JUDGMENT : KNOX, J.:— The parties to this second appeal are one Bolton, who was plaintiff in the suit, out of which this appeal arises, and Mrs. Donald, defendant. On the 27th July, 1896, the plaintiff leased to the defendant under a lease for ten years, duly stamped and registered, a house in Mussoorie. In 1902, the roof of one of the rooms in the house collapsed and some railings fell into disrepair. In 1903, the roofs of other rooms in the house were blown off by a hurricane. The defendant gave the plaintiff notice to execute the necessary repairs. He denied his liability to do so. Thereupon the lessee herself carried out the repairs at her own expense and withheld the amount she had expended from the amount of the rent due on the lease. The present suit is by the landlord to recover the rent so withheld. The Court of first instance decreed, the suit, but in appeal the suit was dismissed by the learned District Judge. The plaintiff comes here in second appeal and the question which we have to decide is whether having regard to the contract between the parties, the respondent was entitled to deduct from the rent due by her the expenses of repairs referred to above. We may mention that no local usage is set up or proved. The result is that the case is to be decided on the terms of the contract and with reference to the provision contained in section 108 of the Transfer of Property Act. The contract, which is contained in a document drawn up in formal terms, contains a clause imposing upon the lessee the liability to keep the premises in good and substantial repair. It contains no express covenant whereby the landlord bound himself to make any repairs or to keep the house fit for habita tion. The contract, which is contained in a document drawn up in formal terms, contains a clause imposing upon the lessee the liability to keep the premises in good and substantial repair. It contains no express covenant whereby the landlord bound himself to make any repairs or to keep the house fit for habita tion. The learned Judge of the lower appellate Court has relied upon the terms of a letter, dated the 2nd of January, 1903, from the plaintiff to the defendant, which contains the following passage:— “When a house is rented on a repairing lease, the lessee is the person that any mishap to the building is at the risk of the lessee (sic) except damage from an earthquake and the like.” The learned Judge considers this to be a clear admission of liability on the part of the landlord to execute repairs made necessary by hurricane, earthquake or the like. We cannot so read it. Putting it at the highest, all that this letter shows is that the parties understood that the repairing clause of the lease did not impose upon the tenant a liability to execute structural repairs rendered necessary by any extraordi nary cause such as earthquake and the like. But it falls far short of an admission by the lessor that he was under any liability to execute such repairs. It is true that under clause (c) of section 108 of the Transfer of Property Act the lessee might probably have been within her rights, if she had elected to avoid the lease. But under clause (f) of the same section she could only deduct the expense of repairs executed by her, if the landlord was bound to execute those repairs and neglected to do so. The learned Judge also relied upon the fact that in previous years the landlord had, notwithstanding the repairing clause in the lease, borne the cost of certain repairs. In the case of the present repairs, however, he had expressly denied his liability to execute them, and this being so, the defendant cannot rely upon his former conduct as an estoppel or as relieving her from the onus of proving the landlord's liability to execute such repairs. We decree the appeal, set aside the decree, of the lower appellate Court and restore that of the Court of first instance. We decree the appeal, set aside the decree, of the lower appellate Court and restore that of the Court of first instance. But having regard to the circumstances disclosed by the evidence, we direct that the parties bear their own casts here and in the lower Courts.