VISHVANATH SHAMBA NAIK Vs. RAMKRISHNA MARTOBA KASBEKAR

JUDGEMENT

(1.) The plaintiff, (respondent in Second Appeal No. 163 of 1924), who holds the suit land on mulgeni tenure under the defendants at a fixed and invariable rent, sues for an abatement of his rent on the ground, inter alia, that the land has now become exposed to inundation from the sea. The Trial Judge dismissed his suit. But on appeal his claim was allowed by the learned District Judge, who says: Appellant relies on Subramania Pathan V/s. Kattanbath Rama 53 Pad. Cas. 397 : 43 M. 132 : 10 L.W. 367 : 26 M.L.T. 266 : 37 M.L.J. 654 : (1920) M.W.N. 153. Respondents reply that the lease then in question was one for twenty years and that the same principle cannot apply in the case of a perpetual tenancy; the proper remedy is a surrender of the tenancy which respondents are willing to accept. Appellant, however, has a right, which practically amounts to ownership. He is not willing to surrender it and defendants readiness to accept the surrender shows that the land is not without value. The Madras case quoted recognizes the principle of abatement in such cases and the question of the length of the tenancy does not appear to be material. The order for abatement may be limited to the period during which the reason for abatement continues. There is evidence that the suit land has deteriorated and that the rents of surrounding lands have decreased; this evidence may, in the circumstances, be accepted. I hold, therefore, that the appellant is entitled to abatement on the ground of deterioration due to inundation from the sea.

(2.) He, therefore, declared that as the suit land had deteriorated on account of the inundation of the sea, plaintiff was entitled to an abatement of 7 2/3 khandis plus five annas six pies cash; the declaration to remain in force until it was shown that for any reason the suit land should bear a higher rental. The main question for consideration in this appeal is whether on the facts of this case the plaintiff is entitled to proportionate abatement.

(3.) It is urged for the defendants that the general rule is that the tenant takes the demised premises subject to any defects existing in them at the time of the letting; and to any events which subsequently affect their value (Halsbury's Laws of England, Vol. XVIII, Section 962). This rule is, however, subject to exceptions; and it is urged that in the events that have happened the plaintiff's only remedy is the one to be found in Sec. 108(e) of the Transfer of Property Act, 1882, which is in these terms: If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.