The finding of the Courts below is that a portion of the demised premises became unfit for paddy cultivation, because it was inundated by sea-water. The question therefore arises whether the tenant can plead as a defence to a suit for rent that he is entitled to proportionate abatement. There is not much authority on the subject. Mr. Anantha Krishna Ayyar contended that the principle of Sect. 108 Cl. B (e) of the Transfer of Property Act was applicable and that the only remedy open to the tenant was to have avoided the lease in toto. Mr. Lakshmana Rao for the respondent argued that the Transfer of Property Act not being in terms applicable to agricultural tenancies the application of the principle underlying the section must depend upon whether there are recognised pre-existing rules on the subject which render the application of the principle inequitable. He drew our attention to Enayutoollah v. Elahee Buksh and Sulimall v. Kali Prosad and contended that prior to the enactment of the Transfer of Property Act, the principle of rateable apportionment was recognised in this country. We may say that the idea is in accordance with the notions of natural justice and unless we are compelled to apply the provisions of the Act, there is no ground for not following the Judgment of Sir Barnes Peacock in 1864 W.R p. 42.
Even if the principle of Sect. 108 Cl. B (e) is to be invoked it is not clear that the present case is covered by the accidents enumerated. From the earliest times flooding by sea-water has not been recognised in England as standing on the same footing as destruction by fresh water floods. It is explained in 18 Halsbury 481 that whereas deterioration by fresh water flooding is reparable, flooding by sea water would render the land practically unfit for all time to come. Whatever may be the reason, it was laid down in Bacon's Abridgment Vol. VII p. 63 that the tenant can claim abatement where the leased land was flooded by sea water and this view has been accepted as good law by all text writers. Woodfall p. 479. Foa 112 and Halsbury Vol. XVIII p. 481. Therefore even under the Transfer of Property Act following these authorities, the word flood may have to be restricted to sea water flooding. Further it is open to argument whether Sect. 108 B (e) is exhaustive of the right of the tenants. Avoidance of tenancy is no doubt one mode of relief. But does it exclude the notion that the claim for abatement is available to him? The English law seems to countenance the view that avoidance is the only remedy. Baker v. Holt Pzattall. In Siddick Haji Hoosein v. Bruel & Co. and Dhuramsey v. Ahmedbhai, the principle has been accepted. However that may be in our opinion as the Act is not in terms applicable there is no reason for importing by way of analogy these technical considerations discussing rights between landlord and tenant in respect of agricultural tenancies. We think that the learned Judge was right. The second appeal is dismissed with costs.
S. S.Appeal dismissed.