Marten, C.J:—

This case raises important and interesting questions of law as to the liability of a landlord to one of his tenants for the collapse on March 23, 1923, of part of a large building let out mainly in rooms. The suit is brought by the widow and three minor daughters and mother of one Umersey Punja under the Indian Fatal Accidents Act, 1855 (which corresponds to Lord Campbell's Act in England), against the defendant as owner of Anand Building, Broach Street, Bombay, for damages for the latter's negligence in that, he “allowed the same building to remain in ruinous and dangerous condition until by reason of want of repairs it fell and caused the death” of the said Umersey Punja and twelve other persons. The defence is a denial of the alleged negligence, or that the defendant owed any duty to Umersey to keep the suit premises in repair. The trial Judge gave judgment for the plaintiffs and awarded them Rs. 6,500 damages. The defendant appeals.

The first question to determine is: what was the exact legal relationship between the defendant and Umersey with respect to this building? Unfortunately, as so often happens in India, the groundwork of facts is open to dispute because of slipshod business methods. There is no written tenancy agreement. Consequently, apart from certain rent bills, we have to depend on oral evidence as to the origin and nature of Umersey's occupation and user of the suit premises. It was originally denied by the defendant that Umersey was his tenant at all, and it was pointed out that the rent bills for the room No. 51 which Umersey lived in were all made out in the name of Umersey's brother-in-law Bhimji Parbat. The evidence, however, showed that Bhimji left the building many years before 1923, and that Umersey had ever since been in occupation of Bhimji's room No. 51 and paid the rent therefor. Accordingly, the learned Judge held that the room No. 51 was occupied by Umersey as a tenant of the defendant. In appeal this finding is not challenged by the defendant. He is content to argue the case on the basis that Umersey was his tenant of this room.

That, however, does not conclude the question, for it was not this room which fell and injured Umersey, but a different portion of the building consisting of privies and washhouses where Umersey happened to be at the time of the collapse. What light of user then did Umersey have over these privies? Here I should explain that the building in question consists of a ground and five upper floors. The ground floor contains, a godown. Each of the five upper floors has thirteen rooms in it, and two privies and one wash room. Of these thirteen rooms seven are on one side of a corridor and six on the other. The defendant says that these rooms are usually let out singly, but sometimes a tenant takes two rooms. Umersey's room No. 51 was away from the privies, and consequently he had to walk down this corridor to get to the privies on his floor. The evidence shows that the privies on each floor were primarily, if not exclusively, for the use of the tenants on that floor only. The building as it existed prior to the collapse is shown in the plan, Exhibit 2, which was passed by the Municipality in 1902 when this portion of the building was built. It shows that there was a staircase connecting the various floors with an exit on the ground floor.

Turning next to the documentary evidence, the rent bills, Exhibit A and Exhibit B, only purport to shew that a “room” was let. Nothing is there said about the user of the privies and wash rooms, any more than of the corridor on the 4th floor and the staircase to the ground floor. The oral evidence must be accepted with caution as, in the events which happened, it was to the interest of the defendant, to contend and the plaintiffs to deny (for reasons which I will state later) that Umersey was a tenant of the privies, or at least was a licensee under an irrevocable licence during the period of the tenancy. The evidence of the defendant in chief on this point is as follows:—

“What I let is the room together with the use of the privy and washhouse. I show them the privy and the washhouse. The privies and washhouses are used by the tenants of each floor.”

Then in cross-examination he said:

“A room is pointed out to a tenant and also the water tap and the latrines. If the tenant comes to me I speak to him. The Bhaiya does this. He points the above out. He shows the privies and the washhouse as being for the use of the tenant. This is all. This is done under my order. I direct the Bhaiya in this way always. There is no separate rent charged for them. They are let along with the rooms on that floor. They are not let to separate tenants. They are for the use of all the tenants. They are let along with the rooms. There is no written evidence to support this statement. The expenses for the privies would only be shown as expenses for the whole building. I have repaired them along with the rest of the building. I did not ask the tenants to pay for such repairs. I would not have required them to pay because of the privies being let to them. There were seven rooms on one side and six on the other with a corridor between. The passage was used by them. It was not let to them. I cannot say whether I let the staircase to any one. I would mention specially the privies and washhouse to an intending tenant.”

Then in re-examination he said:

“I charge tenants for improvements, not for repairs. The rent includes the Municipal tax. That Municipal tax includes the Halalkhore tax.”

On behalf of the plaintiffs, the principal evidence on this point was that of Umersey's brother Ranchoddas, and the former tenant Bhimji, and another tenant Virji. Ranchoddas when recalled said:

“Deceased was in the latrine at the time of his death. He had the right to use the latrine. The tenants can use the latrines and washhouses……Each floor contains latrines and washing places. Tenants of each floor use the latrines and washhouses of that floor. I was there when the collapse took place. Two latrines, one washhouse and one room or part of the passage fell down on all the floors.”

In re-examination be said:

“Only the tenants of the 4th floor could use the latrines on that floor.”

Bhimji in his evidence said:

“When I went there I took the room from the landlord's Bhaiya. He is the rent collector. The rent was Rs. 6 about. It included use of the latrines and washhouses. I was let the room and latrines and washhouses. So also in the case of other tenants. The latrines and washhouses can be used only by the tenants of the respective floors.”

Virji said:

“I lived on the 4th floor………I occupied one room. The room, the passage and latrines were used by me. But the latter were not let to me. We were allowed to use the latrines and water taps. The latrines were used by the other tenants on the same floor.”

On that evidence I hold it to be clear that Umersey was not an ordinary tenant of the privies and wash room on the 4th floor, despite the use of the word “let” by Bhimji, and the defendant. They were not let to Umersey exclusivly, nor did he have any exclusive or unlimited right of user. Nor was he in possession of them. At most he had a right of user in common with all other persons having the like right, but limited both as regards time and manner of user. In this respect it would resemble a right of way which, strictly speaking, must be used reasonably for the primary purpose of passing and repassing. He would have no right, for instance, to use the privy as a lumber room. But I find it more difficult to say whether this right of user was merely permissive and revocable at the will of the landlord, or whether it was in the nature of a licence or easement, coterminous with the duration of the tenancy and irrevocable during that period. In my judgment the former is the true view. The rent bills which are the only written evidence make no mention of this right of user at all. The onus of showing that it was an irrevocable or other higher right would, I think, lie on the defendant who affirmed its existence under section 103 of the Indian Evidence Act, for I do not think that as regards the privies the parties are shown to have acted as landlord and tenant of such privies within the meaning of section 109. If the rent bills had referred to the privies as well as room No. 51, the case, I agree, would be different. But as it is, I think the tenants on the 1th floor could not have legally objected to their being deprived of the user of privies on the 4th floor and told to use others; nor, on the other hand, to the tenants on the other floors being given the use of the privies on the 4th floor. In my judgment, then, the privies and washhouses were merely conveniences provided by the landlord for the use of his tenants, but kept under his sole control both as regards user and repairs.

The legal rights of the tenants, therefore, over the privies were, in my opinion, even less than those over the staircase to the ground floor, for as regards the staircase they could presumably claim a right of way by necessity or by necessary implication. Thus in Fairman v. Perpetual Investment Building Society, Lord Atkinson said (p. 85):—

“When the owner of a flat lets it to a tenant for the purpose of its being resided in by the tenant and his family the landlord must, I think, be taken to have given permission for whatever is reasonably necessary for the reasonable use and enjoyment of the flat for that purpose.”

So, too, in Butterley Company, Limited v. New Hucknall Colliery Company, Limited, the right to let down an upper seam was held to be implied under the terms of the coal mining lease then in dispute, because otherwise the coal in the lower seam could not have been worked in accordance with the custom of that district as contemplated by both parties to the lease. The evidence before us is, however, insufficient to establish that the tenancy of this room No. 51 would be impracticable without the use of the privies and washhouse on the 4th floor. Nor have any Municipal regulations been cited to us to show that after the building had once been erected it would be compulsory on the landlord to maintain these particular privies for the use of his tenants on that floor.

In the result, therefore, I would hold that though Umersey was the tenant of room No. 51, he enjoyed only a revocable licence to use the privies and washhouse on his floor, and that he had no licence to use any of the privies or washhouses on the other floors. Consequently in my judgment he was not a tenant of the privies, nor did he have an easement over them.

I recognize that the distinction between an easement and a licence may be a fine one. (See Gale on Easements, 10th Ed, p. 2, and Lord Hastings v. North Eastern Railway.) But in the present case I think Umersey's rights over the privies on the 4th floor amounted to a licence as defined in section 52 of the Indian Easements Act, 1882. And even if it should be held that the licence was coupled with the transfer of room No. 51 to Umersey and so was irrevocable during that tenancy under section 60(a), yet the obligations of the defendant under sections 57 and 58, to which I will refer later, would still apply. In Vishnu v. Rango Ganesh Purandare the vahivat of a privy together with a right of way there was expressly granted in the mortgage of another portion of certain property. This was held to be an easement binding on the assigns of the parties and not a mere licence. But the grant there was a clear one, and did not depend on the disputed terms of an oral monthly tenancy as here. On the other hand in Prosonna Coomar Singha v. Ram Coomar Ghose(3)—a case which the industry of my brother Kemp has brought to my attention—a licence to use a privy although acted on for many years and apparently in consideration of the plaintiff giving up all title to the land was held to be a revocable licence. Petheram C.J followed Wood v. Leadbitter(4) and siid (p. 641):—

“That case decided that the licence to go upon another man's land, unless coupled with a grant, was revocable at the will of the grantor, subject to the right of the other to damages if the licence were revoked contrary to the terms of any express or implied contract.”

This may be compared with section 64 of the Indian Easements Act.

The next question is, what duty, if any, did the defendant owe to Umersey in respect of the privies and washhouse on the 4th floor? The parties here are all Hindus, and, therefore, in so far as this question involves matters of contract and dealing between party and party, it has to be decided according to Hindu personal law or custom under section 112 of the Government of India Act, 1915, and clause 24 of the Supreme Court Charter of 1823 apart from express statutory provisions. In fact no Hindu personal law or custom on the point has been brought to our attention. I take it, therefore, that we must “give judgment and sentence according to justice and right” under clause 28 of the Charter of 1823 subject to any express statute. In this respect it will be borne in mind that the Indian Fatal Accidents Act, 1855, only enables the representatives of a deceased to sue for damages in respect of a wrongful act, neglect or default which the deceased could have sued for if it had not caused his death.

We must, therefore, see what suit Umersey could have brought in respect of the gross negligence alleged in para. 5 of the plaint. There being nothing in Hindu law to assist us on that point, we may turn to section 108 of the Transfer of Property Act which defines the rights and liabilities of landlord and tenant in the absence of any contract or local usage to the contrary. Sub-section (c), in effect, provides for a covenant by the landlord for quiet enjoyment. Sub-section (e) renders the lease voidable at the option of the lessee if a material part of the property is destroyed by irresistible force unless occasioned by the wrongful act or default of the lessee. Sub-section (f) enables the lessee to deduct from the rent the cost of any repairs which the lessor is bound to make but neglects to make after notice. Sub-section (m) obliges the lessee to keep the property in as good a condition as it was when he was put in possession subject only to the changes caused by reasonable wear and tear or irresistible force.

It will thus be seen that the Act imposes no obligation on the landlord to repair. On the contrary, a qualified obligation in that respect lies on the tenant under sub-section (m) for in my judgment section 108 was not ousted or modified by any “contract or local usage to the contrary” as regards any point material in the present case. The oral evidence is insufficient to establish any express bargain on the subject of repairs. The rent bills in force when Umersey originally became tenant contain no provisions about repairs. (See Exhibit A.) It is true that when subsequently the defendant bought the property he introduced a new condition into his rent bills exempting him from liability to repair. (See para. 4 of Exhibit B.) But the evidence is insufficient to shew that this new condition was ever brought to the attention of the tenants. He himself says:—

“I do not remember whether I informed the tenants before making the change. I think that I did not. Their attention was not drawn to the change.”

I would accordingly hold that while as between landlord and tenant no obligation to repair either the room No. 51 or the privies lay upon the landlord, yet the tenant would not be liable for damage caused by reasonable wear and tear or irresistible force to room No. 51, nor to the privies either even if contrary to my opinion he could be regarded as a tenant of the privies. As then the privies were destroyed here by irresistible force not due to the wrongful act or default of the tenants, I think the legal position would be that Umersey if a tenant could determine the tenancy under sub-section (e) of section 108, but that neither party could be responsible to the other for damages to the demised premises.

In this respect the tenant would, I think, be in a more favourable position than under English law. It is clear that, apart from express contract or modern statutory provisions such as those under the Housing of the Working Classes Acts, there would be no obligation on an English landlord to repair. In Cavalier v. Pope, the headnote is as follows:—

“The owner of a dilapidated house contracted with his tenant to repair it, but failed to do so. The tenant's wife, who lived in the house and was well aware of the danger, was injured by an accident caused by the want of repair:—Held, that the wife, being a stranger to the contract, had no claim for damages against the owner.”

At page 430 Lord Macnaghten said:—

“The law laid down by the Court of Common Pleas in the passage quoted by the Master of the Rolls from the judgment of Erie, C.J in Robbins v. Jones is beyond question: ‘A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumbledown house; and the tenant's remedy is upon his contract, if any’.”

Lord Macnaghten then proceeds:—

“In this case the husband was the tenant. The wife, who was not the tenant, cannot be in a better position to recover damages than a customer or guest. Her position is, perhaps, less favourable. She had the advantage or disadvantage of knowing more about the state of the house than any guest or customer could have known.”

A similar observation applies as regards the tenant himself unless the landlord had contracted to repair (See Lane v. Cox.) Further, it would not necessarily follow under English law that the collapse of the house would enable the tenant to determine the tenancy. He might still have to pay the rent. So, too, in the case of an ordinary easement there is in general no obligation on the part of the owner of the servient tenement to do anything in the nature of repairs apart from express contract. (See Huggett v. Miers, where an owner of flats was held to be under no obligation to an employee of one of his tenants to keep the common staircase lighted and Evans v. The Trustees of the Port of Bombay, a case of a hole dug in a path.)

But to these general rules English law has engrafted well-recognized exception, viz., that the landlord must not lay what is described as a trap for persons coming into the property by his invitation or licence, Fairman v. Perpetual Investment Building Society is a recent and important case on that point. The building there was a block of flats. The trap complained of was a worn step in the common staircase. The plaintiff was a relative of and lived with a tenant of one of the flats. It was held that the only duty owed by the defendants as owner of the flats to the plaintiff was not to expose her to a concealed danger or trap. The decision by a majority of 3 to 2 was that on the facts the action failed. At page 86 Lord Atkinson dealt with the law as follows:—

“The plaintiff, being only a licensee, was therefore bound to take the stairs as she found them, but the landlord was on his side bound not to expose her, without warning, to a hidden peril, of the existence of which he knew, or ought to have known. He owed a duty to her not to lay a trap for her. But even if the plaintiff was in the position of an invitee of the defendants, her rights and duties in that character would be those described and measured by the well-known passage from Willes, J.'s judgment in Indermaur v. Dames… The passage referred to has, I think, for the last fifty-six years been accepted as a full and accurate statement of the law. It runs as follows: ‘The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact… It was ably insisted for the defendant that he could only be bound to keep his place of business in the same condition as other places of business of the like kind according to the best known mode of construction. And this argument seems conclusive to prove that there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business.’”

And at page 98 Lord Carson said:—

“The duty, in my opinion, of the landlord, who retains control and possession of a common staircase, is a common law duty, and it cannot be put higher than this, that he is bound to maintain it in such a condition that those who are invited to use it will not be exposed to any dangers which cannot be avoided by the exercise of ordinary care.”

In the present case I would hold that the defendants retained control and possession of the latrifnes and wash-houses, and invited Umersey to use those on the 4th floor. Consequently, in my judgment, the defendant owed a duty to Umersey not to lay a trap for him in respect of such user. This duty is not, I think, negatived by the fact that the relationship of landlord and tenant existed between them as regards room No. 51. In Dunster v. Hollis, one of several tenants was injured by defective steps in a common staircase used by the tenants but not forming part of the subject-matter of the demise to any of them. It was there held by Mr. Justice Lush that the landlord had laid a concealed trap, and was liable accordingly. (See p. 804.) This decision was referred to by Lord Buckmaster in Fairman's case at p. 82 without disapproval on that particular point. But Mr. Justice Lush also held that there was a contractual obligation on the part of the landlord in reliance on Miller v. Hancock. In view, however, of the criticisms of the House of Lords on the latter case, it can no longer be relied on in support of that wider proposition. So, too, the decision of Mr. Justice Scrutton in Hart v. Rogers is open to a similar comment. In that case, the landlord was held contractually liable for defects in a roof which led to damage by water to the flat of a tenant below. Accordingly I do not found my judgment on any contractual obligation on the part of the landlord, but on his lesser obligation not to lay a trap. The distinction between the various forms of legal obligations is well brought out in the above judgment of Mr. Justice Lush at pp. 796-7.

I may also refer to sections 57 and 58 of the Indian Easements Act, 1882, for although they were not cited in argument they support the arguments actually advanced by plaintiffs' counsel. I have already held that Umersey's right over the privies did not amount to an easement or an interest in the property, but was a licence as defined by section 52. That being so, it would be the defendant's duty under section 57 to disclose any defect in the property likely to be dangerous to the licensee of which the defendant was aware but the licensee was not. Further, under section 58 it would be the duty of the defendant not to do anything likely to render the property dangerous to the licensee. Substantially this amounts, I think, to the duty of the defendant not to lay a trap either at the beginning of the licence or during its continuance. It is not suggested that Umersey was ever informed or knew of the defect in the property which led to his death. It remains to be considered whether the defendant failed in his duty under section 57 to disclose it. Accordingly, in the view which I take that Umersey was not a tenant of the privies, it is unnecessary to consider whether the landlord could be made liable for a collapse of the privies either on the ground of breach of the statutory obligation for quiet enjoyment, or on the ground of derogation from grant (see Markham v. Paget where a landlord was held liable in damages to a tenant for subsidence of a house due to his refusing to take the necessary steps to prevent his colliery lessees from working under the house. See also Anderson v. Oppenheimer, where a landlord was held not liable for a burst water-pipe from a top cistern supplying several tenants in a building).

This brings me to the question whether the defendant did in fact lay a trap for Umersey, or fail in his duty under section 57. It is clear that on July 7, 1922, the defendant was warned by his neighbour Motibhai Pacha and Company that his eastern wall was in a dangerous condition (see Exhibit D). He replied the same day denying his liability, and calling for the report of his neighbour's engineer. Nothing more appears to have taken place between them, except that the neighbour's premises were damaged in the subsequent collapse of the privies on March 23, 1923. Personally I do not lay great stress on this warning. It was only contained in a postscript, and never followed up. The main complaint was against the dirty habits of the defendant's tenants in throwing slops and refuse on to the adjoining premises. The postscript was the work of the munim Shivji Bhimji, who professes to have seen a serious crack. His evidence on this point is, however, unreliable. He told the Court that the portion of the eastern wall, where the crack was, did not collapse. On the other hand, according to the engineers there was no crack in that portion, and on the contrary this portion was utilized in the recent rebuilding with the approval of the Municipality. So it may be that the postscript was only in the nature of a random shot by Shivji. If he had felt any serious alarm, presumably he would have applied to the Municipality, and they in the normal course of events would have had investigations made by their engineer.

But I do lay stress on the events of December 1922. Defendant then called in his engineer B.K Kagal for inspection of the premises in connection with another matter, and he then raised the question of the condition of the eastern wall. In examination-in-chief Mr. Kagal said:—

“I saw the eastern wall and I did not find that it was in a dangerous condition. I invited defendant to repair the southern part of the building containing the W.C as there was leakage apparent in that portion which I thought must have affected the timber work, that is, the joists and the flooring.”

In cross-examination he said:—

“…I saw the privies block, the washhouses particularly. The sides of washhouses were in disrepair. I was on the ground floor then. The disrepair would make water percolate through. I examined the ceiling from the ground floor. It was damp like the wall of this room…I think that the floors and the ends of the joists were affected by the water.”

Later on he deposed:—

“I told the defendant to make petty repairs of the place where the washhouses were situated especially to stop the leakage. I did not know how long the leakage had gone on. The floor looked as if there had been leakage for three or four years. I could not say definitely how long the leakage had gone on. One cannot say this for certain without careful examination: I asked defendant to stop the leakage and look to the timber work that was really affected. This would come under “petty repairs”. I said that it might get affected by the leakage. It was for him to get it repaired. If the leakage had gone on a long time, it would not be a case merely of petty repairs.”

Then in answer to the Court he said:—

“I thought the floors had got wet from the washhouses and also from the external rain. I am not in the know as to the cause of the collapse. The defendant should have had the matter more carefully examined.”

It is clear from other parts of his evidence that Mr. Kagal did not go upstairs, and that he was only there some five or seven minutes. Further the evidence of the other engineers shows that as the ends were probably embedded in masonry their real condition could not have been ascertained without a careful examination. But it is nevertheless clear that the defendant thus got a warning of a substantial defect in his building, and the view he took of it is shown in the important letter of December 28, Exhibit 4, which he at once got his pleader to write, viz.

“Under instructions from my client, Mr. Laxmichand Khetsey Punja, I have to address you as under:—

‘That you occupy a godown on the ground floor in my client's building in Broach Street. The latrines on the ground floor at the back of the said godown are in a dangerous condition, and stand in need of speedy and urgent repairs. My client wants to erect posts in order to render them quite safe and also to support the building which have live floors. But in view of the godown lying closed all day long, he is not in a position to carry out the said repairs.

I am therefore instructed to give you this final notice which I hereby do to keep the godown open daily from 8 in the morning to 7 in the evening on the receipt of this letter and in default please note that you will be held responsible for damages to life and property of my client and his tenants by my client's not being able to make the necessary repairs in time on account.’”

The defendant endeavoured to explain this damaging letter by stating that he merely told the pleader to send a notice in strong terms, and never told him there was any danger nor gave him any details except that there was some dampness. But the pleader is not called, and personally I do not believe he invented the details in the letter in question, although I can understand that the letter might have to be couched in terms which would bring home to its recipient the necessity for an early reply.

Following on this letter there was correspondence with certain solicitors (Exhibit 7), during which in a letter of January 24, 1923, the defendant's pleader repeated that the wall and latrines on the ground, floor were in a dangerous condition and stood in need of speedy and urgent repairs. Later on, Mr. Moos appears to have been appointed Receiver of the godown on the ground floor. Ultimately by about March 2, 1923, the defendant's solicitors were told by Mr. Moos that the godown would be kept open daily as requested by them until the repairs were completed. On March 15 Mr. Moos wrote asking for further instructions as the defendant was reported to be out of Bombay for a fortnight. The reply of the defendant's solicitors on March 20 was that work would be started from March 23. But this was just too late for at 7 a.m on March 23, the privies collapsed.

What was the cause of that collapse? On the evidence before us I would hold that the collapse was primarily due to the defects noticed by Mr. Kagal already alluded to, and which resulted in the ends of the posts and beams becoming rotten through percolation of water and dampness. And I think the fair inference from all the evidence is that it was at any rate the lowest post and beams which were thus affected, and that it was the collapse of these which led to the upper floors collapsing and not vice versa. In this connection it will be borne in mind that Mr. Kagal was the only engineer who saw the building before the collapse, and he saw it from the ground floor, and noticed dampness in the ceiling. Moreover the notices of December 28 (Exhibit 4) and January 24 (Exhibit 7) point to the necessity of repairs on the ground floor for the proper support of the upper floors. The defendant himself in para. 6 of his written statement attributes the collapse of the house to “the rotten condition of the posts and beams at the end”. The two independent engineers Mr. Gleschen of the Public Works Department and Mr. Billimoria of the Municipality both agree the ends were decayed. Mr. Gleschen thinks the decay was probably due to damp though it might be to dry rot, and that the decay was the probable cause of the collapse. Mr. Billimoria is more positive. He says in cross-examination that the decay was due to moisture in the wall and not to dry rot: that it was damp from percolation from the upper floors: and it was the absence of support which brought down the building. In examination-in-chief he stated that “the collapse was due to the ends of the posts and beams being decayed because of water, as that part of the building consisted of washhouses and latrines”.

Appellant's counsel contended that the theory that the collapse was due to decay on the ground floor was not advanced in the Court below. But this is not so. Mr. Gleschen stated that if the latrines on the ground floor were in a dangerous condition that would be likely to cause a collapse. By dangerous he meant if the walls were cracked and out of plumb, which any one could see. Mr. Billimoria stated that if there was lack of support of the latrines on the ground floor, then the upper portions might come down for want of support. And indeed one might fairly infer this as a matter of common sense under section 114 of the Indian Evidence Act. I attach no importance to the evidence of the defendant's engineer Mr. Mistry that his idea was that the south wall was not properly joined to the east wall, and must have given way without giving indication. This ingenious suggestion was made at the end of the case in answer to the Court. But although if true it would exonerate the defendant, it finds no place in the written statement nor in the evidence of the other three engineers, nor in the examination and cross-examination of Mr. Mistry himself, nor in his own report of June 25, 1923, Exhibit 12.

I give due weight to the facts that the decay could not be definitely ascertained without opening up the masonry: and that Mr. Kagal did not advise there was any immediate danger: and that on January 1, 1923, defendant came to live on the 2nd floor with his family, and that in the eventual collapse his own mother was killed. But after weighing all the evidence, and in particular his pleader's letters of December 28, 1922, and January 24, 1923, I am satisfied that he knew there was some risk, and that he was dilatory in removing that risk. A complaint to the Municipality would have speedily removed any trouble caused by the ground floor tenant. And a fortnight's absence from Bombay does not by itself afford an adequate explanation for three weeks delay in starting work after the Receiver's letter of March 2. It may be that the defendant thought the risk was a remote one, but he was nevertheless content to run it, and in my judgment he thereby laid a trap for Umersey within the principle of the above authorities. I also think that he failed in his duty of disclosure under section 57 of the Indian Easements Act. I also find that he was negligent. On the other hand there is nothing to show that Umersey was aware of there being any risk in using the privies and washhouses.

In the result, therefore, I think the learned Judge was right in holding that the defendant was liable in damages to the plaintiffs under the Indian Fatal Accidents Act. I would, accordingly, dismiss the defendant's appeal.

As regards the cross-objections, I think we may properly award costs as between solicitor and client, as has been done in other cases of this nature. (See Vinayak Raghunath v. G.I.P Railway Company.) The decree should be varied accordingly.

[The rest of the judgment is not material for this report.]

Kemp, J.:—The defendant-appellant is the owner of a house known as Anand Building at Broach Street, Bombay, consisting of a ground floor and five upper floors. The deceased, Umersey Punja, up to March 23, 1923, was residing with his family in a room on the 4th floor. On that floor there were thirteen rooms, two privies and a wash place. The other rooms on that floor were occupied by other tenants. All the evidence shows that the use of the two privies was allotted to the tenants of that floor.

On March 23, 1923, whilst the deceased was in the privy a portion of the house consisting of about twelve feet of the eastern wall and thirty feet of the southern wall collapsed bringing down the privies with it and Umersey Punja and twelve other persons were killed. The plaintiffs are the persons entitled in their own right under the Fatal Accidents Act (XIII of 1855) to sue and they brought this suit to recover Rs. 30,000 compensation for the death of Umersey Punja. The first plaintiff is his widow, plaintiffs Nos. 2 and 3 are his daughters, plaintiff No. 4, a posthumous child, and plaintiff No. 5, his widowed mother.

Mr. Justice Percival awarded plaintiffs Rs. 6,500 compensation and costs of the suit and directed compensation, after payment of the attorney and client costs, to be divided in the manner described by him between the plaintiffs. From that judgment and order the defendant has preferred the present appeal.

I do not propose to discuss the evidence to show that the deceased was, at any rate as regards the room in his occupation, a monthly tenant. I agree with the learned trial Judge on this point. A further question, however, arises as to the privies on the 4th floor.

The agreement of tenancy was an oral one. The rent bills from 1921, however, contained a clause that the landlord may effect repairs in the building or not as he chooses and that he is not responsible for any loss that may be caused. The Gujarati words show these refer to internal and not to external repairs. Still, in the absence of an agreement to the contrary and where there is no evidence of custom, there would be no obligation on the landlord to effect external repairs. Even if this change in the terms of the tenancy from 1921 was brought to the notice of the deceased or is binding on him, I am of opinion that in the events that have happened it makes no difference to the landlord's liability. But here I may say in passing that the intervention of the Legislature to prevent the introduction by landlords of such terms in tenancy agreements seems to me to be called for.

In England, under the Housing of the Working Classes Act, 1890, there is an implied condition that the house is, at the commencement of the holding, in all respects reasonably fit for human habitation. In Bombay, there is a scarcity of dwellings for the large working population of the City. They are glad to crowd into large structures in a bad state of repair or built with bad material and are too apathetic to care about or too ignorant to read the terms of the tenancy agreement. The heavy rains during the monsoon increase the danger, and the numerous tenements which collapse during this period of the year bear eloquent testimony to the fact that the Municipal supervision of these buildings is insufficient. I think that legislation on the basis of the Housing of the Working Classes Act, 1890, is necessary to protect such tenants from greedy and avaricious landlords.

The tenants on the 4th floor had a right to use the privies on that floor. The appellant in his evidence says he lets a room with the use of the privy and washhouse. I am of opinion that this was a right given to them by contract and annexed to the tenancy agreement under which they occupied their rooms. I think the right to use the privy on that floor was a licence coupled with the grant of the tenancy. The Municipal Regulations, no doubt, would require a sufficient number of privies for the inhabitants of each floor and the right to use them was necessary for the enjoyment of the tenancy. I do not think the landlord could have revoked this licence during the tenancy. To hold otherwise would enable the landlord to compel his tenant to vacate and would be a derogation of the grant of tenancy of the room. I do not think this was merely a grant of a licence to use the privy which, though given for consideration, would be revocable by the landlord subject to his liability for damages. In my opinion, the case comes within section 60(a) of the Indian Easements Act. It is, therefore, distinguishable from Prosonna Coomar Singha v. Ram Coomar Ghose. The rent bill evidencing the tenancy agreement of the deceased does not say anything about the privies but I do not doubt that the tenants of each floor were informed when agreeing to become tenants that their tenancy agreements carried with them the right to use the privies on that floor in common. I do not think that as regards the privies there was a lease; for the definition of a lease in section 105 of the Transfer of Property Act does not seem to apply to a restricted use like the one in this case. In the view I take it does not really very much matter; as, if the deceased had a contractual right to the use of the privy, his position to the landlord would, I think, be that of a licensee with an interest resembling an invitee. If he had not a contractual right to use the privy he would, I think, be quoad his landlord a licensee. Possibly, the principle of the staircases in which merely the right of access and egress are given would apply in the latter case unless it can be said that in the case of these privies the tenant had the right to enjoy them whilst in the case of a common staircase he has merely the right to make use of it for purposes of egress and access to the premises. I do not think the right to use the privy in either case amounts to an easement. It does not create an interest which is annexed to the land. It is personal to the tenant and the landlord. In Vishnu v. Rango Ganesh Purandare, the Court held there was an easement because there the right to use the privy was given by the deed of mortgage itself. Here the deceased was invited to make use of the privies in pursuance of his oral agreement of tenancy for the room.

In Indermaur v. Dames Willes, J., in delivering the judgment of the Court, considered that an invitee using reasonable care for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know. Here, I may at once say that in this case there is no evidence of contributory negligence whatever. For the reasons which I will give later I also find that the defendant did not use reasonable care to guard against an unusual danger of which lie was aware.

This is not a case in which we have to consider what duty, if any, the landlord owes to his tenant's guests or visitors. Here the plain question appears to me to be the relationship between the deceased and the defendant either by virtue of the former being the tenant of the room with a contractual right to enjoy the use of the privy or by virtue of the permission given to the deceased tenant, apart from any contract, to make use of the privy. I think the landlord's duty in that event cannot be placed lower than that which he owes to a licensee whom the landlord is bound to warn of any hidden danger of which the landlord knows or ought to know (Fairman v. Perpetual Investment Building Society). See also Indian Easements Act, section 57, which was not cited by counsel but was brought to my notice by my Lord the Chief Justice. That there was a hidden trap and that the deceased did not know of it and the landlord did I have no doubt. On July 7, 1922, the owner of the adjoining building, Moti Pachan, warned the defendant by letter that the eastern wall of the building in suit was in a dilapidated condition. To this the defendant sent a flippant reply stating that Moti could send his engineer to report on it. Defendant says that Moti Pachan was on bad terms with him but the evidence of this is unsatisfactory and, in any case, a false complaint that the defendant's building was dilapidated would be a queer way of showing it. The defendant's engineer who inspected the building on December 22, 1922, three months before it collapsed, says in his evidence that whilst he did not regard the eastern wall as in a dangerous condition he invited the defendant to repair the southern part of the building containing the water closets as there was leakage apparent in that portion. He admits that his inspection was a casual one. The evidence of the engineers Messrs Gleschen and Billimoria, who tried to ascertain the cause of the collapse from the debris, is to the effect that it must have been due to the ends of the joists and beams being rotten through leakage of water. Lastly, there is defendant's own letter, dated December 8, 1922, to his ground floor tenant in which he describes the latrines on the ground floor at the back of the tenants' godown as being in a dangerous condition and in need of speedy and urgent repairs. As these privies were below the privies on the 4th floor, obviously their condition constituted a hidden trap to the privies of the 4th floor. On this evidence I am of opinion that the defendant was warned of the danger and knew of it in July 1922. He took no active steps until December 1922 and even then I consider he did not act promptly. He appears to have been ready to begin work on March 23, 1923, but the wall collapsed that day. The danger obviously constituted a hidden trap to the persons occupying the privies above and the defendant never warned the deceased who was ignorant of it and could not possibly have known of it and took no proper measures to avoid exposing the deceased to it. In Griffin v. Pillet, where there was a covenant to repair, a delay of twelve days after warning was considered sufficient by the learned Judge in that case to render the landlord liable. I think the defendant is liable. The fact that his own mother was amongst those killed is insufficient to displace the evidence establishing both defendant's knowledge and his negligence.

But it is urged that there was no covenant on the defendant's part to effect external repairs. The answer to this appears to me to be that the absence of such a covenant can apply only to the tenancy of the room and not to the user of the privy.

I think, and I am glad to think, that the plaintiffs have a remedy against the defendant in this case. It would be with the greatest reluctance that I would apply in Bombay City the principle of those English cases which have established that a landlord may let a building in a ruinous condition to a tenant. I think they are totally inapplicable to the circumstances and local conditions of Bombay where the overwhelming majority of the inhabitants are not in a position to rent dilapidated buildings and put them in a state of repair.

The plaint does not allege that the defendant was guilty of a breach of his implied covenant for quiet enjoyment (see section 108(c) of the Transfer of Property Act). Had it done so the point could not have been dismissed without some consideration.

[His Lordship then dealt with the compensation to be awarded and concluded:—]

I agree with the order proposed by the Chief Justice and that this appeal should be dismissed as in his judgment.

Solicitors for appellants: Messrs Ardeshir, Hormusji, Dinshaw & Co.

Solicitors for respondent: Messrs Ferreira & Wallabhdas.

Appeal dismissed.

J.S.K