Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Weldon, with Jinnah, for the appellant:—Relationship is implied in a suit for use and occupation. If there was no relationship between the parties, the suit must fail: for damages have not been claimed. There was in fact no relationship after the respondents’ notice to Lakhamsey on 10th December. After that notice, if a right existed in anyone to claim against the appellant, it must have been in Lakhamsey alone. More probably the only right existing was that of Lakhamsey to sue the purchaser of the sugar as a trespasser. It is noteworthy that the word used in section 108(e) of the Transfer of Property Act is ‘void’. The lease does not merely determine: it is void. With regard to the sufficiency of notice given by the appellant, see Kunhayen Haji v. Mayan and Baliaramgiri v. Vasudev(2).
  • Setalwad, with him Jardine, Acting Advocate General, for the respondents:—The lease by Lakhamsey to the respondents was not in fact terminated by the letter of 10th December. The correspondence and the facts show that clearly. The letter itself is not such an avoidance of the lease as is contemplated by section 108(e) of the Transfer of Property Act. The respondents paid the rent for December, and Lakhamsey accepted it. Finally, they did not give him vacant possession. They were obviously still his lessees Further, the appellant's notice of avoidance was not given within reasonable time. He had continued in possession as if nothing had happened. In any case the notice could not make the lease void ‘ab initio’, but at the most only from the date of the notice: Dhuramsey v. Alimedbhai(3). But even after that date, he failed to give vacant possession, and thus continued liable.
  • Weldon, in reply:—The letter from the respondents’ solicitor to Lakhamsey on 20th January states clearly that they are exercising their option. The rent for December may possibly have been paid under a misapprehension as to their rights. The appellant was not using the godown. He had no concern with the purchaser of the sugar. In Dhuramsey v. Ahnedbhai there was no question of sub-tenancy.
Judges
  • Sir BASIL SCOTT
  • SIR S.L. Batchelor
Acts
  • provisions of section 108(e) of the Transfer of Property Act
  • provisions of section 108(m) of the Transfer of Property Act.
  • section 108(e)
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Weldon, with Jinnah, for the appellant:—Relationship is implied in a suit for use and occupation. If there was no relationship between the parties, the suit must fail: for damages have not been claimed. There was in fact no relationship after the respondents’ notice to Lakhamsey on 10th December. After that notice, if a right existed in anyone to claim against the appellant, it must have been in Lakhamsey alone. More probably the only right existing was that of Lakhamsey to sue the purchaser of the sugar as a trespasser. It is noteworthy that the word used in section 108(e) of the Transfer of Property Act is ‘void’. The lease does not merely determine: it is void. With regard to the sufficiency of notice given by the appellant, see Kunhayen Haji v. Mayan and Baliaramgiri v. Vasudev(2).
  • Setalwad, with him Jardine, Acting Advocate General, for the respondents:—The lease by Lakhamsey to the respondents was not in fact terminated by the letter of 10th December. The correspondence and the facts show that clearly. The letter itself is not such an avoidance of the lease as is contemplated by section 108(e) of the Transfer of Property Act. The respondents paid the rent for December, and Lakhamsey accepted it. Finally, they did not give him vacant possession. They were obviously still his lessees Further, the appellant's notice of avoidance was not given within reasonable time. He had continued in possession as if nothing had happened. In any case the notice could not make the lease void ‘ab initio’, but at the most only from the date of the notice: Dhuramsey v. Alimedbhai(3). But even after that date, he failed to give vacant possession, and thus continued liable.
  • Weldon, in reply:—The letter from the respondents’ solicitor to Lakhamsey on 20th January states clearly that they are exercising their option. The rent for December may possibly have been paid under a misapprehension as to their rights. The appellant was not using the godown. He had no concern with the purchaser of the sugar. In Dhuramsey v. Ahnedbhai there was no question of sub-tenancy.
Judges
  • Sir BASIL SCOTT
  • SIR S.L. Batchelor
Acts
  • provisions of section 108(e) of the Transfer of Property Act
  • provisions of section 108(m) of the Transfer of Property Act.
  • section 108(e)
See more information ...
Smart Summary

Factual and Procedural Background

The plaintiffs rented a godown from Lakhamsey Napu from 1st April 1908 to 31st March 1909 at a monthly rent of Rs. 1,100, with liberty to sublet and an agreement that the landlord would keep the godown in good repair. On 17th April 1908, the plaintiffs relet the godown to the defendant for the remainder of the term, agreeing to execute repairs themselves. The defendant used the godown for storing sugar bags.

On 5th December 1908, the godown was damaged by fire, destroying the roof, some doors, windows, and plastering. The plaintiffs sent rent for November but indicated their agreement ceased until repairs were made. The landlord disputed this, asserting the plaintiffs remained responsible until possession was restored. The plaintiffs paid rent for December due to the defendant's refusal to vacate.

Subsequently, the landlord threatened to charge Rs. 2,000 for holding over beyond 31st January 1909. The plaintiffs then claimed to have terminated the lease under section 108(e) of the Transfer of Property Act and denied rent liability after 1st January. The landlord maintained that termination required surrender of possession. The godown was finally vacated on or about 16th February 1909, and the landlord took possession.

The lower court ruled in favor of the plaintiffs, and the defendant appealed. The present opinion affirms the lower court’s decree.

Legal Issues Presented

  1. Whether the plaintiffs validly terminated the lease under section 108(e) of the Transfer of Property Act without surrendering vacant possession.
  2. Whether the plaintiffs remained liable for rent after the fire and during the period before the landlord regained possession.
  3. The effect of the defendant’s holding over and use of the godown post-fire on rent liability.

Arguments of the Parties

Plaintiffs' Arguments

  • They exercised their option under section 108(e) to terminate the lease after the godown was damaged by fire.
  • Denied liability for rent after 1st January 1909 on the basis that the lease had been terminated.
  • Asserted that the landlord was responsible for repairs or that rent should be suspended during repairs.

Landlord's Arguments

  • The plaintiffs could not terminate the lease without surrendering vacant possession.
  • Until the godown was vacated and possession restored, the plaintiffs remained responsible for rent.
  • Claimed rent for holding over after 31st January 1909 due to plaintiffs’ failure to give possession.

Defendant's Position

  • Claimed to have abandoned the sugar stock to insurers and thereby avoided the lease.
  • Notified plaintiffs of termination of tenancy on 9th January 1909.
  • The godown was used by the purchaser of sugar until the goods were removed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Section 108(e) of the Transfer of Property Act Option to treat lease as void upon destruction of the leased property. Recognized plaintiffs’ option to terminate lease but held it required surrender of vacant possession to be effective.
Section 108(m) of the Transfer of Property Act Requirement of surrender of possession to effect termination of lease. Supported landlord’s position that lease termination without vacant possession was ineffective and rent liability continued under implied tenancy.

Court's Reasoning and Analysis

The court examined the provisions of section 108(e) and 108(m) of the Transfer of Property Act to determine the validity of the plaintiffs' termination of the lease. It found that although the plaintiffs had an option to treat the lease as void due to the fire damage, this option could not be effectively exercised without surrendering vacant possession of the godown.

The plaintiffs failed to give vacant possession because the defendant and his assignees continued to occupy the godown by storing sugar and related materials. The landlord’s insistence that possession be restored before termination was upheld as correct under section 108(m).

The defendant’s claim of abandonment to insurers was disbelieved, and the court held that the defendant remained in occupation either under the original lease or an implied monthly tenancy due to holding over. Consequently, rent was payable up to the date the landlord took possession on 16th February 1909.

The court thus affirmed the lower court’s decree, dismissing the appeal and confirming the defendant’s liability for rent until possession was restored.

Holding and Implications

The appeal is dismissed and the decree of the lower court is affirmed.

The direct effect of this decision is that the plaintiffs were entitled to rent from the defendant until the landlord regained possession of the godown on 16th February 1909. The ruling clarifies that under the Transfer of Property Act, lease termination due to destruction of the property requires surrender of vacant possession to be effective, and failure to do so results in continued rent liability under an implied tenancy. No new precedent beyond the application of existing statutory provisions was established.

Show full summary ...

    Sidick Haji Hoosein v. Bruel

    Scott, C.J:— The plaintiffs rented from one Lakhamsey Napu a godown in Clive Road from the 1st 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.

    On the 17th April 1908 the plaintiffs 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.

    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.

    Lakhamsey replied on the 11th December that plaintiffs would have to pay the rent of the godown as sugar bags and other kutchra were still lying therein and that until the godown was cleared and possession given to Lakhamsey the plaintiffs were responsible for it.

    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.

    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.

    On the 16th January 1909 Lakhamsey recommenced the correspondence by threatening to charge Rs. 2,000 from the 1st February if the possession was not given on the 31st January in consequence of the plaintiffs holding over.

    The plaintiffs then resorted to solicitors and on the 20th January wrote that the god own 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.

    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 Lakhamsey 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.

    The position taken up by Lakhamsey 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 terms as before. If the avoidance was Ineffectual the lease continued until put an end to by mutual consent.

    The defendant's position from the time of the fire was that he abandoned his sugar to his insurers who sold it to Gulam 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.

    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.

    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 Gulam 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.

    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.

    We accordingly affirm the decree of the lower Court and dismiss the appeal with costs.

    Attorneys for the appellant: Messrs. Thakurdas and Co.

    Attorneys for the respondents: Messrs. Pestonji, Rustomji and Colah.

    Decree affirmed.
    K.MCI.K
    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Sidick Haji Hoosein v. Bruel
    (Sep 2, 1910)