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Judgment
Jackson, J.—The main point argued in revision is that the breach of the river bank and consequent flood which diminished counter-petitioner''s crop was not an act of God as contemplated in the lease. The cases referred to by petitioner afford a definition of act of God which can fairly be applied to this Tamil lease. An extraordinary flood is such a flood as no reasonable person would anticipate. The Queen v. Commissioners of Sewers for Essex 14 Q.B. 561; Nitro Phosphate and Odam''s Chemical Manure Co. v. London and St. Katharine Docks Co. [1879] 9 Ch. D. 503, is to the same effect.
The usual criterion in this Presidency to decide whether a flood is one which can reasonably be anticipated or not is whether it is one such as to cause breaches. The agriculturist may reasonably assume that the irrigation works which control the flow of water will be properly maintained and if they are swept away he may reasonably claim to have been taken by surprise. Therefore the finding of the learned Subordinate Judge that this was an act of God is correct.
The second point that the custom of the village referred to in the lease was not Varam hardly arises in revision. Presumably it was Varam and if the petitioner was possessed of knowledge to the contrary he should not have kept silent in the lower Court. The petition is dismissed with costs. The memorandum of objections is not pressed and is dismissed with costs.