeni lease, the five trees which were cut and removed by the defendant could not have existed at the time of the grant of the lease and that they have therefore either been planted by the defendant or must have spontaneously grown on the land. It is a well settled principle that a lessee has no right to cut or destroy trees which existed on the leased premises when the lease was created, but that trees which have subsequently been planted on those premises by the lessee or which have spontaneously grown after the commencement of the lease may be so removed or cut by him, (See AIR 1916 Mad 939, Krishnacharya v. Anthaki). So it follows that if the trees removed by the defendant in this case existed at the time of the lease the removal by him was an act of voluntary waste for which he would be liable to pay damages to the landlord.
5. I cannot accede to the contention of Mr. Raghavendrarao that those trees which the defendant admittedly removed did not exist at the time of the lease. Although Mr. Raghavendrarao did point out that the lease deed did not itself mention that as many as five trees existed on this property, the defendant did not raise a plea in his written statement that the trees cut by him had subsequently grown on the suit land or had been subsequently planted by him. Both the Courts below found that those trees existed at the time of the lease and that finding being a finding on a question of fact, is not open to discussion in this revision petition.
6. What the appellate Court did was to award to the landlord by way of damages the value of those five trees. Mr. Raghavendrarao contends that that is not the proper measure of damages which the landlord could claim. His first submission was that one of the trees had been valued at too high a figure and the second was that, since the plaintiff had not suffered any present injury he could not claim any compensation. In my opinion the first submission has no substance since it is not within my province to disturb a finding of fact recorded by the two Courts below in regard to the value of the trees removed by the defendant.
7. But the second submission made by Mr. Raghavendrarao raises an interesting question to which the answer is by no means easy. In this case, according to the terms of the mulgeni instrument the tenant has a right to continue to be in possession of the property from generation to generation, the landlord having no right to resume the land. The only right reserved for the landlord is the right to recover the rent as and when it falls due and to recover it by the enforcement of a charge which has been created on the property leased to the tenant. The only process by which the landlord would perhaps be entitled to recover possession of the land is when, there is a reversion to him of that land by reason of the death of the tenant for the time being who leaves no heirs and dies intestate.
8. In a case like this where it is proved that the tenant has committed an act of voluntary waste to the property by the removal of the trees standing thereon, how are the damages awardable to the landlord to be computed. I am clear in my mind that the measure adopted by the Courts below was entirely mistaken. Both of them thought that the value of the trees removed by the defendant represents the correct measure of damages. It is obvious, that that could not be the proper measure since the estimate made by them assumes the right of the landlord to immediate possession of the land or to the trees, which he obviously does not have. The only obligation of a tenant in a case like this is to make it possible for the landlord, if and when the landlord becomes entitled to the right of reversion, to get possession of the property in the condition in which it was leased and without the commission of any voluntary acts of waste by the tenant. There have been many decided cases covering the question as to the measure of damages where a tenant commits an act of voluntary waste. The measure adopted in those cases is similar to that adopted in cases where there is a covenant to repair and there is a breach of that covenant.
9. In Joyner v. Weeks, 1891-2 QB 31 it was stated that the general rule with regard to the measure of damages in an action, for breach of a covenant by a lessee to deliver up the demised premises in good repair is that such damages are the cost of putting the premises into the state of repair required by the covenant. But that this rule is not a rule of universal application is to my mind quite clear since the rule for the assessment of damages in a case where the lease is still continuing cannot be the same as that applicable to a case where the damages are claimed after the termination of the lease.
10. In Whitham v. Kershaw, 1886-16 QBD 613 there was a breach of the covenant by a tenant not, to commit waste on the demised property. In a suit for the recovery of damages by the landlord the Judge awarded damages of a sum of money which represented the cost of repairs to restore the property to the state in which it formerly was, after deducting from it a discount for immediate payment. But in the Court of appeal, Lord Esher, M. R. pointed out that the Judge had not adopted the right measure of damages. In his opinion the proper way to ascertain the damages was to estimate the diminution in the value of the property and to deduct from it a discount for immediate payment.
11. In Smiley v. Townshend, 1950-2 KB 311 it was stated that the proper measure of damages was the difference in the value of the reversion at the time of the termination of the lease of the premises in the then state of disrepair and the state in which they would have been if the covenant was fulfilled. That case was one in which there was a breach of the covenant on the part of the tenant to keep the building in a proper state of repair.
12. But the true rule, in my opinion, is that stated by the House of Lords in Conquest v. Ebbetts, 1896 AC 490 in which Lord, Herschell expressed the view that no hard and fast rule can be laid down as to damages which may be recovered by a covenantee during the currency of a lease in respect of the breach of covenant to keep the demised premises in repair. That rule applicable to the case of breach of a covenant to keep the demised premises in repair is equally applicable to a case where an act of voluntary waste is committed by a tenant. Lord Herschell observed as follows at page 494:
'I do not think any hard and fast rule can be laid down as to the damages which may be recovered by the covenantee during the currency of a lease in respect of the breach of a covenant to keep the demised premises in repair. All the circumstances of the case must be taken into consideration, and the damages must be assessed at such a sum as reasonably represents the damage which the covenantee has sustained by the breach of covenant. I quite agree with the criticism to which Lord Holt's view has been subjected if that learned judge intended to lay down that, whatever the circumstances and however long the term had to run, the damages must necessarily be what it would cost to put the premises into repair. On the other hand, I think it would be equally wrong to hold that this could never be the measure of damages, whatever the circumstances and however nearly the term had expired. But in the present case, if the test be applied of inquiring how much the value of the respondents' reversion has been diminished by the' breach of covenant, a test for which I understand the appellants to contend, I cannot see that there has been any error in the assessment of damages. If the premises were now in good repair, the reversion of the respondents would secure them the improved rent of 100% a year to the end of the term, without any liability on their part, unless it were to the extent to which repairs subsequently became necessary. As matters stand they can only receive this rent subject to the liability of restoring the premises to good repair, so that they may in that condition re-deliver them to their lessor. The difference between these two positions represents the diminution in the value of their reversion owing to the breach of covenant, and on this basis the damages seem to me to have been properly assessed.'
13. The above rule, in my opinion, being the true rule by the application of which damages have to be awarded, in a case where a tenant commits an act of waste during the period o the tenancy, the damages to which the landlord would be entitled would be what is relatable to the diminution in the value of the reversion as a result of such voluntary waste on the part of the tenant. But the difficulty is to assess the damages even by the adoption of that process. On the question as to what would be the diminution in the value of the reversion at the appropriate stage, there is, in this case, no evidence and even if there was any, it would have been entitled to very little weight. No one can foresee when, if at all, the landlord would become entitled to the reversion in this case and what would be the value of the property leased to the tenant at that very distant point of time. But one thing which is however very clear is 'that the value of the trees removed by the defendant cannot be the damages which the landlord can claim since such value can never represent the damages claimable on account of any diminution in the value of the reversion. It is no doubt true that by reason of the creation of the charge on the entire property leased to the tenant, including the trees, the removal of those trees has resulted in the diminution of the security in respect of the rent payable by the tenant to the landlord. It may therefore also be said that in addition to the diminution in the value of the reversion the diminution in the security available to the landlord in the event of the tenant becoming a defaulter in the payment of rent also entitles him to claim damages in this case.
14. It therefore follows that the measure of damages in this case has to rest upon two factors. The first of them is the diminution in the value of the reversion and the second is the diminution in the security. The question therefore is, what would be the sum of money which can properly be awarded by way of damages to the landlord on this basis. It is not easy to measure the damages even on this basis. Although the defendant has removed the trees, by the time any occasion arises at all for the enforcement of the security created by the mulgeni instrument, it is not impossible that the defendant may be able to replant them so that the security is restored to its original condition. It is equally possible that the occasion for the enforcement of the security might arise before the defendant is able to do so. Likewise, while the prospect of the reversion of the land to the landlord might be so far and so distant that it is possible to take the view that at that stage the reversion would not have become less valuable than it was when the lease was created, it is equally possible that the landlord might become entitled to the reversion much earlier than the tenant expects it to happen. In those circumstances Messrs. Raghavendrarao and Krishnaswamirao submit that I might assess the damages having regard to all the circumstances of the case and that that assessment would be accepted by them.
15. In this case it seems to me that the most satisfactory method of estimating the damages would be similar to that employed in Whitham's case, (1886) 16 QBD 613. What I should therefore do is to estimate the diminution in the value of the property resulting from the removal of the trees and deduct from it a discount for immediate payment. The finding of the lower appellate Court was that the value of the trees removed by the defendant was Rs. 365/-. Taking all the circumstances into consideration it seems to me that it would be fair to say that there was a diminution in the value of the reversion to the extent of Rs. 300/- and I would deduct half of it as discount for immediate payment. I would thus reach the conclusion that a decree should be made in favour of the plaintiff for a sum of rupees 150/-.
16. I therefore modify the decree of the lower appellate Court by substituting for a sum of Rs. 365/- awarded by it a sum of Rs. 150/-. On this sum of money the plaintiff will be entitled to current interest from this date till the date of payment.
17. In the circumstances of the case the direction in regard to costs will be that each party will bear his own costs in all the three Courts.
18. Decree modified.