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Report No. 70

93.11. Clause (d).-

Clause (d) of section 108 reads-

"If during he continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease".

We have no comments on the clause.

93.12. Clause (e).-

Clause (e) provides that 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 is 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.

The proviso to the clause is as follows:-

"Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provisions."

The clause does not apply where the parties have specifically agreed that in spite of land being lost by diluvion or damage being caused by flooding, the lessee would be liable to pay the whole rent.1 Where the property leased is not destroyed or rendered substantially or permanently unfit, the lessee cannot avoid the lease on the ground that he does not, or is unable to use the land for purposes for which it was let out to him.2

1. Surpat v. Shea Prnsad, AIR 1945 Pat 300.

2. Raja Dhruv Debchand v. Raja Harmohinder Singh, AIR 1968 SC 1024.

93.12A. English law.-

Clause (e), it may be noted, differs from the English Law.1 In England, in the absence of an express contract, destruction does not free the land.2

1. (a) AIR 1914 Sind 75 (78);

(b) AIR 1936 Mad 664.

2. Cricktewood Property Act v. Leightons Trust, 1945 All ER 252.

93.13. The clause applies the principle1 underlying section 56, contract Act, to leases.

Lessee's option.-Clause (e) clearly indicates that where a material part of the property has been destroyed, it is the lessee's option to treat the lease as void. This clause is obviously based on the assumption that there is no frustration as such in the sense of the lease automatically coming to an end,2 for, it is left to the volition of the lessee only, and not to that of the lessor, to put an end to it, provided that he is not in default. In this sense, therefore, the clause only partially accepts the doctrine of frustration in its application to a lease.3

1. AIR 1966 All 225 (226).

2. Munnuswamy v. Muniramaiah, AIR 1965 AP 167.

3. Mulla, (1973), p. 697.

93.14. Requisition.-

Cases have recently arisen in India in which demised premises have been requisitioned by the Government for long periods of time.1

Thus, it has been held that where a part.2 or where the whole, of the demised premises have been requisitioned, there is no frustration of the lease. No reference was made in these cases to section 108, clause (e). If reference had been made to it, interesting questions would have arisen, as has been pointed out by Mulla,3 First of all, it would have had to be considered whether the Governmental action of requisition amounted to "other irresistible force" within clause (c), or whether these words are to be read ejusdem generis with the preceding words so as to mean some physical force.

1. Mulla, (1973), p. 697.

2. Abdul Hashem v. Balalhari, AIR 1952 Cal 330.

3. Tarabia Jivanlal v. Padmachand, (1949) 51 Born LR 797: AIR 1950 Born 89.

93.15. Demolition.-

Another interesting situation is of demolition. A single judge of the Allahabad High Court has held that clause (e) can have no application where the premises are demolished under the orders of a municipal authority.1 It would appear that such a case is one in which the expression "irresistible force" could possibly be applied. In this case the question would have been2 whether the property had been "rendered substantially and permanently unfit for the purpose for which it was let".

In Purshotam v. Batala Municipality-and an East3 Punjab case-A obtained a lease of tonga stands from the Municipality for Rs. 5,000, but, during the whole period of the year, the tongawallas refused to use the stands for no fault of A. It was held that the contract was frustrated. No question was raised as to whether a lease could be frustrated at all.

1. Mulla, .(1973), p. 697. Rahim Bux v. Mohammed Sharif, AIR 1971 All 16.

2. Mulla, (1973), p. 697.

3. Purshottam v. Batala Municipality, AIR 1959 EP 301.

93.16. Recommendation as to clause (e).-

For the reasons stated above, we think that it is desirable to add in clause (e), requisition1 and demolition2 specifically. We recommend accordingly. The following rough redraft is recommended-

Revised section 108(e)

(a) If by fire, tempest or flood, or violence of an army, or of a mob, demolition under the orders of a public authority or other irresistible force, any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, or

(b) as a result of requisitioning by a public authority, any material part of the properly is taken from the possession of the lessee, the lease shall, at the option of the lessee, be void.

(Proviso as at present)

1. Para. 93.14, supra.

2. Para. 93.15, supra.

93.17. Clause (f).-

Under clause (f) of section 108, if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to 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.

93.18. Obligation to repair when arising.-

The scope of clause (f), it should be noted, is narrow. The clause itself does not impose any obligation to repair on the landlord. It assumes that such an obligation may exist. If the obligation exists, the clause deals with the consequences of non-performance of the obligation by the lessor.

The lessor is under no liability to repair in the absence of an express contract making him liable.1 Indeed, section 108 (m) implies that the liability is that of the lessee.2

1. Bijoi Chandra v. Howrah Amta Light Co., AIR 1933 Cal 524 (525, 526) (Mookerjee &

Chotzner, JJ.);

Lakhmichand v. Ratanbai, 1927 ILR 51 Born 274;

Narayan Rajaram v. Shankar Diwakar, AIR 1955 Nag 202 (203) (para. 6);

Steuart & Co. Ltd. v. Mackertich, AIR 1963 Cal 198;

Slaefer v. Lambeth Borough Council, (1959) 3 All ER 378;

Dorapandi Konar v. Sundara Pathar, (1970) 1 MI.J 62.

2. Lakhmichand v. Ratanbai, 1927 ILR 51 Born 274.

93.19. English law as to repairs.-

The law is the same1 in England, for that law implies no covenant by the landlord to do repairs of any kind, either at the commencement of the tenancy2 or during the term.3 Nor does it make any difference that the tenant has covenanted to repair "fair wear and tear excepted"4 or given the landlord notice that the premises are in a dangerous condition.5 Indeed, in the absence of an express stipulation, the lessor's entry for the purpose of repairs would be a trespass in England.6

1. Bijal Chandra v. Howrah Anita Rly., AIR 1923 Cal 524.

2. Chappell v. Gregory, (1864) 34 Beav 250.

3. Arden v. Pullen, (1942) 10 M&W 321; Gott v. Gandy, (1853) 2 E&B 845 (847).

4. Arden v. Pullan, (1842) 10 M&W 321.

5. Gott v. Gandy, (1953) 2 E&B 845.

6. Barker v. Barker, (1829) 2 C&P 557; Stocker v. Planet Building Society, (1879) 27 WR 793 (877).

93.20. Lessor's express covenant to repair.-

The words "any repairs which he is bound to make to the property" in the section thus refer to a covenant to repair undertaken contractually. The onus of proving such a covenant is on the lessee. If the lessor commits a breach of his express covenant, the lessee is not entitled to terminate the tenancy; for the section gives him the right after notice to the lessor, to do the repairs himself and deduct the amount from the rent.1 The lessor's covenant to repair and the lessee's covenant to pay the rent are independent covenants.2

1. Bijay Chandra v. Howrah Amta Light Rly., (1923) 38 Cal Ij 177: 72 IC 98; compare Granada Theatres Ltd. v. Freehold Investment (Levionstone) Ltd., (1959) 2 All ER 176 (184).

2. Taylor v. Webb, (1937) 2 KB 283: (1937) 1 All ER 590.

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