John Wallis, C.J.
1. This is an appeal by the defendant from the judgment of Kumaraswami Sastri, J, in a suit brought by a landlord against a tenant for damages for the destruction of the demised house by fire. The learned Judge has found that the fire was occasioned by the negligence of the defendant. The destruction of a building owing to the negligence of the tenant is treated in English Law as permissive waste for which a tenant for life or for a term is liable and a tenant at will not liable while the case of a tenant from year to year is doubtful. These distinctions are not recognized by the Transfer of Property Act. Section 108(m) requires the tenant to restore the property in as good a condition as it was when he was put into possession, subject only to the changes caused by reasonable wear and tear or irresistible force and to allow the lessor and his agents at all reasonable times to enter upon and inspect the condition thereof and give or leave notice of any defect in such condition, and when such defect has been caused by any act or default on the part of the lessee his servants or agents, he is bound to make it good within 3 months, after such notice has been given or left. In the present case the plaintiff by Exhibit C called on the defendant to Pay Rs. 15,000 damages, while the defendant sent a counter notice Exhibit D claiming to determine the tenancy under Section 108(e) in consequence of the destruction of the premises by fire, as he was entitled to do under that clause, if the injury was not occasioned ' by the wrongful act or default of the lessee '. He also sent a reply to Exhibit C repudiating his liability to pay damages. The action of the defendant in electing to determine the tenancy under Section 108(e) amounts to a waiver of the notice calling on him to restore the property required by Section 108(m) and no question of the absence of such notice has been taken. Indeed the case seems to have been conducted without reference to Section 108(m) which however enbodies the rule of law to be applied. To make the defendant liable under Section 108(m) the defect in this case, the destruction of the premises by fire, must have been caused by 'any act or default on the part of the lessee, his servants or agents' and all we have to do is to apply this test to determine the defendant's liability. Such actions appear to have been infrequent and there are not many cases for our guidance. On the facts the learned Judge has found that the fire was caused by the defendant's negligence and that question has been re-argued before us. The admitted facts, as found by the learned Judge, are that the defendant took the house in 1916 and a Muhammadan Dubash of his was allowed to live in the upper part with his three wives and two servants. In October 1917 piece-goods were stored in a room opening into the kudam and the goods were insured, but the policy did not take effect until the first premium was paid in December. Late in December the Muhammadan and his family left the house, which was then put in charge of a watchman, some ten days before the fire occurred. The watchman swears that, according to his usual custom, he lit a hanging lamp in the hall where the goods were stored, locked up the premises and took the key to the defendant's house in the neighbourhood and went away to Triplicane for his evening meal intending to return and sleep there and that on his return he found the premises destroyed by fire. The lamp was a cheap Japanese hanging lamp with a central draught like the one shown to us, and was hanging in the hall near the stair-case leading to the floor above.
2. In the draughty conditions of houses in India even the best lamps flare up and in this case the situation of the lamp was exceptionally draughty, having regard to the fact that the room was quite open on the east side and to nearness of the stair-case when there would have often been a strong draught. In these circumstances a cheap lamp like this if left unattended for some hours, might well flare up, become heated and explode and this would seem to be what actually occurred. There seems no other way of accounting for the fire, putting aside deliberate incendiarism which is not now suggested on either side. The question then is whether it was negligence to leave a lighted lamp like this unattended in close proximity to the bales of piece-goods which were stored in large quantities in the room. Mr. Waddell, the agent for the Insurance Company which has paid the defendant's claim on the goods gave evidence that piecegoods tightly packed in bales are not more inflammable than ordinary furniture, and said that he did not consider it dangerous to leave the lighted lamps hanging near the bales. He appears to have admitted that it would have been dangerous to leave the lighted lamps suspended over the bales. It seems fairly clear that the bales were piled one on top of the other quite near the lamp. It may not be possible now to fix the exact relative positions. In my opinion in the conditions prevailing in India to leave a lighted lamp unattended for hours in close proximity to bales of piece-goods was a distinctly negligent act, and I am not prepared to differ from the finding of the learned Judge or from his estimate of the cost of restoring the damage. The appeal fails and is dismissed with costs.
3. I agree with the learned Chief Justice. The suit from which this appeal arises was one brought by a landlord against his tenant for compensation for damages caused to the demised premises by fire, which it is alleged was the result of the negligence or default of the latter's servants. The rights and liabilities of lessors and lessees are regulated in this country by the Transfer of Property Act. Section '108 of that act provides in Clause (e) omitting words which are not material here that 'if by fire ... any material part of the property be wholly destroyed ... the lease shall at the option of the lessee be void : provided that if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to the benefit of that provision'; and again in Clause (m) that ' the lessee is bound to keep, and on the termination of the lease to restore, the property in as good a condition as it was at the time when he was put in possession, subject only to the change caused by reasonable wear and tear or irresistible force ... and when any defect has been caused by any act or default of the lessee or his servants or agents, he is bound to make it good within three months after notice to him.
4. Fire comes within the term ' irreistible force' and if the injury to the property in suit had been caused by fire without any default on the part of the tenant, he would not have been responsible for the loss; but on the other hand he could have avoided the lease as he claimed to do in his letter Exhibit E. A tenant is not in the position of an insurer of the landlord's property against fire risks and he is not therefore liable for loss by accidental fires.
5. The main question then for our decision is whether the fire in this case was caused by the default of defendant's servants or not. The evidence makes it quite clear that defendant had stored up in a room in the house a large number of pressed bales of cotton piece-goods and yarn and also some indigo seed. Taking the size of the room and the number and approximate size of the bales into consideration it would seem that the room must have been fairly closely packed with the bales. There was no one living in the house at the time of the fire, the defendant's dubash and his family who were living in it previously having left it a few days prior to it. On the night of the fire what the defendant's clerk, who was put on to watch these goods, did, was to leave an old keroaine oil Japanese metal lamp hanging from the ceiling of the room, within three feet of these bales burning and to go away for his evening meal to Triplicane locking up the house from the outside. He was away for about two hours and when he came back he found the room and the goods in it had all been burnt down. The room had no wall on one side and thus was open to outside wind ; the lamp itself was one of the Ditmar patent pattern with a metal container and a central draught through a metal tube passing through the container and a round wick. Such lamps are known to be very liable to flare up when there is any breeze or when the container gets heated by the burning of the lamp itself ; and when that happens the whole of the kerosine oil in the Jamp is liable to take fire and burn. I agree with the learned trial Judge that to leave such a lamp as that lit in a room open on one side with a large number of bales of piece-goods and yarn within a few feet of it with no one to watch it or to attend to it was undoubtedly an act of gross negligence on the part of the defendant's clerk as found. The folly of the man's act was so great as, when coupled with the facts that the goods in the room belonging to his master had been heavily insured and that the dubash and his family who had been living in the house previously had left it with all their things very shortly before, as almost to lead to the suspicion that his act was not unintentional. That however is not alleged before us but there can be no doubt that his act was a piece of gross negligence.
6. It was argued that there was no evidence to show how the fire was caused or to show that the lamp had anything to do with the origin of the fire. It is true there is no direct evidence on the point but it is surely a reasonable inference to attribute the fire to the kerosine oil lamp as no other possibility of its origin has been suggested in the evidence.
7. It was also argued that pressed bales of piece-goods and of yarn with iron loops round them like those which were stored in the present case are not inflammable goods and there was thus no risk and therefore no negligence in leaving a lighted lamp near them; and the evidence of Mr. Waddel, the Insurance Agent, was referred to in support of this contention. It may be that for purposes of insurance pressed bales of cotton goods are treated as non-hazardous goods as Mr. Waddel says. But that is hardly to the point as they are all the same liable to take fire and burn as the fire in this case in which they were all burnt has conclusively proved. The clerk's act in leaving a lamp of the kind above described burning and unattended to, near a largs quantity of such bales is none the less a negligent act in my opinion, even though the bales may not have easily caught fire. Nor does the fact that the lamp had been left burning in the room in the same manner on previous evenings without any mishap, even if it be true materially affect in my opinion the question of negligence as that has to be judged from the nature of the act itself.
8. I accept therefore the learned trial Judge's finding that the fire which burnt down a part of plaintiff's building was caused by the default of defendant's servants ; and I hold therefore he was bound to make good to the plaintiff the damage caused under Section 108 Clause (m) of the Transfer of Property Act.
9. It was objected that no notice was given by the plaintiff to the defendants as required by that clause. I think however plaintiff's lawyer's notice Exhibit C is in substantial compliance with it and though plaintiff did not wait for three months before bringing his present suit the defendant by his repudiation of all liability for the damage caused by his letter Ex. E., waived his right to the time. No plea was raised in this case that the defendant should have been given three months time to repair or that the suit was premature on that account. The objection must therefore be overruled.
10. I have not referred to any of the English cases cited on the point as the case before us is really governed by the Transfer of Property Act. The learned Chief Justice has stated the law in England on the point and I think it is unnecessary for me to refer in detail to these cases.
11. The next point argued is as regaads the quantum of damages awarded. It was contended that Mr. Hebbar's evidence on the question should have been preferred to that of Mr. Srinivasachari's. There is no valid reason urged why we should do so. Mr. Hebbar did not prepare an estimate himself but only gave the rates differently from those Mr. Srinivasachari gave. The latter was not cross-examined on the point of rates at all whereas Mr. Hebbar who is a D.P.W. Sub-Engineer and was speaking of D.P.W. rates in his examination-in-chief had to admit in cross-examination that his rates had no reference to the D.P.W. rates ; he then said that he was speaking with reference to Royapuram Hospital rates, but he did not produc any schedule of such rates or even of the D. P.W. rates. The learned trial Judge has accepted a part of his evidence and has reduced Mr. Srinivasachari's estimate accordingly and fixed the damages at Rs. 8,000. I am not prepared on the evidence on record to interfere with his finding on the point.
12. I agree therefore that the appeal fails and should be dismissed with costs.