1. The question for decision in this Second Appeal is whether the plaintiffs are entitled to recover from the defendant the rent of two villages for Fasli 1315. The defence to the claim is that the plaintiff's lessors seriously obstructed the enjoyment of the villages by the defendant in that year, by which she sustained loss to the extent of Rs. 1,300 and that the plaintiffs are, therefore, not entitled to claim any rent for that year. The amount of rent due for the year according to the contract of lease was Rs. 1,245-12-3. The plaintiffs are alleged to have obstructed the lessee's enjoyment both of certain Karuvela trees and the paddy lands. With regard to the former, both the Lower Courts have found that the obstruction was not of a substantial character. With respect to the paddy land, both Courts have concurred in finding that the plaintiffs, having brought the villages to sale for arrears of rent for previous faslis in November 1905 and purchased them at the auction sale, took steps to exercise their right as purchasers and sent an order to the Curnam, Exhibit Va, dated the 26th November 1905 directing him to conduct all operations in the villages under their orders as they had become the owners. They then moved the Magistrate to restrain the defendant from interfering with their enjoyment of the villages, alleging that they were in possession as purchasers. The Magistrate took steps in consequence to preserve the peace and the defendant, while she denied the plaintiffs' possession of the villages, consented to the produce on the lands being harvested under the supervision of a Village Munsif. The Curnam refused to send the usual accounts to the defendant. On account of the delay in the harvesting of the crops in consequence of the obstruction and on acconnt of rains, the defendant sustained pome damage. We may note that the rent sale was subsequently set aside as irregular and illegal. The Subordinate Judge does not find what loss the defendant sustained. He says that the delay was only for about 3 weeks and that the plaintiffs themselves did not collect any portion of the rent from the ryots in possession; and he concludes, 'I find it impossible to hold that the defendant's enjoyment was so materially interfered with by any permanent act of the plaintiffs or their men as to load to the conclusion that the defendant was not able to have peaceable enjoymeut in 1315 and that the plaintiffs' acts amount to such an obstruction to enjoyment as to suspend the plaintiffs' claim for rent for that year.' He was of opinion that the defendant's proper course, if she sustained any damage, was to take independent steps for recovering it. He held that the defendant would be entitled to suspension of rent 'for the period when there is substantial and material obstruction to her enjoyment by the landlord.' The District Judge observes that the defendant has not shown that she sustained a larger damage than a sum between Rs. 500 and Rs. 900 and says 'I do not consider that the plaintiffs' interference can be regarded as a substantial interference of defendant's enjoyment of the village and it appears at most to have been a temporary obstruction which was soon removed and for which she may obtain damages.' We are unable to agree that if the plaintiffs' obstruction caused a loss of Rs. 900 or thereabouts, the obstruction would not be of a substantial character, the total income of the village being about 2,200. The learned Judge apparently did not think it necessary to record a definite finding on the question of the amount of the loss sustained by the defendant, because, according to the view he took of the interpretation to be placed on Section 108 of the Transfer of Property Act, even if there was substantial obstruction of the defendant's enjoyment by the plaintiffs, that would be no answer to this suit for rent. Clause (c) of that section enacts 'that the lessor shall be deemed to contract with the lessee that If the latter pays the rent reserved by the lease and perform the covenants binding on the lessee, he may hold the property during the time limited by the lease without interruption.' Clause (1) provides 'the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent on his behalf.' Taking the two clauses together, he holds that 'in order that a lessee might claim the benefit of an implied covenant for uninterrupted enjoyment of the leased property, it is necessary as a condition precedent, that he should comply with the provisions of Section 108 (l), viz., that he should pay or tender at the proper time and place the rent payable by him.' At the same time he thinks that the lessee might sue for damages caused by the obstruction. We can hardly suppose that the Judge means that the tenant should first pay the rent and then claim repayment of it, in virtue of the covenant for quiet enjoyment. Probably what he means is that the tenant after paying the rent may claim against the landlord damages for breach of the covenant for quiet enjoyment. If Clause (c) must be construed to require 'that the contract between the lessor and lessee should be taken to be that the prior payment of rent is a condition precedent for the tenant's right of quiet enjoyment, we have no doubt that this condition can apply only where the tenant attempts to enforce the covenant for quiet enjoyment by a claim for damages. It may not be unreasonable to say that before the tenant actively asserts his claim to damages he must perform his own obligation to pay or tender the rent due to the landlord, though it is difficult to see the necessity for doing so, especially where the damage sustained exceeds the rent reserved. We are not convinced that on the right construction of Clause (c) the actual prior payment of rent is intended to be a condition for the right to enjoy without interruption. The clause does not purport to confer any right or cast any liability on the lessor or lessee as a matter of law, but to state that a certain contract shall be taken to have been entered into between the parties. Now, suppose an instrument of lease says 'If you pay the rent and perform your covenants you may hold the property for 20 years.' This need not necessarily mean anything more than that if the lessee is unwilling to pay the rent reserved or to perform his other covenants, i.e., obligations under the lease, he would have no right of quiet enjoyment. We can hardly think of any good reason for enacting a provision that the failure to pay a single instalment of rent should deprive a lessee of the right to continue in enjoyment of the leased property. It is hardly necessary to say that such is not the English law. The right to re-enter on non-payment of rent is confined, according to that law, to cases where there is an express covenant for ' re-entry.' Section 111, Clause (9) shows that the law is the same in this country. Section 114 goes further and provides in such cases for granting relief to the lessee against forfeiture for non-payment of rent. The usual clause in instruments of lease in England was 'Paying the rent &c;,' you shall be entitled to hold &c.; The Courts have not construed this to mean that actual payment of the rent is a condition for the right to hold for the stipulated term. See Dawson v. Dyer (1833) 110 E.R. 996 and Edge v. Boileau (1885) 16 Q.B.D. 117. No doubt, where an unusual privilege, such as a right to a renewal of the lease, is granted, if the lessee pays the rent in time, the Court may be inclined to construe the observance of the covenant as a condition to be satisfied to entitle the lessee to the privilege. See Bartin v. Bklwell (1881) 18 Ch. D. 238. We think there are good grounds for holding that notwithstanding the conditional form of the clause in Clause (c) of Section 108, it was not intended to make the right to the benefit of the covenant for quiet enjoyment conditional on the actual payment of the rent. At any rate, we are clearly of opinion that, if the clause is to be read as importing a condition, it can only be so read in cases where the lessee claims actually to enforce his right to damages for breach of the covenant for quiet enjoyment.
2. The Transfer of Property Act does not in reality deal with the question of the lessee's right to withhold payment of the whole or part of the rent where his possession of the premises has been seriously obstructed by the landlord. Section 108 does not deal with the defence to an action for rent. It enacts that the lessor is bound on the lessee's request to put him in possession of the property, but does not say that if he does not do so, the lessee is not bound to pay the rent. But there can be no doubt that the Transfer of Property Act has made no change in the rule that non-delivery of possession of the premises is a good answer to a suit for rent. See The Zemindar of Viziangram v. Behara Suryanarayana Pantulu I.L.R. (1901) M. 587.
3. The basis of the defence, where the lessor has obstructed the lessee's enjoyment, is that in case of continuous relationships involving mutual rights and obligations, a party who repudiates and acts in violation of his obligations cannot claim to enforce his own rights against the other party. Hence a lessee who abandons his lease is not entitled to complain of dispossession by his landlord. See Obhoya Charam Bhoora v. Koilash Chunder Dey I.L.R. (1887) C. 751. To use the language of Mr. Adam in his Landlord and Tenant, 'a rent service is something given by way of retribution to the lessor for the land demised by him to the tenant and consequently the lessor's title to the rent is founded upon this, that the land demised is enjoyed by the tenant during the term included in the contract; for the tenant can make no return for the thing he has not. If therefore the tenant be deprived of the thing, the obligation to pay the rent ceases; because such obligation had its force only from the consideration which was the enjoyment of the thing demised.' In England, the defence is raised in the form that the tenant has been evicted from the premises and is therefore entitled to suspension of the rent during the period of eviction. See Woodfall's Landlord and Tenant, page 476. Foa on Londlord and Tenant, page 134. But eviction has been found not to be an appropriate word; and the Courts hold that there is constructive eviction where the landlord without turning the tenant out of possession commits unlawful and wrongful acts which deprive the tenant of the beneficial enjoyment and use of the preperty; such wrongful acts amount in law to constructive eviction and the tenant enjoys immunity from the payment of rent until the londlord again permits him to have quiet enjoyment. This principle has been enunciated in a series of cases. See Dhunput Singh v. Mahomed Kazim Isphain I.L.R. (1886) C. 296 Harro Kumari Chowdrani v. Purna Chandra Sarabogya I.L.R. (1900) C. 188 Rai Charan Shar Mazumdar v. Administrator General of Bengal I.L.R. (1909) C. 856. Mahomed Jeanblya Mean v. Sukheannessa Bibi 14 C.W.N. 446 Puma Chandra Sarbajna v. Rasik Chandra Chakraborti (1886) 13 C.L.R. 119. We are clearly of opinion that the Transfer of Property Act has made no modification of the law in this respect. The learned vakil for the respondents contends that, as the obstruction in this case was only for a short time and the tenant obtained possession of the villages afterwards and was in enjoyment during the remainder of the fasli, she is not entitled to withhold payment of the whole of the rent. We do not deal with this contention at present, because, before disposing of the case finally, we consider it desirable to request the District Judge to submit a clear finding on the question--what damage did the defendant sustain in Fasli 1315 in consequence of the plaintiffs' obstruction of her enjoyment? And we accordingly do so.
4. Mr. Anantakrishna Aiyar further contends that, as the defendant consented to the harvesting of the crops by the Village Munsif, she cannot now complain of obstruction by the plaintiffs; but the obstruction commenced several weeks before the defendant's consent referred to and the consent can be construed only as a forced abandonment of the premises for a time in consequence of the obstructions. According to some authorities adandonment is even necessary to enable a tenant to claim immunity from rent. See Mr. Adam on Landlord and Tenant, page 1293. The finding will be submitted within one month from the date of the receipt of this order. Seven days will be allowed for filing objections. Fresh evidence may be adduced on both sides.
5. In compliance with the above order the District Judge of Madura submitted the following finding.
6. That defendant's loss was Rs. 720. That such loss was due to the obstruction of the other party, that the harvest was delayed from 1st to 19th March and not finished till considerably later and the damage may be attributed entirely to the delay.