Bombay High Court
Sidick Haji Hoosein vs Bruel And Co. on 1 September, 1910
Equivalent citations: (1910)12BOMLR1055
JUDGMENT Basil Scott, Kt., C.J.
1. The plaintiffs rented from one Lakhamsey Napu a godown in Clive Road from the first April 1908 to the 31st March 1909 at a rent of Rs. 1,100 per mensem with liberty to sublet it or relet it and the landlord agreed to keep the godown in good order and repair.
2. On the 17th April 1908 the plaintiff relet the godown to the defendant for the remainder of their term, i.e. from the 1st May 1908 to the 31st March 1909 at the same rent and agreed to execute every kind of repairs.
3. The defendant occupied the godown and used it for the storage of bags of sugar. On the 5th December 1908 the godown was much damaged by fire, the roof and some doors and windows and the plastering of the walls being destroyed. On the 10th of December 1908 the plaintiffs sent to Lakhamsey a cheque for the November rent and wrote that as the godown had now been burnt their agreement ceased until it should have been thoroughly repaired and made fit for the storage of goods.
4. Lakhamsey replied on the nth December that plaintiffs would have to pay the rent of the godown as sugar bags and other catehra were still lying therein and that until the godown was cleared and possession given to Lakhmsey the plaintiffs were responsible for it.
5. These letters are consistent with complete ignorance on the part of the writers of the provisions of Section 108 (e) of the Transfer of Property Act under which the plaintiffs had the option of electing to treat the lease as void. The letter of the 10th of December rather indicates that the plaintiffs wished to have the godown repaired by Lakhamsey for their benefit and that rent should be suspended during the repairs.
6. At any rate owing to the conduct of the defendant and his assignees in not vacating the godown the plaintiffs were unable to let Lakhamsey into possession and accordingly paid rent for the month of December,
7. On the 16th January 1909 Lakhamsey recommenced the correspondence by threatening to charge Rs. 2000 from the 1st February if the possession was not given on the 31st January in consequence of the plaintiffs holding over.
8. The plaintiffs then presorted to solicitors and on the 20th January wrote that the godown having been destroyed by fire, on the 5th of December 1908, they exercised their option to terminate the lease and denied liability for rent after the 1st of January.
9. On the same date the landlord Lakhamsey replied that the plaintiffs could not exercise their option to terminate the lease until they put him into possession of the godown. To this position Laklaamsey adhered, and in this position the plaintiffs appear to have acquiesced until Lakhamsey was, owing to the removal of the sugar stored by the defendant, able to take possession of the godown.
10. The position taken up by Lalchamsey was, in our judgment, perfectly correct, and was in accordance with the provisions of Section 108 (m) of the Transfer of Property Act. If the avoidance of the lease under Section 108 (e) was effectual without surrender of vacant possession, the plaintiffs by failing to give vacant possession were holding over after the termination of their lease and were liable for rent under an implied monthly tenancy on the same terras as before. If the avoidance was ineffectual the lease continued until put an end to by mutual consent.
11. The defendant's position from the time of the fire was that he abandoned his sugar to his insurers who sold it to Gularn Mahamad Azam. The defendant did not make any arrangement to empty the godown on abandoning to the insurers but says he gave notice to the plaintiffs immediately the fire took place that he avoided his lease. This story was, we think rightly, disbelieved by the learned Judge. Gulam Mahamad, the purchaser of the sugar, utilized the godown as a place in which to put the sugar into different bags. Until this was done the sugar was not removed. The godown was vacated finally on or about the 16th of February.
12. The defendant on the 9th of January 1909 gave written notice to the plaintiffs that he had exercised his option to terminate the tenancy. The plaintiffs replied that as the godown was full of his salvage it was in his occupation and he was therefore liable for rent.
13. In our judgment this contention was correct. The abandonment to the insurers by the defendant was effected for his benefit and, in the absence of evidence that the insurers and their vendee Golam Mahamad kept the sugar in the godown in spite of protests by the defendant, we think that as between : the plaintiffs and defendant, the latter must be taken to have been in occupation, either under his original tenancy or under a similar one resulting from his holding over.
14. In our judgment the respective tenancies of the plaintiffs and the defendant terminated upon Lakhamsey entering into possession on the 16th of February by the consent of all parties interested. The defendant is, therefore, liable for the rent to plaintiffs up to that date.
15. We accordingly affirm the decree of the lower Court and dismiss the appeal with costs.