1. Rani Sundar Koer, the Defendant-Respondent, is the widowof Rajah Ramesswar Prosad of Muksudpur. On the death of her husband she set upa Will and obtained letters of administration and got her name registered inthe Collectorate as proprietress of the estate left by her husband. While inpossession of the estate, she executed a zurpeshgi thica lease in favour of thePlaintiff and Defendants Nos. 3 to 5 on receipt of Rs. 2,250 on the 16th ofJanuary 1904. It appears that on the 30th November 1913, one Babu ChandreswarProsad, the brother of the Rajah, instituted a suit against the Rani fordeclaration that, on the death of the Rajah, he became the rightful owner ofthe Raj and that the Rani had no title to it. He obtained a decree in that suitand that decree was confirmed on appeal by the High Court. It appears that theRani preferred an appeal to the Privy Council but afterwards the appeal wascompromised between the Rani and Babu Chandreswar Prosad and the appeal waswithdrawn by the former. The Plaintiff remained in possession of the zurpeshgiproperty till Bysack 1314 when he was dispossessed by Babu Cbandreswar Prosad.He thereupon brought the present suit for recovery of Rs. 984-6, that being hisshare of the zutpeshgi money (the interest of the Plaintiff and the DefendantsNos. 3 to 5 in the zurpeshgi money being separate and the latter having settledtheir dispute with the Defendant) and for damages for the loss sustained by himin consequence of his being dispossessed of the thica property. The Court offirst instance gave him a decree for a refund of Rs. 984-6, the amount of thezurpeshgi money in his share, and Rs. 3,031-14 as the profit for 7 years ofwhich he had been deprived. On appeal the learned District Judge confirmed thedecree in so far as it related to the refund of the zurpeshgi money but heldthat he was not entitled to any damages for the interruption of his possessionby Babu Chandreswar Prosad. The Plaintiff has appealed to this Court. Now sec.108, cl. (c) of the Transfer of Property Act, provides that in the absence of acontract or local usage to the contrary, the lessor shall be deemed to contractwith the lessee that, if the latter pays the rent reserved by the lease andperforms the contracts binding on the lessee he may hold the property duringthe time limited by the lease without interruption. We think the clause is wideenough to include disturbance of possession by a person with a paramount title.Even before the Transfer of Property Act it was held that in the absence of anexpress agreement to the contrary a landlord is under an implied obligation toindemnify the tenant against ouster or disturbance in his possession by his ownacts or by acts of those who claim under or have paramount right to him but notagainst the wrongful acts of strangers. [See Mrs. Benjamin Douzelle v.Gireedhari Singh 23 W. R. 121 (1874)]. After the passing of the Act it was heldin the case of Tayawa v. Gurshpdapia I. L. R. 25 Bom. 269 (1900), that thewords " without interruption" in sec. 108, cl. (c) of the Transfer ofProperty Act (IV of 1882) give a lessee in India the same rights as he wouldhave under what is known in England as a covenant for quiet enjoyment in anunqualified form, in other words, the lessee is protected against interruptionby whomsoever it is occasioned, and that where the interruption is caused bythe paramount owner of the property and not by a stranger, the lessor is boundto remove the interruption and if he fails to do so he must indemnify thelessee. Here there is nothing in the contract, namely, the zurpeshgi lease,against this covenant for quiet enjoyment. The Plaintiff was dispossessed bythe owner of the property, that is, by a person owning a paramount title and ifcl. (c) of sec. 108 is applicable to the case, we think the lessor Rani SundariKoer is liable to indemnify the Plaintiff for the loss sustained by him underthe implied covenant for quiet enjoyment under sec. 108, cl. (3). The learnedDistrict Judge, however, was of opinion that sec. 108, cl. (a), was applicableto the case. That clause runs thus:

The lessor is bound to disclose to the lessee any materialdefect in the property, with reference to its intended use, of which the formeris and the latter is not aware, and, which the latter could not with ordinarycare discover. Sec. 55, sub-sec. (1), cl. (a), also provides that the seller isbound to disclose to the buyer any material defect in the property of which theseller is, and the buyer is not, aware, and which the buyer could not withordinary care discover. It will be seen that sec. 55, cl. (a), is similar interms to sec. 108, cl. (a), with only this difference that the words "withreference to its intended use" which occur in the latter section do notfind any place in the former. It has been held that " material defect inthe property " includes a defect in title under sec. 55, sub-sec. (1), cl.(a) (vide Haji Essa Sulleman v. Dayabhai I. L. R. 20 Bom. 522 (1895). Thelearned Judges in that case, however, were of opinion that the expression"with reference to its intended use" in sec. 108, cl. (a), isobviously inserted to exclude defects in the title of the lessor beingdisclosed to the lessee. It seems to us that the words " material defectin the property with reference to its intended use" have reference to thenature and condition of the property demised. The position of the lessor inthis respect is similar to that of the bailor who, too, is bound to disclose tothe bailee faults in the goods bailed of which the bailor is aware and which materiallyinterfere with the use of them or expose the bailee to extraordinary risks andif he does not make such disclosure he is responsible for damages arising tothe bailee directly from such fault (vide sec. 50 of the Indian Contract Act).We are inclined to hold that a defect in the lessors title is not a "material defect in the property with reference to its intended use" withinthe meaning of sec. 108, cl. (a). But assuming that it is, the question ariseswhether the learned District Judge is right in holding that sec. 108, cl. (a),is applicable to the case. The learned Judge says as follows:

This lease was granted on the 16th January 1904. At thattime Babu Chandreswar Prosad had already instituted his suit claiming the wholeRaj. This Raj is for the most part situated in the Gaya District and the lesseeis a native of Manpur which is a suburb of the town of Gaya. It was commonknowledge in Gaya that Babu Chandreswar Prosad claimed the Muksudpur Rajadversely to Rani Sundar Koer and had opposed the grant of letters ofadministration to her and the registration of her name in the Collectorsregisters and the fact that he had filed a civil suit although this was filedat Patna and not at Gaya was a piece of knowledge which was accessible to everyone including the Plaintiff in this case. I hold, therefore, that this defectin the Ranis title was one which the Plaintiff could have with ordinary carediscovered.

The lessee, therefore, must be deemed to have taken thislease subject to this patent defect in the Ranis title. That being so, theimplied covenant for quiet possession was only for quiet possession so long asthe Ranis title continued.

2. It appears, however, that in her written statement theDefendant did not plead that the Plaintiff had any notice, actual orconstructive, of any litigation that was pending in which her title had beenchallenged or that there were circumstances to show that the Plaintiff couldhave with ordinary care discovered the defect in her title. No issue was framedupon the point and there is absolutely no evidence even that the litigationreferred to was a matter of common knowledge in Gaya. The Plaintiff was anative of Manpur, a suburb of the town of Gaya. The suit was instituted atPatna and not at Gaya and we are told that the zutpeshgi lease was executed bythe Rani in favour of the Plaintiff before any summons had been served uponher. It was, no doubt, for the lower Appellate Court which dealt with facts tosay, having regard to the circumstances of the case whether the Plaintiff hadany constructive notice and whether the defect in the Ranis title was onewhich the Plaintiff could have with ordinary care discovered. It might possiblybe an answer to the claim for damages that the lease was taken as a speculationand that the Plaintiff intended to take the risk of the result of litigation;but such a case would require to be very clearly proved. We have alreadypointed out that the question whether the Plaintiff had any notice of anydefect in the Ranis title or even of any litigation in which the title waschallenged was not raised in the written statement nor in the issues and thereis absolutely no evidence in support of the finding of the learned Judge. Noground was taken in the grounds of appeal to the lower Appellate Court that thePlaintiff had any sort of constructive notice of any defect in the Ranistitle. On the contrary, in the sixth ground of appeal to the lower AppellateCourt the Defendant stated: " The Subordinate Judge was wrong in holdingthat she had no right to grant the patta to the Plaintiff." Under thesecircumstances we think that the learned Judges finding that the defect in theRanis title was one which the Plaintiff could have with ordinary carediscovered cannot be sustained and that he ought not to have decided the caseupon a ground which was not set up in the pleadings, in respect to which noevidence had been adduced, and, which the Plaintiff had no opportunity ofmeeting. We are, accordingly, of opinion that sec. 108, cl. (a), isinapplicable to the present case and that the Defendant is liable for damagesfor the interruption of the Plaintiffs possession under the provisions of sec.108, cl. (c). The question of the amount of damages, however, has not been goneinto by the lower Appellate Court. The case should, therefore, go back to thatCourt for assessment of the amount of damages. It is, accordingly, ordered thatthe decree of the lower Appellate Court, in so far as it directs that thePlaintiff is entitled to a refund of the zurpeshgi money, will stand, and thatthe decree in so far as it disallows damages be set aside and the case remandedto that Court. That Court will assess the amount of damages and pass a decreeaccordingly. The decree of the lower Appellate Court in so far as it holds thatthe Plaintiff must pay the costs of the Court of first instance awarded to BabuChandreswar Prosad will stand. The Respondents will pay 3 gold mohurs as thecosts of this Appeal to the Appellant and the costs of the lower Courts as betweenthe Plaintiff and the Defendant No. 1 will abide the result.

3. The present Respondents having been substituted in theplace of the Rani who died, the decree will of course be against the assets ofthe Rani in their hands. No separate order is necessary to be passed on theapplication of Mayan Godawari Koer.

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Syed Mukhtar Ahmadvs. Ani Sunder Koer (09.05.1913 -CALHC)