Amberson Marten, C.J.
1. 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.
2. 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 ease on the basis that Umersey was his tenant of this room.
3. 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 wash-houses where Umersey happened to be at the time of the collapse. What right 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.
4. 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 fourth floor and the staircase to the ground floor. [His Lordship then discussed the oral evidence and proceeded : ]
5. On that evidence I hold it to be clear that Umersey was not an ordinary tenant of the privies and wash room on the fourth floor, despite the use of the word 'let' by Bhimji, and the defendant. They were not let to Umersey exclusively, 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 re-passing. 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 license 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 bo different. But as it is, I think the tenants on the fourth floor could not have legally objected to their being deprived of the user of privies on the fourth 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 fourth floor. In my judgment, then, the privies and wash-houses wore merely conveniences provided by the landlord for the use of his tenants, but kept under his sole control both as regards user and repairs.
6. 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 [1923] A.C. 14:-
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 what is reasonably necessary for the reasonable use and enjoyment of the flat for that purpose.
7. So, too, in Butterley Company, Limited v. New Hucknall Colliery Company, Limited [1910] A.C. 381 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 wash-house on the fourth 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.
8. In the result, therefore, I would hold that though Umersey was the tenant of room No. 51, he enjoyed only a revocable license to use the privies and wash-house on his floor, and that he had no license to use any of the privies or wash-houses on the other floors. Consequently, in my judgment, he was not a tenant of the privies, nor did he have an easement over them.
9. I recognise that the distinction between an easement and a license may be a fine one. (See Gale on Easements, 10th Edn.,p. 2 and Lord Hastings v. North Eastern Railway. [1898] 2 Ch. 674 [1899] 1 Ch. 656 But in the present case I think Umersey's rights over the privies on the fourth floor amounted to a license as defined in Section 52 of the Indian Easements Act, 1882. And even if it should be held that the license 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 I.L.R. (1893) 18 Bom. 382 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 license. 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 I.L.R. (1889) Cal 640a case which the industry of my brother Kemp has brought to my attention-a license 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 license. Petheram C.J. followed Wood v. Leadbitter (1845) 13 M. & W. 838 and said (p. 641) :-
That case decided that the license 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 license were revoked contrary to the terms of any express or implied contract.
10. This may be compared with Section 64 of the Indian Easements Act.
11. The next question is, what duty, if any, did the defendant owe to Umersey in respect of the privies and wash-house on the fourth 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.
12. 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 tsar or irresistible force.
13. 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 don't remember whether I informed the tenants before making the change. I think that I did not. Their attention was not drawn to the change.
14. 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 would be responsible to the other for damages to the demised premises.
15. 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 [1906] A.C. 428 the head-note 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.'
16. At p. 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 Erle C.J. in Robbins v. Jones (1863) 15 C.B.N.S. 221 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 tumble-down house ; and the tenant's remedy is upon his contract, if any.'
17. Lord Macnaghten then proceeds (p. 430):
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.'
18. A similar observation applies as regards the tenant himself unless the landlord had contracted to repair (see Lane v. Cox [1897] 1 Q.B. 415. 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 [1908] 2 K.B. 278 where an owner of flats was held to bo 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 I.L.R. (1886) 11 Bom. 329 a case of a hole dug in a path.)
19. But to these general rules English law has engrafted a well-recognised exception, viz., that the landlord must not lay what is described as a trap for persons coming into the property by his invitation or license. Fairman v. Perpetual Investment Building Society [1923] A.C. 74 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 three to two was that on the facts the action failed. At p. 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 (1866) L.R.I.C.P. 274
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 ho 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.''
20. And at p. 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.
21. In the present ease I would hold that the defendant retained control and possession of the latrines and wash-houses, and invited Umersey to us;) those on the fourth floor. Consequently, in my judgment, defendant owed a duty to Umersey not to lay a trap for him in respect of' such us T. This duty is not, I think, negatived by the tact that the relationship of landlord and tenant existed between them as regards room No. 51. In Dunster v. Hollis [1918] 2 K.B. 793 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. [1893] 2 Q.B. 177 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 Mart v. Rogers [1916] 1 K.B. 646 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. 79(3-7.
22. 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 plaintiff's 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 license as defined by Section 52. That being HO, it would be the defendant's duty under Section 57 to discloss 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 Iicensee. Substantially this amounts, I think, to the duty of the defendant not to lay a trap either at the beginning of the license 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 [1908] 1 Ch. 697 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 (1880) 5 Q.B.D. 602 where a landlord was held not liable for a burst water-pipe from a top cistern supplying several tenants in a building).
23. 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. [His Lordship then dealt with the evidence as to negligence and proceeded.-]
24. 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 posts 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 wore 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 ho 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 wash-houses and latrines.'
25. 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.
26. 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 second 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 doss not by itself afford an adequate explanation for three weeks' delay in starting work after the Receiver's letter of J- 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 ho 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 wash-houses.
27. 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.
28. 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.R. Co. (1870) 7 B.H.C.R. 113The decree should be varied accordingly. But apart from this, I am not prepared to increase the damages of Rs. 6,500 awarded by the learned trial Judge. The true measure of damages appears to be :-
What, but for the accident which terminated his existence, would have been his reasonable prospects of life, work, and remuneration : and also how far these, if realized, would have conduced to the benefit of the individual claiming compensation.' (See Grand Trunk Railway Company of Canada v. Jennings (1888) 13 App. Cas. 800.
29. We have looked carefully into plaintiffs' evidence to the financial condition of Umersey, and we agree with the learned Judge that it is exaggerated or open to serious suspicion. In particular we are not satisfied as to the genuineness of the receipt Exhibit E, nor as to the non-production of certain material witnesses on this part of the case.
30. As regards interest, this is not mentioned in the cross-objections, but I think the decree should be varied by directing the payment of interest on judgment at sis per cent. Under the special circumstances of this case, I think we should also exercise our discretion under Section 34 of the Civil Procedure Code in favour of the plaintiffs, and award interest on the Rs. 6,500 at six per cent, per annum from the date of the suit (November 24, 1923) up to the date of Mr. Justice Percival's decree.
31. The decree should also be varied by striking out all directions for payment of the plaintiffs' solicitors' costs out of the Rs. 6,500. The plaintiff's are now to get costs as between solicitor and client from the defendant, and as he claims to have eighty-two tenants, presumably he is in a financial condition to pay. The difference if any between costs 'as between' solicitor and client and costs 'between' solicitor and client (according to the phraseology used in Bombay) should be small, and I do not propose, on the present materials, to direct the minor plaintiffs to bear it. Costs 'as between' solicitor and client should normally satisfy their solicitors. But to avoid any chance of hardship we will give liberty to apply to the appellate Court on the conclusion of the taxation. This will, however, be a matter for determination between the plaintiffs and their own solicitors. It will not concern the defendant.
32. I would, accordingly, dismiss the appeal with costs as between solicitor and client. On the cross-objections the decree will be varied as above mentioned and the defendant will pay the costs as between solicitor and client.
33. In conclusion I would like to point out that the interesting and able arguments of counsel before us have shown that the working classes in Bombay do not enjoy the same statutory protection in the matter of house accommodation as exists in England under the modern Housing Acts which are described by Lord Phillimore as largely removing a 'social or economical mischief' in certain cases. (See Ryall v. Kidwell & Son. [1914] 3 K.B. 135. Thus Section 14 of the Housing, Town Planning etc. Act 1909 (which is an extension of Section 75 of the Housing of the Working Classes Act, 1890) provides that in any contract made for letting for habitation a house to which the Act applies, there shall be implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation. And a 15 implies an undertaking to keep it so fit during the holding, with power for the local authority to intervene in case of default. Accordingly, a tenant can sue the landlord on these statutory undertakings, though a stranger to the contract cannot do so. (See Ryall v. Kidwell & Son.) In Scotland, tenants of urban houses appear to be protected under the ordinary law apart from any statute, though this is not so as regards farm houses in rural districts (See Cameron v. Young. [1908] A.C. 176 It is not suggested that in the present case Umersey belonged to the so-called 'working classes'- a much misused phrase, for it implies that certain limited classes have the monopoly of work which happily is not the fact. But the arguments have led us to consider the general position in law of landlord and tenant with regard to dilapidated dwellings. And as houses not infrequently collapse in Bombay, it may be that the legislature, will think fit to afford some protection to the poorer classes on the lines of the above English Act, for the latter have not the knowledge or the ability to bargain effectually with their landlords for their own protection.
Kemp, J.
34. 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, Umarsey Punja, up to March 23, 1923, was residing with his family in a room on the fourth 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.
35. 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 Umarsey Punja and twelve other persons were killed. The plaintiffs are the persona 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 Umarsey 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.
36. Mr. Justice Percival awarded plaintiffs Rs. 6,500 compensation and costs of the suit and directed the compensation, after payment of the attorney and client costs, to bo divided in the manner described by him between the plaintiffs. From that judgment and order the defendant has preferred the present appeal.
37. 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 fourth floor.
38. 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,
39. 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.
40. The tenants on the fourth 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 wash-house. 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 license 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 license 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 license 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. I.L.R. (1889) Cal 640 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 stair-cases 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 stair-case 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 I.L.R. (1893) 18 Bom. 382 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.
41. In Indermaur v, Dames (1866) L.R. 1 C.P. 274 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 he was aware.
42. 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 any 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. [1923] A.C. 74See 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 Decembar 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 ho 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 fourth floor, obviously their condition constituted a hidden trap to the privies of the fourth 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 [1925] W.N. 236 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.
43. 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.
44. 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.
45. The plaint does not allege that the defendant was guilty of a breach of his implied covenant for quiet enjoyment (see Section 108 of the Transfer of Property Act). Had it done so the point could not have boon dismissed without some consideration.
46. It only remains to consider the compensation. I think the same principles apply under Act XIII of 1855 as are laid down for the determination of compensation under Lord Campbell's Act in England. Those principles have been stated in Royal Trust Company v. Canadian Pacific Railway Company (1922) 38 T.L.R. 899 and Baker v. Dalgleish Steam Shipping Co [1922] 1 K.B. 361 where, so far as I am aware, the latest pronouncements of the law on the point in England are to be found. They lay down that the damages are compensation for the loss of the actual pecuniary benefit which the beneficiaries might reasonably have expected to enjoy had the deceased not been killed. I think Mr. Justice Percival applied the correct principle but I would vary his decree by allowing costs as between attorney and client for which there is ample authority in the decided cases.
47. As to interest on the compensation I think it should be allowed from the date of the suit. It is not the practice in this Court to allow interest on damages, at any rate up to the date of the suit. Thereafter under Section 34 of the Civil Procedure Code it is at the Court's discretion to allow it or not. My practice has been not to allow it for the period between suit and judgment unless the defendant has deliberately prolonged the proceedings. My reason is that the defendant is unable, until the amount of damage is ascertained, to bring the amount into Court. I think, however, under the circumstances of this case, interest may properly be allowed from the date of the suit.
48. I agree with the order proposed by the Chief Justice and that this appeal should be dismissed as in his judgment.