1. This second appeal arises out of a suit for damages for breach of contract of lease. The lease was of a house in Periyakulam and is dated, 12th November 1916 (Exs. I and A). It was executed by Subban Chetti, plaintiff's elder brother, and it is not denied that plaintiff is the person now entitled to the house. The lease was for five years. One of the terms of the lease is that within six months from its date, the lessor 'shall have a latrine constructed, a well sunk and a room upstairs built.' The lessee occupied the house up to 23rd February 1919 and a notice was given to the plaintiff on 3rd March 1919 alleging that the defendant vacated the house as the well was not sunk,. and other necessary repairs were not effected. The plaintiff brought this suit for Rs. 521-12-9 being the rent for the period 23rd March 1919 to 15th September 1920. The District Munsif gave a decree but the District Judge reversed his decision and dismissed the suit.
2. Before me Mr. T. L. Venkatarama Iyer who has appeared for the appellant argued that the lessee for a term is not entitled to put an end to the lease, for breach of covenants in the lease. He can only claim damages for such breach, if any. It is unnecessary to refer to the authorities cited by him. For the learned Vakil for the respondent concedes that if there is a breach of mere covenants, the lessee is not entitled to put an end to the lease. See Woodfall, page 213: Surplice v. Farnsworth (1814) 7 M. & G. 576 : 8 Scott N.R. 307 : 13 L.J.C.P. 215 : 8 Jur. 760 : 66 R.R. 760 : 135 E.R. 232. But the respondent contends that the term is a condition in the lease and not a covenant. He relies on Foa on 'Landlord and Tenant,' pages 312 and 313. But the distinction between a condition and covenant is made only when a lessor relies on the breach for putting an end to the lease. At page 317 Foa says 'In no case can the lessee take advantage of the proviso for re-entry in order to avoid the lease, even where it is in the form that the term shall cease or that the lease shall be void for all purposes.' Anyhow Section 111 of the Transfer of Property Act contains no clause providing for the termination of the lease at the option of the lessee on account of a breach of a term of the contract by the lessor, similar to Clause (g) providing for a forfeiture at the option of the lessor. I am, therefore, unable to agree with the District Judge, when he says 'It is further argued that the lease could only be avoided under the provisions of Section 108 of the Transfer of Property Act. Exhaustive as these provisions appear to be they do not say that a perfectly clear breach of contract is not a good ground for avoiding a lease'. All that I have to observe is that the Act does; not provide for the termination of the lease for a term by the lessee on account of a breach by the lessor. Nor is there anything in Section 108 to enable the lessee to avoid the lease.
3. But, assuming that the lessee is entitled to terminate the lease on account of the lessor's default in carrying out a term of the contract it seems to me that he has waived it. The lease provides for the construction of a well within six months, i.e., 12th May 1917.' It is not pretended that the time was expended by mutual agreement or that the lessee, while condoning the breach on 13th May 1917 gave notice to the lessor extending the time for performance, of the term upto any later date. The lessee simply chose to continue to occupy the house till 23rd February 1919 and then vacated it. It seems to me not open to the lessee to continue to occupy the house after breach, without giving notice that he was willing to extend the time for performance upto a specified date, and then throw up the lease on a date arbitrarily chosen by him. If he did not put an end to the lease on 12th May 1917, it must be taken that he has waived the benefit of the condition (assuming there was one). In this view, the plaintiff is entitled to succeed.
4. I am not satisfied that plaintiff is entitled to the whole of the rent for the remaining period. In his deposition he says 'I asked many persons. They said the rent was high. It seems to me that he demanded higher rent than people were willing to pay and could get no tenant. I think, it was his duty to mitigate damages by taking tenants for a smaller rent. The Vakils, to avoid calling for a finding, left it to me to fix the damages. I have fixed it at half the suit amount and they have agreed to it.'
5. The plaintiff will, therefore, have a decree for Rs. 260-4-4. The defendant will pay half the Court-fee in second appeal to plaintiff. Otherwise each party will bear his own costs throughout.