Authored By : Lancelot Sanderson, J.G. Wooddroffe

Lancelot Sanderson, C.J.

1. This is an appeal by the Plaintiff against the judgmentof Chaudhuri, J., whereby he dismissed the suit. The suit was for a declarationthat the Plaintiff is a tenant of the shop room of No. 6/2, Lindsay Street,Calcutta, at the monthly rental of Rs. 150 plus the occupiers share of theMunicipal rates and taxes for four years certain from the 1st April 1914 withan option of a further period of four years and that she is not liable to heejected from the said premises during the said period; there was a furtherclaim that the Defendant Papat Velji Rajdev should be restrained from executingan order for delivery of possession made by the Court of Small Causes on the12th January 1918 : damages to the extent of Rs. 1,500 were claimed against allthe Defendants.

2. The plaint contained an allegation that in March 1914 itwas agreed between the Plaintiff and the Defendants Karat Kumari and H.K. Silthat the Plaintiff should occupy the said shop for four years certain and withan option for a further period of four years as mentioned above, and it wasfurther alleged that the Plaintiff was assured that she would be allowed tooccupy the said shop loom at the same rent for 16 years.

3. It was further alleged that it was agreed that a formallease would be executed whenever required by the Defendants Sarat Kumari andH.K. Sil at any time during the said period of tenancy.

4. The Defendants Nos. 2 and 3 denied the alleged agreementand alleged that the Plaintiff was merely a monthly tenant.

5. The first Defendant was a lessee of the whole house undera lease granted by the Defendants Nos. 2 and 3, and it was alleged that theseDefendants had given notice to the Plaintiff to payment to the first Defendantfrom the 1st of October 1916.

6. On the 12th January 1918 the first Defendant obtained anorder in the Small Cause Court against the Plaintiff in this suit for vacationof the premises by the 12th February 1918, and this suit was filed on the 11thFebruary 1918.

7. The Plaintiff had been tenant of the shop in question formany years, it was said since the year 1885 and she had been carrying on ajewellery business, therein under the name of Shambhu and grandsons. She wasassisted in her business by her grandsons Haridas Mitter and F.C. Mitter.

8. The evidence of F.C. Mitter was to the effect that therent was formerly Rs. 85 and that in 1908 it was raised to Rs. 150 : it wasalleged that an assurance was then given to the Plaintiff that she would beallowed to enjoy the property for 15 or 16 years without any furtherenhancement during that period.

9. I think that the allegation in para. 2 of the plaintwhich seems to suggest that the arrangement as to the 15 or 16 years was madeat the interview in March 1914 is obviously a mistake : not only because of theevidence in the case, but also because the arrangement is referred to in thePlaintiffs letter of the 27th March 1911, which both sides agree was writtenbefore the interview which took place a day or two after that letter.

10. The learned Judge, however, seems to have laidconsiderable stress upon the difference between F.C. Mitters evidence in thisrespect and the statement in the plaint.

11. It seems to me that F.C. Mitters evidence is inaccordance with the above-mentioned letter, written before the interview, andis continued by it.

12. On the 14th March 1914 the Defendant H.K. Sil wrote aletter to the Plaintiff in the following terms:--

Calcutta 14th March 1914.

Messrs. Shambhu and Grandson.

6/2, Lindsay Street.

Dear Sirs,

Re : 6/2, Lindsay Street

Perhaps you have come to know that I have got the possessionof the above premises. Accordingly you are to pay me rent, instead of ShaikMahomed Safi regularly within the 5th day of every month. I shall be glad ifyou enter into a lease with me from the 1st day of April 1914. The lease shouldbe at least for 3 years (three years) certain.

Yours faithfully,

H.K. Sil

13. On the 27th March 1914 the Plaintiff sent a reply asfollows:--

Calcutta, 27th March 1914.

To

Babu Harendra Krishna Sil,

83, Upper Chitpore Road,

Calcutta.

Dear Sir,

Re : 6/2, Lindsay Street.

We beg to acknowledge receipt of your letter of the 14thinstant and in reply we beg to say that we are extremely glad to note that youhave taken khas possession of the premises. We are your oldest tenants andshall therefore be happy always to hold our above shop room which is no doubtseparate and separately numbered and to continue our tenancy directly underyou. It is needless to say that we shall always be regular in payment of ourrent to you every month. We are quite agreeable to and gladly accept andacquiesce in your proposal of a lease from the first of next month with thisaddition only that the same should be for four years certain with option foranother term of four years under the same terms and conditions and at the samerate of rent as at present, namely, Rs. 150 (rupees one hundred and fifty) onlyrent per month besides occupiers share of taxes. This will no doubt set ourmind at rest for some time at least on the score of our tenancy under the presentterm and condition.

We hope and consider the above as yucca to be acted upon asdesired by you but if at any time hereafter you think it necessary to haveformal lease in writing it may be drawn up on the above lines with other usualterms as are generally put in etc., and we shall always be ready to execute thesame.

We may remind you that when the last enhancement was madefrom Rs. 85 (rupees eighty-five.) only to Rs. 150 (rupees one hundred andfifty) only more than 75 per cent assurance was given to us by you that noenhancement will be made for the next 15 or 16 years.

We are, Dear Sir,

Yours faithfully,

Shambhu and Grandson.

14. From these letters it appears that the Defendant H.K.Sil had got possession of the premises; that the Plaintiff was to pay rent tohim instead of M. Safi, to whom the whole of the premises had been leased; andthat H.K. Sil was desirous that the Plaintiff should enter into a lease whichshould be for at least three years certain.

15. It further appears that the Plaintiff was agreeable andaccepted the proposal of H.K. Sil as to a lease, with the addition that thelease should be for four years certain with the option of another term of fouryears.

16. The last paragraph but one of the letter of 27th March1914 goes to show that the Plaintiff at that time would have been satisfiedwith this letter as a record of the arrangement which she proposed butexpressed herself willing to execute a lease if H.K. Sil at any time thought itnecessary to have a formal lease.

17. Both sides agree that a day or two, or two or three daysafter that letter, H.K. Sil sent his Sircar for the Plaintiffs grandson F.C.Mitter, who thereupon went to see H.K. Sil and an interview took place.

18. And one of the main questions in this case is what tookplace at that interview. The learned Judge has accepted the Defendant H.K.Sils evidence as to this matter.

19. Before considering the evidence, it is to he noted thatbefore the interview both parties were anxious to have a more definite arrangement.The Defendant H.K. Sil prepared a lease for at least three years; the Plaintiffwanted one for four years and an option for a further period of four years.

20. The Plaintiff would naturally be anxious to have heroccupation secured, and the Defendant was anxious that a lease of not less thanthree years should be entered into. The probability therefore is that unlessthere was some difficulty which could not be overcome, some arrangement as to alease would be arrived at when the interview took place.

21. F.C. Mitters evidence was to the effect that at theinterview H.K. Sil wished to enhance the rent; when the Defendant was asked incross-examination if he had asked at the interview for higher rent than Rs. 100his answer was "yes, I might have, I dont remember" from which Ithink it may be taken that F.C. Mitters evidence on that point is correct.

22. F.C. Mitter then said that he protested against theproponed enhancement and reminded H.K. Sil of his promise not to enhance therent any further after the last enhancement, made in 1908 when he raised therent to Rs. 100. This is in accordance with the letter of the 27th March 1914written only a few days before the interview.

23. H.K. Sil then agreed to the rent remaining at Rs. 150;both sides agreed to this.

24. F.C. Mitter, according to his evidence, then wanted alease to be executed : the word "he" in line 33 at page 13 of thepaper-book, it was agreed at the hearing of the appeal, should be read as" we," i.e., meaning the Plaintiff and her grandsons, who werecarrying on the business.

25. F.C. Mitter wanted the lease to be registered so thatalthough the Plaintiff, when the letter of the 27th March 1914 was written, wascontent not to have a formal lease, but to rely on the record contained in theletter. F.C. Mitter according to his evidence changed his position at theinterview and wanted a lease.

27. Thereupon, according to F.C. Mitters evidence, theDefendant. H.K. Sil said that as he was going to be in khas possession of theproperty and there were women interested in the property there was no necessityto go to the worry and expense of a lease : I gather from his evidence thatF.C. Mitter did not press for a lease but was satisfied with H.K. Silsassurance that they had nothing to fear from outsiders, and that the terms asto a four years lease and an option for a further term of four years mentionedin the Plaintiffs letter of 27th March 1914 were agreed to.

28. The Defendants Nos. 2 and 3 in September 1914 granted alease of the whole of the premises to one S.N. Bose and on the 25th SeptemberH.K. Sil wrote to the Plaintiff as follows.

Calcutta, 20th September 1914.

Messrs. Shambhu and Grandson.

Dear sirs,

Please take notice that I have leased premises; Nos. 6, 6A,6B, Lindsay Street, to Babu Surendra Nath Bose of 17, Brindaban Pals Lane from1st instant for a term of 15 year: all rents payable from that date should bepaid to him.

Yours truly,

Horendra Krishna Sil.

29. F.C. Mitters evidence was to the effect that thisletter was not received until the 12th October 1914 and that on the followingday S.N. Bose came to collect the rent.

30. F.C. Mitter said he told S.N. Bose of the arrangementunder which the Plaintiff was occupying the shop and showed him the correspondenceand told him that if S.N. Bose accepted that arrangement, the Plaintiff wouldbe willing to pay the rent to him, that S.N. Bose said he would make enquiriesand let the Plaintiff know : that on the following day S.N. Bose came again andgave the Plaintiff the letter, dated the 14th October 1914, which is asfollows:--

Calcutta, 14th October 1914.

Messrs. Shambhu and Grandson.

Dear Sirs,

I agree to the terms of the lease you have with Mr. H.K.Sil. Please therefore pay my Bill of Rs. 150 as you can have no more objection.

Yours truly,

Surendra Nath Bose.

31. S.N. Bose was called as a witness and his evidencecorroborates the evidence of F.C. Mitter, but the learned Judge has come to theconclusion that it was not of much value. It appears that S.N. Bose, in hisevidence, said that when he went for the rent, "they," by which Isuppose he meant the Plaintiff or some one on her behalf, showed him a letterfrom H.K. Sil authorizing the Plaintiff to hold the shop for four years certainand four years optional. This was clearly incorrect, for there was no suchletter, and consequently the learned Judge concluded that his evidence was notof much value. With great respect I cannot go so far as that. It is obviousthat S.N. Bose was wrong when he said he had seen the letter from H.K. Sil, butI think this may have been a mistake : if he had been shown the correspondencein 1914, as F.C. Mitter says he was, he may have forgotten the details of thecorrespondence and the writers of the respective letters, though he may haveremembered the substance of the arrangement--he was giving his evidence in1918, and the occurrence took place in 1914. It is clear that he had not beencoached for his evidence, for if he had been informed of the Plaintiffs caseor if he had been shown the correspondence shortly before giving his evidence,he would not have made such an obvious mis-statement. Two points in connectionwith S.N. Boses evidence remain to be mentioned.

32. Firstly.--S.N. Bose said he went to see J.K. Misra, theDefendants Manager about the matter.

33. J.K. Misra was called on behalf of the Defendant andwhen asked about the visit which S.N. Bose had deposed to, he said he did notremember, and had not the faintest recollection; so that S.N. Boses evidence onthat point remains uncontradicted.

34. Secondly.--There is the letter of the 14th October 1914in which S.N. Bose said he agreed to the terms of the lease which the Plaintiffhad with H.K. Sil.

35. It is to be noted he referred in the letter to a "lease,"and it is obvious from the letter that something at all events must haveoccurred between the Plaintiff and S.N. Bose which led him to believe that thePlaintiff had a lease or something in the nature of a lease from H.K. Sil,something at all events more than a mere monthly tenancy, which the Defendantsnow allege was all that existed at that time. To meet the difficulty created bythis letter, the learned Counsel for the Defendants No. 2 and 3 suggested inthe Court of Appeal that the letter might not be genuine, or might not havebeen written at the time, at which it was supposed to have been written.

36. This suggestion was not raised in the Court of firstinstance, or put to S.N. Bose when he was in the witness box, and it cannot beaccepted in the Court of Appeal.

37. These two facts are material corroboration of thePlaintiffs case, and in my judgment the evidence of S.N. Bose should not bedisregarded.

38. The first witness called on behalf of the Defendants wasU.C. Ghosh, the Dewan of H.K. Sil; he used 10 keep the accounts and Cash Bookof H.K. Sil, who admitted that he was a faithful servant of 30 years standingand a truthful man.

39. F.C. Mitter said that U.C. Ghosh was present at theinterview in March 1914. The Defendant H.K. Sil could not remember who werepresent at the interview.

40. U.C. Ghosh gave evidence to the effect that he waspresent at the interview and in answer to questions put by the learned Counselfor H.K. Sil he corroborated the Plaintiffs case.

41. The questions and answers were as follows:--

Q.--Do you know if there was an agreement with thePlaintiff. Baranashi Dassi, in the suit to grant a lease of No. 6/2, LindsayStreet for four years certain and four years optional from 1914

A.--When we took the house into khas possession we passed aletter requesting Shambhu and Grandsons to come to a definite arrangement withus.

Q.--Was any definite arrangement come to, namely, thearrangement for a lease for four years certain and four years optional from1914

A.--Yes, verbal.

42. This was obviously an unexpected answer and the learnedCounsel for H.K. Sil asked to be allowed to cross-examine his witness on theground that he was hostile : the learned Judge disallowed this, and in myjudgment, quite rightly. There was no material before the learned Judge tojustify him in allowing cross-examination.

43. This witness also confirmed to some extent F.C. Mittersevidence as to the arrangement in 1908, in that he said the sum and substanceof it was that "they were to continue at a rental of Rs. 150 as theywere."

44. The only other witness as to the interview was theDefendant H.K. Sil.

45. In his examination-in-chief in alluding to theinterview, he said "he (i.e., F.C. Mitter) said if I was willing to give alease of the room for four years certain and four years optional then theywould be able to take the lease. I said that cannot be. That is all. Fakir andhis brother perhaps said they could not enter into a three years lease and thenegotiations fell through."

46. He was then asked who were present at the meeting, hesaid he did not remember, he did not remember if U.C. Ghosh was present. Hedenied specifically the arrangement about the four years lease, and thealleged arrangement made in 1908.

47. He did not remember if Fakir had come to him about thelease to S.N. Bose, or whether the Plaintiff made any complaint after the leaseto the first Defendant.

48. In cross-examination he was asked if he ever intended togive to the Plaintiff a lease; in the first instance he denied that, and it wasonly when the Court drew his attention to the fact that in one of the lettershe had proposed a three years lease that he said at that time he did intendgiving them a lease.

49. He then said his intention was to give a lease for notmore than three years, and then, when his letter of March 14th, 1914 wasproduced to him, which showed his intention was to give a lease for not lessthan three years, he had no answer to give.

50. In further cross-examination he said he did not rememberwhether it was proposed at the interview that the Plaintiff should take a fouryears lease; he did not remember the proposal for four years certain and fouryears optional.

51. He did not remember whether there was any discussion asto the Plaintiff being willing to execute a, formal lease in his favour, and itwas suggested by him that the only thing discussed at the interview was rent.

52. I should find it very difficult to accept theDefendants evidence, having regard to the nature of it, and his repeatedanswers to the effect that he did not remember things, which one would think hemust have remembered, even if it stood alone and uncontradicted; but in thiscase the weight of the verbal evidence is greatly in favour of the Plaintiffscase, and, as already pointed out, it was confirmed in a material extent by oneof the Defendants witnesses, who was admitted to be an honest and reliableman. It was, however, urged that the case set up by the Plaintiff in this suithad not been raised in the proceedings in the Small Cause Court, and even whenthe Plaintiff brought a suit against Papat Velji Rajdev, in the High Court in1917, she did not rely upon the case which she now sets up.

53. Great reliance was placed upon paras. 3 and 4 of theplaint in the 1917 suit which are set out in the learned Judges judgment.

54. In reply to this the learned Counsel for the Plaintiffurged that there was nothing more than an agreement for a lease made betweenthe Plaintiff and the Defendants Nos. 2 and 3 and that if it had been pleadedin the Small Cause Court it would have been no defence to the suit forejectment by Papat Velji Rajdev, and as to the High Court suit in 1917, hepointed out that it was brought against the first Defendant only that in the1917 suit specific performance of the agreement could not have been claimed;and that indeed it was not desired then to claim specific performance, as H.K.Sil was not then unfriendly : It was urged that the object of the suit was onlyto stop the Small Cause Court proceedings and that when it was found that the1917 suit was not sufficient for that purpose and that the Defendant H.K. Silhad become unfriendly, the only course was to withdraw the 1917 suit and toinstitute the present suit.

55. It was further argued that para. 6 of the WrittenStatement of Baranashi Dassi in the Small Cause Court, dated 9th June 1917,referred to the agreement now relied upon.

56. Without deciding the points and assuming, for the sakeof argument, that it might have been expected that the agreement now reliedupon would have been more specifically referred to in the previous proceedings,the question remains, is this sufficient to counteract the verbal evidencegiven at the trial, which in my judgment is strongly in favour of thePlaintiffs case

57. In my judgment it is not. I have much reluctance ininterfering with the decision upon a question of fact of a learned Judge whohas seen the witnesses, specially when such question depends largely upon theverbal evidence; in this case, however, practically all the verbal evidenceseems to me to be in favour of the Plaintiffs case (such evidence includingone of the Defendants witnesses who was present at the interview) with theexception of the evidence of the Defendant : and his evidence, as alreadymentioned, upon the face of it is such that it seems to me unreliable andtherefore with much respect to the learned Judges decision, I am unable toagree with it, and in my judgment

58. It has been proved that there was a verbal agreement fora lease.

59. I have had the advantage of reading the judgment aboutto be delivered by my learned brother, and I agree that there was not anexpress agreement that a formal lease should be executed. But in my judgmentthere was an agreement that the monthly tenancy should cease, and that thereshould be a tenancy for four years certain which was to begin on April 1st,1911 with the option of a further term of four years as stated in thePlaintiffs letter of the 27th March 1914. This involved an implied agreement todo everything necessary to make the agreement effective in law which wouldinclude a right in the Plaintiff to call for a formal lease.

60. A regards the other points which were raised in theappeal I agree with my learned brothers conclusions and in my judgment thisappeal should be allowed with the costs of the suit and appeal, and a decreeshould be made in terms of paras. (a) and (b) of the prayer.

J.G. Wooddroffe, J.

61. As regards the facts I have nothing to add. Acceptingthe evidence given for the Plaintiff on the facts, the first question is as tothe character of the transaction of which F.C. Hitter speaks as havingtranspired with the Defendant H.K. Sil. Was it an agreement to lease or a leasethat is a present demise. In the latter case it could only be a demise tooperate in future, for the Plaintiff was already a tenant at the time of theinterview on 28th or 29th March, and was entitled to retain possession untilthe end of March, The negotiations in writing commence with H.K. Sils letterof the 14th March asking that the Defendant should enter into a lease with himfrom the 1st April for at least three years. The Plaintiff replied that she waswilling to take a lease but for four years with four years option.

62. The rent was to be Rs. 150 as heretofore. There thenfollows a passage which if it stood alone and had not been followed by thealleged verbal agreement, might be relied on to show that there was presentdemise and not an agreement for a demise. For the letter runs "we hope andconsider that the above was pucca to be acted upon as desired by you but if atany time hereafter you think it necessary to have a formal agreement in writingit may be drawn up on the above lines with usual terms as are generally put inthem and we shall always be ready to execute the same." The matter,however, does not rest there. At the interview between Mitter and Sil aquestion however arose about raising the rent and the Defendant Sil havingagreed not to raise it. Muter (apparently for his security) wanted a formallease to be executed. The position then taken was different from that taken inthe preceding letter. Sil said there was no need for a lease as the propertywould be in hints possession and the parties concerned were ladies. On thisMitter did not press the matter. This is not the same thing as an agreementthat there should be no formal lease. The statement in the third paragraph ofthe plaint that it was agreed that a formal lease should be executed whenever requiredby the parties during the period of tenancy is incorrect if it be read asmeaning that there was an express agreement to this effect but in law that mustbe taken to have been the agreement between the parties. For if, as I hold,there was no mutual agreement which positively excluded the right to call for aformal lease, and if there was an agreement that the Plaintiff should have thepremises on the terms stated and if the law requires as it does, a document andregistration then it will also on these facts imply an agreement to doeverything which is necessary to make the agreement arrived at in facteffective in law. In my opinion the evidence establishes not an actual demisebut an oral agreement to lease.

63. The next question is then whether there can be an oralagreement to lease. It has been so held. Sec. 107 of the Transfer of PropertyAct refers to leases, that is, actual transfers of property and not toagreements to lease. Under the Registration Act "lease" includes"agreement to lease."

64. It is not necessary to discuss the law as toregistration of written agreements for lease or written and unregisteredleases, for the agreement before us was a verbal one. It is enough to say thatsec. 49 of the Registration Act only provides that no unregistered andregistrable document shall affect any immoveable property comprised therein orbe received as evidence of any transaction affecting such property. What isprecluded in either case is the affecting of the property.

65. It by no means follows that an agreement to lease, thatis, an obligation to transfer, is a transaction affecting the property.However, I need not discuss what, having regard to the facts and to my findingthat an oral agreement for a lease is valid, is unnecessary. Nor is itnecessary to determine whether an unregistered document void as a lease may beused to establish an agreement to lease. For the agreement in suit was not, inmy opinion, a demise.

66. The next question is as to the effect of possessionhaving been held under the agreement for a lease, for, I hold that possessionon and after the 1st April was under the agreement for a lease to which I havereferred. It has been held that when in pursuance of an agreement for a leasethe intended lessee has taken possession though the requisite document has notbeen executed, the position is the same as if the document had been executedprovided specific performance can be obtained between the same parties in thesame Court and at the same time as the subsequent legal question falls to bedetermined.

67. The question then is might specific performance havebeen obtained Nothing is suggested against this except that a suit for suchrelief would be barred. This however, has not been made out. No time was fixedas the date for performance and it cannot be said that any question of refusalarose until after the appearance of the Defendant No. 1 in October 1916. Beforethat the Plaintiff had in fact been paying rent and holding possession underthe agreement for a lease. But then if is said the third party rights of theDefendant Papat Velji cannot be affected. But this Defendant is a man who hassubsequently taken a lease of the house from the landlord against, whom thePlaintiff has established his agreement. If he alleges that he is a transfereefor value without notice there must be an issue as to and proof of thatallegation. There is in fact none. The Plaintiff was in possession and primafacie this Defendant must be taken to have had knowledge of it and of herrights. I agree therefore that the appeal should be allowed and the decreeappealed from reversed and a decree made in terms of prayers (a) and (b) of thePlaint. The Appellant is entitled to her costs of the suit and appeal.

.

Baranashi Dassi vs. Papat Velji Rajdev and Ors. (14.05.1919- CALHC)