SULLEMAN HAJI AHMED OOMER Vs. AISHABAI

JUDGEMENT

(1.) This ease raises the question whether the landlord is liable under a covenant in a lease to pay excess tax because of an increase in the assessment after the date of the lease. We had a similar point before us last week (Ismail V/s. Abdulla , and we then decided that if the covenant of the landlord is to pay all rates and taxes in terms clear enough to cover future rates and taxes, then the effect of the covenant is that the landlord has contracted himself out of the provisions of Section 147 of the City of Bombay Municipal Act, and he is bound to pay the whole of the rates and taxes including the increased assessment.

(2.) The learned Advocate General in that case appeared for the successful party. He does not dispute that that decision is binding upon us, but he says that it is distinguishable on two grounds. He says, first of all, that the covenant here is not in the same terms, and is not so strong against the lessor, as the covenant in that case, and he says, secondly, that in that case the increased assessment was not due to any physical alteration in the premises, whereas in this case the lease is a building lease, and the increased assessment is due to the additional building which has been erected.

(3.) I do not think there is any force in these distinctions. It seems to me that the covenant here is a sufficiently clear covenant by the landlord to pay all future rates, taxes and assessments, and as matter of construction is sufficiently clear to cover the building for the time being on the land and the fact that the lease contemplates that a new building will be erected, seems to me rate vise to show that the landlord's covenant was intended to include this new building, than the reverse.