Ernest Edward Fletcher, J.

1. This is a suit in ejectment. The plaintiff seeks torecover possession of certain premises known as Nos. 4, 5, and 26 Ram MohunMullicks Street, and No. 12, Ram Mohun Mullicks Lane in Calcutta.

2. The plaintiff derives his title under an indenture oflease dated the 6th of June 1908 and made between one Nundo Lall Mullick of theone part and the plaintiff of the other part which comprises amongst otherproperties, the property sought to be recovered in this suit.

3. The property comprised in the lease, is a bazar known asKansari Patti. The defendant raised the following defences to the suit.(a)...that by the custom of the putty, the tenants hold on a permanent tenure,(b) that the plaintiff by the conduct of his predecessors-in-title is stoppedfrom recovering the property and (c) with regard to the three properties Nos. 4and 5 Ram Mohun Mullicks Street and No. 12, Ram Mohun Mullicks Lane, thedefendant is in possession under verbal agreements for leases which have beenpart performed, and that as the defendant could enforce specific performance ofthose agreements against the plaintiff, he is not entitled to recover thoseproperties in this suit.

4. The only evidence that has been given in support of theplaintiffs case is the proof of the lease to the plaintiff, the service of thenotice to quit being admitted. With respect to the first defence raised by thedefendant, it is necessary to say very little. The evidence in support of thealleged custom falls far short of what is required to establish a custom atlaw.

5. The patti appears to have been in existence somewhereabout forty years; and although it appears that as a matter of practice, thelandlord was accustomed to make re-settlement with the old tenants, yet thereare instances going back to the year 1876 of express lease in writing beinggranted to the tenants, and also cases of tenants being dispossessed on grounds,other than those of non-payment of rent, which facts clearly negative thecustom alleged by the defendant. The first defence raised by the defendant,therefore, fails. The second defence is based on the principles laid down bythe House of Lords in Ramsden v. Dyson (1866) L. R. 1 H. L. 129; 12 Jur. (N.S.) 506; 14 W. R. 926, and other authorities which have followed and approvedof that decision.

6. It appears that the house No. 12, Ram Mohun MullicksLane, was erected by one Kailas Chunder Banerjee many years ago, and,therefore, it is said, it must be assumed that Kailas Chunder thought at thetime of such erection, that his tenure was a permanent one, and that theplaintiffs predecessors-in-title must have known of the belief of Kailas Chunder,as to his being entitled to a permanent tenure, and have stood by and letKailas Chunder lay out his money on the footing of that belief. A similarargument is raised with regard to No. 26, Ram Mohun Mullicks Street, the houseupon which was erected about 25 years ago by one Nundo Lall Ghose. Theplaintiff on the 13th of November, 1905, purchased No. 12, Ram Mohun MullicksLane, and also purchased No. 26 Ram Mohun Mullicks Street, on the 1st ofMarch, 1904.

7. But in order to raise a case of estoppel so as to bringthe case within the principles laid down in Ramsden v. Dyson (1866) L. R. 1 H.L. 129; 12 Jur. (N. S.) 506; 14 W. R. 926, it is necessary that there should besome evidence as to the belief and knowledge of the tenant and the landlord, atthe time the buildings were erected. No such evidence having been given, thesecond defence raised, will not, therefore, avail the defendant in the presentsuit.

8. Lastly, coming to the third ground of defence, thedefendant alleges that he is in possession under agreements, of which he couldobtain a decree of specific performance against the plaintiff, and that,therefore, having regard to the decision of Walsh v. Lonsdale (1882) 21 Ch. D.9, 52 L.J. Ch. 264; L. T. 858; 31 W. R. 109, the plaintiff is not entitled toeject him during the currency of the agreements. The plaintiff, on the otherhand, says that having regard to the provisions of section 107 of the Transferof Property Act, the principles laid down by Jessel M.R. in Walsh v. Lonsdale(1882) 21 Ch. D. 9, 52 L.J. Ch. 264; L. T. 858; 31 W. R. 109, are notapplicable to India. It was decided by Mookerjee, J., in Bibi Jawahir Kumari v.Chatterput Singh 2 C. L. J. 343, that the principle laid down in Walsh v.Lonsdale (1882) 21 Ch. D. 9, 52 L.J. Ch. 264; L. T. 858; 31 W. R. 109, appliesto India, and in that judgment of my learned brother fully concur.

9. Has the defendant, therefore, an agreement for a lease ofthe premises or any part thereof which could be specifically enforced

10. It appears in the year 1903, that the plaintiff paid asalami to Nundo Lall Mullick of Rs. 330, and it was agreed that the defendantshould occupy the premises No. 4, Ram Mohun Muliicks Lane, until 1911, at therent of Rs. 16-8 per month. Similarly, in 1906, the defendant paid to NundoLall, a salami of Rs. 425, and an agreement was entered into, that he shouldoccupy the premises up to 1916, at the rent of Rs. 17 per month; and in 1905,the defendant paid to Nundo Lall, a salami of Rs. 430 with respect to No. 12,Ram Mohun Muliicks Lane, and it was agreed that he should occupy the premisesup to 1915. In all these three cases the defendant has been in possession, andhas paid the rent to the landlord for the time being; and the terms upon whichthe defendant holds are certain and well-defined. With respect to No. 26. RamMohun Muliicks Street, the defendant alleges, that his predecessor-in-titleNundo Lall Ghose paid a salami and took an agreement from the year 1902 up to1912. The defendant, however, has given no evidence in this instance of thepayment of the salami by or the terms of agreement with Nundo Lall Ghose. Butwith regard to the other three instances, defendants evidence isuncontradicted as to payment of the salami and the rent. But then it is said bythe plaintiffs counsel, that the defendant entered into possession underverbal lease and not under agreements for leases, and, therefore, there are noagreements of which specific performance can be enforced.

11. But even, assuming that what was intended between theparties were verbal leases, it does not in my judgment follow, that because theleases are void under the provisions of the Transfer of Property Act as notbeing in writing and registered, that they cannot be enforced as agreements forleases.

12. There are numerous authorities in England to show, thatwhere a document is void as a lease for not complying with the terms of theReal Property Amendment Act 1845, (8 & 9 Vict. C. 106) it may neverthelessbe specifically enforced as an agreement for a lease, Parker v. Tarwell (1858)2 De. G. & J. 559; 27 L.J. Ch. 812, 6 W. R. 608 and Couen v. Phillips(1863) 33 Beav. 18; 9 Jur. (n. s.) 657; 8 L. T. 622, 11 W. R. 706.

13. In India a perfect valid agreement for a lease, may bemade by parol, and, therefore, the verbal arrangement though void as leases,would be capable of being enforced as agreements for leases.

14. The defendant would, therefore, have been entitled tospecifically enforce against Nundo Lall Mullick, the three agreements withrespect to Nos. 4 and 5 Ram Mohun Muliicks Street, and No. 12 Ram MohunMuliicks Lane, the more specially so as all of these agreements have been partperformed. The counsel for the plaintiff next argued, that even if that be sothe plaintiff being a purchaser for value without notice, is not bound by theseagreements. The plaintiff has elected not to give evidence in the present case.There is, therefore, no evidence as to what was the actual state of theplaintiffs knowledge as to the terms of the tenants agreements.

15. The plaintiff must or ought to have known that thedefendant was in possession. It must be taken that the plaintiff had fullknowledge of the rights of the tenants, Taylor v. Stibbert (1794) 2 Ves. Jr.437; 2 R. R. 278.

16. In these circumstances, I am of opinion, that thedefendant is in possession of Nos. 4 & 5 Ram Mohum Mullicks Street and No.12 Ram Mohun Mullicks Lane, under agreements that could be specificallyenforced against the plaintiff, and that during the currency of thoseagreements, provided the defendant pays the rent and complies with the terms ofthe tenancies, the plaintiff is not entitled to recover the possession thereof.With regard to No. 26 Ram Mohun Mullicks Street, the defendant has failed toprove that he is in possession thereof under an agreement which could bespecifically enforced. The plaintiff is, therefore, entitled to recoverpossession of these premises together with mesne profits as from the expirationof the notice to quit, up to actually delivery of possession thereof. Suchmesne profits being assessed at the rate of the rent formerly paid by thedefendant.

17. There only remains the question of the costs of thissuit to be dealt with. As both parties have partially succeeded, the properorder, I think, would be to order both parties to pay their own costs of thissuit.

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Singheeram Poddar vs.Bhagbat Chander Nundi (12.01.1910 -CALHC)