The main legal point established in the judgment is that a tenant is liable for damages under Section 108(m) of the Transfer of Property Act if the destruction of the premises is caused by the default of the tenant's servants.

John Wallis, C.J.

1. This is an appeal by the defendant from the judgment of Kumaraswami Sastri, J, in a suit brought by a landlord against a tenant for damages for the destruction of the demised house by fire. The learned Judge has found that the fire was occasioned by the negligence of the defendant. The destruction of a building owing to the negligence of the tenant is treated in English Law as permissive waste for which a tenant for life or for a term is liable and a tenant at will not liable while the case of a tenant from year to year is doubtful. These distinctions are not recognized by the Transfer of Property Act. Section 108(m) requires the tenant to restore the property in as good a condition as it was when he was put into possession, subject only to the changes caused by reasonable wear and tear or irresistible force and to allow the lessor and his agents at all reasonable times to enter upon and inspect the condition thereof and give or leave notice of any defect in such condition, and when such defect has been caused by any act or default on the part of the lessee his servants or agents, he is bound to make it good within 3 months, after such notice has been given or left. In the present case the plaintiff by Exhibit C called on the defendant to Pay Rs. 15,000 damages, while the defendant sent a counter notice Exhibit D claiming to determine the tenancy under Section 108(e) in consequence of the destruction of the premises by fire, as he was entitled to do under that clause, if the injury was not occasioned " by the wrongful act or default of the lessee ". He also sent a reply to Exhibit C repudiating his liability to pay damages. The action of the defendant in electing to determine the tenancy under Section 108(e) amounts to a waiver of the notice calling on him to restore the property required by Section 108(m) and no question of the absence of such notice has been taken. Indeed the case seems to have been conducted without reference to Section 108(m) which however enbodies the rule of law to be applied. To make the defendant liable under Section 108(m) the defect in this case, the destruction of the premises by fire, must have been caused by "any act or default on the part of the lessee, his servants or agents" and all we have to do is to apply this test to determine the defendants liability. Such actions appear to have been infrequent and there are not many cases for our guidance. On the facts the learned Judge has found that the fire was caused by the defendants negligence and that question has been re-argued before us. The admitted facts, as found by the learned Judge, are that the defendant took the house in 1916 and a Muhammadan Dubash of his was allowed to live in the upper part with his three wives and two servants. In October 1917 piece-goods were stored in a room opening into the kudam and the goods were insured, but the policy did not take effect until the first premium was paid in December. Late in December the Muhammadan and his family left the house, which was then put in charge of a watchman, some ten days before the fire occurred. The watchman swears that, according to his usual custom, he lit a hanging lamp in the hall where the goods were stored, locked up the premises and took the key to the defendants house in the neighbourhood and went away to Triplicane for his evening meal intending to return and sleep there and that on his return he found the premises destroyed by fire. The lamp was a cheap Japanese hanging lamp with a central draught like the one shown to us, and was hanging in the hall near the stair-case leading to the floor above.

2. In the draughty conditions of houses in India even the best lamps flare up and in this case the situation of the lamp was exceptionally draughty, having regard to the fact that the room was quite open on the east side and to nearness of the stair-case when there would have often been a strong draught. In these circumstances a cheap lamp like this i