1. This is an appeal on behalf of the plaintiff in an action for rent. On the 6th October 1898, the defendant, the Colonial Government of British Guiana, obtained a lease from the plaintiff, for ten years from 1st January 1899, in respect of certain' premises in Garden Reach, in the suburbs of this city. There were two covenants in the lease which form the subject-matter of controversy between the parties to this litigation. The first of these covenants was by the lessee for payment of rent at the rate of Rs. 500 per month without any deduction; the rent for any month was to fall due on the fifth day of the month following. The lessee further undertook from time to time and at all times during the continuance of the lease to pay and discharge all taxes, rates, assessments whatsoever then or thereafter payable in respect of the premises demised and also all taxes, rates and assessments that might be levied in respect of any additions or alterations which the lessee might at any time make upon the demised premises with a view to adopt the same for his purpose. The second covenant was by the lessor by which she undertook to put the demised premises in thorough repairs previous to the 1st January 1899 and also, at the expiration of five years from that date, again thoroughly to repair the premises and during the entire term of the demise to keep the premises wind and water tight, subject, however, to the condition that this was not to extend to the additions and alterations that might be erected and made, by the lessee. On the 30th July 1908, the plaintiff commenced this action for recovery of Rs. 1,500 which she claimed as arrears of rent due for April, May and June 1908. The defendant in answer to this claim, alleged that, though after the expiration of five years from the 1st January 1899, the plaintiff had, in pursuance of the covenant to which we have referred, commenced and in part executed thorough repairs of the demised premises, she did not repair the boundary walls and the buildings attached thereto or abutting thereon; that consequently the defendant gave notice to the landlord to carry out the repairs within a reasonable time, after the service of such notice ; and that on her failure to do so, the defendant had carried out the repairs to the boundary walls at an expense of Rs. 2,560-8. The defendant, therefore, relied upon Section 108 Clause (f) of the Transfer of Property Act and contended that he was entitled to deduct from the rent, accrued and accruing due in respect of the premises, the expenses of the repairs of the boundary walls and the buildings attached thereto with interest at the rate of six per cent. per annum. In answer to this defence, the plaintiff argued that, as under the first covenant to which we have referred, the lessee was bound to pay rent from month to month without any deduction, he could not claim the costs of repairs to the boundary walls and the buildings attached thereto. This contention of the plaintiff was overruled by the Court of first instance. With regard to the' contention of the defendant, however, the Court held that as the plea was one not of payment but of set-off, it could not be entertained for two reasons, namely, first because no Court-fee had been paid upon the written statement; and, secondly, because the amount claimed on account of the repairs exceeded the limits of the pecuniary jurisdiction of the Court. In this view, the defence was overruled and the claim was decreed in full. Upon appeal the learned District Judge held upon the question raised by the plaintiff that the view taken by the Court of first instance was correct; but upon the question raised by the defendant, he held that the plea was in substance not one of set-off, but of payment, and that, consequently, the Court was competent to entertain it. He, therefore, remanded the case to the Court of first instance for determination of certain issues set out in his judgment.
2. The plaintiff has now appealed to this Court, and on his behalf two grounds have been urged against the decision of the District Judge. It has been contended in the first place, that as the tenant undertook to pay rent from month to month without any deductions, the costs of repairs could not be deducted from the rent as it accrued due; and secondly, that the plea of the defendant was in essence one of set-off and consequently could not be entertained by the Court. In our opinion there is no substance in either of these contentions.
3. In so far as the first ground is concerned, it cannot be contended, upon a true construction of the first covenant set out above, that the defendant is not entitled to deduct from the arrears of rent as they accrue the sums spent on the repairs. The learned Counsel for the appellant contended that the effect of the covenant is to preclude the tenant from setting off against the amount of rent payable monthly the taxes and other periodical dues, and in support of this view reliance was placed upon the cases (sic) Rawlins v. Briggs (1878) 3 Com. Pleas. Div. 368 : 27 W.R. 138 47 L.J.C.P. 487. and Home Colonial Stores v. Todd (1891) 63 L.T.R. 829. These cases, however, do not bear out the contention of the appellant, and rather support the position of the respondent. In the second of the two cases to which reference has been made, there was a reservation in the lease that the rent would be paid without deduction, except the landlord's property tax. The plaintiffs, who were the tenants of the demised premises, deducted a certain amount which they had been compelled to pay under the Metropolis Local Management Act, and their contention was that the particular covenant in the lease, under which the rent reserved was to be paid without deduction, did not contemplate a case in which the tenant was obliged to make a payment in order to protect the demised property from a paramount claim. This contention was upheld. If in the case before us, the covenant is taken as a whole, there can, in our opinion, be no dispute as to the real intention of the parties. The covenant in the first place provides for the payment of rent without deduction from month to month, and, this is then supplemented by the provision that the tenant was to be liable to discharge all taxes, rates and assessments which were then payable or might thereafter become payable in respect of the demised premises. The intention of the parties obviously was that the tenant should not be in a position to deduct from the rent the taxes, rates and assessments which might be levied on the property. But there was no agreement that if the tenant was obliged to lay out money on repairs by reason of the default of the landlord, he would not be in a position to deduct from the rent as it accrued due the sum spent by him. The view taken by the Courts below on this point is clearly correct.
4. In so far as the second ground is concerned, the solution of the question depends upon the construction of Section 103, Clause (f), of the Transfer of Property Act. That clause provides that if the lessor neglects to make, within a reasonable time of the notice, any repairs which he is bound to make in the property, the lessee may make the same himself and deduct the expense of such repairs with interest, from the rent, or otherwise recover it from the lessor. Let us assume for a moment that in this particular case, the primary condition which has to be fulfilled in order to make this clause applicable, has been established in favour of the tenant; in other words, let us assume that the lessor has neglected to make the repairs which she was bound to make to the property within a reasonable time after notice that such repairs were required. The lessee claims that when under these circumstances he himself has made the repairs, he is entitled to be re-imbursed by deduction from the rent as it falls due. The covenant to which we have referred provides that the lessee has a twofold remedy; he is entitled to deduct the expenses of the repairs with interest from the rent or he may otherwise recover the expenses from the lessor. The argument on behalf of the lessor appellant is that a claim by the lessee to deduct the expenses of repairs from the rent is in the nature of a setoff. This is contested by the respondent on whose behalf it is suggested by learned Counsel that it is also not in the nature of a plea of payment. We are unable to accept either of these contentions as well-founded on principle. In our opinion, when under Clause (f) of Section 108 of the Transfer of Property Act, the lessee makes a deduction of the expenses of repairs from the rent as it accrues due, the deduction is really in the nature of a payment to the landlord and does not bear the character of a set-off. This view is amply supported by cases of the highest authority. In the case of Graham v. Allsopp 3 Ex. 188 : 77 R.R. 592 : 18 L.J. Ex. 85, it was ruled that if a tenant makes a payment of rates and taxes primarily payable by the landlord or makes a payment of ground or other rent to a superior landlord, the payment is in substance to his landlord; in other words that such payment operates as payment of the rent itself to his direct landlord. [See also Davies v. Stacey 12 A. & E. 506 : 4 P. & D. 157 : 9 L.J.Q.B. 393]. A similar view was taken in the case of Jones v. Morris 3 Ex. 742 : 77 R.R. 806 : 18 L.J Ex. 477, which is an authority for the proposition that where the tenant is compelled, in order to protect himself in the enjoyment of land in respect of which rent is payable, to make payments, which ought, as between himself and his landlord, to have been made by the latter, he is considered, by a fiction of law, as authorized by his landlord so to apply his rent due or accruing due, and this is held to be payment of the rent itself or part of it. In support of this proposition, reference was made to two earlier decisions on the point, namely, the cases of Sapsford v. Fletcher (1792) 4 T.R. 511 and Taylor v. Zamira (1816) 6 Taunt. 524 : 16 R.R. 668 : 2 Marsh 220. In the second of these cases, it was ruled that payment by a tenant under threat of distress of an arrear due on an annuity or rent charge with power of distress paramount to the landlord's title, is a good payment to the landlord. Chief Justice Gibbs pointed out that when the tenant is compelled to make a payment which ought to have been made by his landlord, the substance of the matter is that he makes the payment on his behalf; in other words, he makes the payment in the eye of the law to his landlord himself. A similar view had been taken as early as the sixteenth century in the case of Taylor v. Beal (1591) Croke. Eliz. 922., There the action was brought for rent reserved upon a lease for years. The issue joined was, whether the rent had been paid or not. The defendant gave in evidence for part of the rent, that the plaintiff by covenant was to repair the house and did not, and that thereupon he expended part of the rent in repairing the house. The question was, whether this evidence would maintain the issue, and it was ruled that the defendant was entitled to succeed. Chief Justice Gawdy observed that 'the law giveth this liberty to the lessee to expend the rent in reparations, for he shall otherwise be at great mischief, for the house may fall upon his head before it be repaired, and, therefore, the law alloweth him to repair it and recoup the rent'. If this view is adopted, the result follows that as soon as the rent fell due, the tenant may be assumed to have deducted from the rent part of the sum which he had applied for repairs, so that at the date of the suit nothing was due to the landlord. It has been suggested, however, by the learned Counsel for the appellant that this ought not to be treated as a case of payment at all, because the sums expended by the tenant may exceed the amount of rent due and that, in any event, as the amount would be unliquidated, difficulties might arise if the tenant was allowed to deduct from a liquidated sum, namely, the rent as it accrues due from month to month, an unliquidated sum, namely, the unascertained amount spent by him on the repairs. Whatever weight might legitimately have been attached to considerations like these, if there were no statutory provisions on the subject, we are of opinion that the argument ought not to prevail when we are called upon to give effect to the plain provisions of Section 108 of the Transfer of Property Act. The Legislature, for reasons about which we are not entitled to speculate, have laid down that the amount expended in repairs, though an unliquidated sum, (but ascertainable as soon as the repairs have been completed), is, at the choice of the tenant, to be deducted from the rent as it falls due. Upon the authorities, as well as on principle, we must consequently hold that the view taken by the District Judge is correct. It is, therefore, unnecessary to consider whether, if the plea was taken as one of set-off, Court-fees would have to 'be paid upon the written statement--a point upon which the authorities are by no means uniform; Nawbut Pattak v. Mohesh Narayun Lal 1 C.L.J. 364 : 32 C. 654; Guise v. Anantram Rathi 10 C.W.N. 199. The result is that both the contentions advanced on behalf of the appellant must be overruled.
5. There is, however, one small point in which the order of the District Judge requires amendment. The District Judge stated the first issues to be determined after remand in the following terms: 'Was the boundary wall in such a condition as to require repairs'. In view of the allegations contained in the third paragraph of the written statement of the defendant, it is clear that this is inaccurate. The defendant alleged that he was entitled to, and did, as a matter of fact, repair all the boundary walls of the premises and the buildings attached thereto or abutting thereon. The ordering portion of the judgment of the District Judge must, therefore, be amended and wherever he uses the phrase boundary walls, it must be taken to mean the boundary walls and the buildings attached thereto and abutting thereon. Subject to this amendment the order of the District Judge must be affirmed and this appeal dismissed with costs. We assess the hearing fee at five gold mohurs.