The Judgment of the Court was as follows:—

Rankin, J.:— In July 1915 certain proprietors of a business called the “Minerva Library” were in occupation of a shop-room at 54, College Street, Calcutta and by them the Plaintiff was put in possession on his own behalf of the shop and business. It appears that these parties were holding under an unregistered instrument of tenancy which purported to demise the premises for five years ending in December 1916. However, the Plaintiff and his predecessors occupied the premises for the full period of five years, and at the expiry of this period Defendants Nos. 6 to 9, whom I will call the Mondol Defendants, were the landlords. The Plaintiff entered into negotiations with them for a further term and these negotiations resulted in a written instrument, dated 15th January 1917. This the Plaintiff tenders in evidence but it is objected to by Counsel for Defendants Nos. 1 to 5 (whom I will call the Lahiri Defendants) on the ground that it comes within sec. 17 of the Registration Act (XVI of 1908) and is hit by sec. 49. Having regard to the issues in the case and the state of the decisions it seemed to me advisable to reserve the question whether the document is admissible in evidence until the whole case was before me.

Apart from the document there is not on the evidence proof of the terms of the intended tenancy. It is not open to me apart from the document to find any prior or independent oral agreement in January 1917. In my opinion what took place between the Plaintiff and the Mondol Defendants at that time was merely a treaty or negotiation for a further tenancy the terms of which were intended to be reduced into writing and were concluded only in that form. The document tendered purports to be in form a memorandum of agreement but in its operative clauses it uses the language of a present demise. From its terms and from the admitted circumstances I think it clear that it was intended to operate as a present demise to the Plaintiff for five years from 1st January 1917 and I must hold it to be a lease within the meaning of cl. (d) of sec. 17 of the Registration Act. One of its provisions is this:—“And be it known hereby that if the lessors transfer this house by sale before this term of five years then a notice will have to be given to me six months beforehand and the salami money which is paid for a period of five years will have to be returned to me proportionately taking into consideration the number of months before the expiry of which the house is sold.” Considerable time and space might be occupied in setting out the various possible meanings of this clause, but I do not think it can be contended nor was it contended before me, that it prevents the document from being a “lease” for a term exceeding one year. It is therefore within sec. 49 of the Act.

The Plaintiff continued his occupation thereunder without interference or dispute until May of 1919. In that month the Mondol Defendants sold the property to the Lahiri Defendants. The conveyance dated 28th May 1919 is in evidence. The Lahiri Defendants had full notice of the unregistered instrument of 15th January 1917 and of its terms. Neither they nor the Mondol Defendants gave any notice whatsoever to the Plaintiff prior to the transfer, but on the 28th May the Plaintiff was given notice (Ex. No. 1) that the transfer had been made, and on the next day, 29th May 1919, he was given notice to quit by the 30th June on the allegation that he was a monthly tenant (Ex. No. 2). It is clear to me that the advisers of both sets of Defendants were of opinion that the unregistered document of 15th January 1917 was one under which the Plaintiff could maintain no rights. Acting somewhat brutally upon this view they were faced with the question of returning part of the Rs. 500 which the Plaintiff had paid as salami. They solved the difficulty in this way, namely, Rs. 250 were paid by the Mondol Defendants to the Lahiri Defendants on an oral agreement between thorn that the latter would pay to the Plaintiff when he vacated the premises a proportion of the original salami commensurate with the period that should then remain unexpired of the five years. The Plaintiff has alleged that between the two sets of Defendants there was at this time an agreement, of which he was informed, that the Lahiri Defendants would allow him to remain for the rest of the five years. In my opinion there was no such agreement and the Plaintiff was not so informed. The Plaintiff alleges also that the Lahiri Defendants received the sum of Rs. 250 on the footing that the whole of it was to be paid by them to him independently of the date at which he might give up possession. Whether or not this be the Plaintiff's right as between himself and the Mondol Defendants on a true construction of the instrument of 15th January 1917, I am of opinion that no such arrangement was made between the two sets of Defendants at the time of the transfer.

On the 9th June 1919, the Plaintiff in reply to the notice to quit wrote referring to this stipulation for six months' notice and asking for even longer notice. On the same day the Lahiri Defendants brought a suit for ejectment against him in the Small Cause Court, which has no jurisdiction to decree specific performance. The suit was decided on 12th September 1919 and resulted in a decree for ejectment but the Plaintiff was given time by the decree until the 20th May 1920 to vacate the premises. The Plaintiff waited until the 12th May 1920 and then filed the present suit.

The first question I think is one which Mas not argued before me, namely, whether on a true construction of the clause which I have quoted from the document of 15th January 1917 the Plaintiff was entitled to specific performance on the 12th May 1920. The Plaintiff has not at any time been given a notice to vacate in six months. Nor was he given a notice of intention to sell six months before the sale. In September 1919 the Small Cause Court gave him more than six months in which to vacate but this was on the footing that he had no rights under the document of 15th January 1917. The Plaintiff on the 12th May 1920 had had more than six months' notice of the sale. I read the clause in question as one giving to the landlords a right to determine the tenancy. The exercise of such a right is a matter strictissimi juris and though the Lahiri Defendants, have shown every disposition to be as inconsiderate to the Plaintiff as possible and have met with but small success I cannot see that the Plaintiff's tenancy, if he can claim a tenancy under the document, has been validly determined by virtue of the clause.

Coming therefore to the question whether the Plaintiff can get specific performance of the terms of the unregistered document, I find the matter complicated by the state of the pleadings. The Plaintiff pleads “a fresh agreement” without stating that it was in writing. The Lahiri Defendants instead of applying for particulars or saying that they do not admit the alleged agreement and will rely on sec. 49 of the Registration Act, plead that they admit that on 15th January 1917 the Plaintiff in writing entered into an agreement….purporting to create a demise for a period of five years…and so on, setting out their version of the document. On this Plaintiff's Counsel naturally contends that where there is admission there is no need of evidence and that cl. (c) of sec. 49 is thus got over. I cannot give effect to this contention, however, because in the circumstances and taking the written statement as a whole (see para 6 thereof) the Plaintiff's advisers cannot at any lime have been in doubt that these Defendants in this suit as in the Small Cause Court were relying upon the provisions of sec. 49. Although I do not regard them as fit objects of any special sympathy, I would, if necessary, rather allow them to amend than allow the rights of the parties to depend upon the comparative skill of their advisers in the lost art of pleading. In any case cl. (c) of sec. 49 would remain.

In the result therefore and to my regret I must endeavour to apply the Registration Act to this case and must decide whether it is any answer to the Plaintiff. The suit is one for specific performance of an agreement to lease which agreement is by secs. 3 and 17(1)(d) brought within sec. 49. The special feature of the case is that unless the document is admissible in evidence the Plaintiff although he has been in possession cannot and does not pretend to prove the length of time for which he was to hold or the conditions upon which his tenancy was determinable.

Now the Legislature in the Registration Act has made such provision as it was minded to allow for preventing sec. 49 taking effect upon documents which merely create a right to obtain another document as the substantive transfer or upon agreements to lease which are not intended to confer an immediate interest. Moreover oral agreements for leases are allowed by the law. If any such concluded agreement, written or oral is not followed by any more formal or effective transfer, or is only followed by the execution of a document which comes within sec. 49, there would seem to be no difficulty in such statutory provisions as that contained in sec. 107 of the Transfer of Property Act in the way of applying the rule in Walsh v. Lonsdale and Bibi Jawaher Kumari v. Chutterput Singh by granting a decree for specific performance of the original agreement. But a serious difficulty arises if it is said that in cases where there has been entry and possession, the document hit by sec. 49 can be treated as a document of a nature not within the section, or as evidence of an oral agreement to the same effect as its terms. Walsh v. Lonsdale has no bearing on this question. It merely decided that when a valid agreement is proved and possession is shown to have been taken under it and the agreement is such that specific performance can be given in the suit, then the parties will be treated exactly as though the title had been perfected from the commencement. But proper proof of a valid agreement is the very first condition. In the same way I cannot profess to see how the cases on part performance under sec. 4 of the Statute of Frauds—cases of which Maddison v. Alderson is the chief—can have any application under sec. 49 of the Registration Act. The Statute of Frauds makes nothing inadmissible in evidence. It makes no oral agreement and no written agreement invalid as affecting property or otherwise. Its provision is that no party to a contract or sale of lands shall be charged upon—i.e, shall suffer judgment for the enforcement of—such contract unless either at the time of the contract or at any time before suit he or his agent has authenticated by signature a written statement of the terms. A casual letter to a third party written the day before suit may satisfy the statute. The object of the Statute of Frauds is neither revenue nor registration: it is simply to take away temptation to perjury in Courts of Justice by enacting what in a large sense may be called “evidentia rei.” Lord Selborne's reasoning in Maddison v. Alderson may be put in four propositions:—

(1) “The contract is not a nullity, there is nothing in the statute to estop any Court from enquiring into and taking notice of the truth of the facts.”

(2) “When the statute says that no action is to be brought to charge any person on a contract concerning land it has in view the simple case in which he is charged upon the contract only and not that in which there were equities resulting from res gestae subsequent to and arising out of the contract.”

(3) “So long as the connection of these res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some limitation of the scope of the statute.”

(4) “The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract and as sufficient to authorise an enquiry into the terms.”

It may be argued that the second of these four propositions has some analogy to the meaning of the phrase “affecting the property”: but in all other respects the position under sec. 49 of the Registration is as different as possible from that under the Statute of Frauds.

In Kedarnath v. Poorasundari , Fletcher, J., held that notwithstanding secs. 3, 17 and 49 of the Registration Act an unregistered kabuliyat was admissible in evidence for the purpose of proving the oral agreement sought to be specifically enforced. In Sm. Baranashi Dassi v. Papat Velji Rajdoo , Woodroffe, J., put two questions and left both questions open. “It by no means follows that an agreement to lease, that is an obligation to transfer, is a transaction affecting the property. Nor is it necessary to determine whether an unregistered document void as a lease may be used to establish an agreement to lease.” Shortly afterwards the Privy Council in Hemanta Kumari Debi…Defendant, v. Midnapur Zemindari Co.…Plaintiffs,, Ltd. had before them a suit for specific performance of an agreement to grant jote settlement of certain lands. Their Lordships expressly held as I understand the decision that if the agreement in that case had been intended as creating a present and immediate interest in the lands so as to be an “agreement to lease” within sec. 3 and therefore a “lease” within sec. 17(1)(d), the document could not have been received in evidence. I collect from this case the further ruling that the same result would arise in the case of a document falling within sec. 17(1)(b) unless it was saved by one or other of the exceptions mentioned in sub-sec. 2 of sec. 17.

In no one of the three cases already cited had the Plaintiffs been let into possession, but it seems to me that the Privy Council case would exactly cover the case before me unless the fact of the Plaintiff's entry and possession makes a difference in the application of cl. (c) of sec. 49.

What then is the effect of possession under a document hit by sec. 49? Is the document evidence in a suit for specific performance of its provisions? Is it evidence of an oral agreement leading up to it? Can a decree be made for specific performance of its terms?.

In Shyam Kishore v. Umesh Chandra , it was said by Mookerjee, J. “It is well settled, as the result of a long series of decisions in this Court that when in pursuance of an agreement to transfer property the intended transferee has taken possession though the requisite legal documents had not been executed and registered, the position is the same as if the documents had been executed provided specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined…. These decisions are based on the well-known doctrine of equity enunciated in Walsh v. Lonsdale , that under certain circumstances, equity regards that as done which should have been done. The result attained in these cases was reached by the Judicial Committee in the case of Muhammad Musa v. Aghor Kumar by the application of the doctrine of part performance enunciated in Maddison v. Alderson .” The passage cited and other passages in the judgment refer to an “agreement to transfer property” and there is some reference also (p. 77) to “the contract of sale” but I cannot find from the report, which consists only of the judgment, any facts other than these, that on 9th June 1906, the auction-purchaser executed a conveyance of the property to one of the mortgagors, that this conveyance was not registered as required by law, but the original owners (mortgagors) continued in occupation.

On examining the line of decisions referred to, I find that in Bibi Jawaher Kumari v. Chutterput Singh , there was no difficulty in proving the agreement. In 1910, Fletcher, J., followed this case and applied the rule in Walsh v. Lonsdale, to protect Defendants who were in possession under purely verbal agreements. To an objection that Defendants, were in possession under verbal leases; that these were void by sec. 107 of the Transfer of Property Act; he replied that even so they might be specifically enforced as agreements on the analogy of English cases under 8 and 9 Vic c. 106. In Sarat Chandra v. Shyam Chand , an agreement to recognise the Defendant as Plaintiff's tenant at a certain rent was made in writing by way of settling a suit about other property. It was included in the consent decree. Subsequently Plaintiff sued for the rent agreed on. The Court held that the decree must be ignored but that the petition of compromise though as a lease hit by cl. (d) of sec. 17 of the Registration Act was “admissible as indicating the existence of an oral agreement to grant the lease.” In Puchha Lal v. Kunja Behari , the only facts appearing are that an owner of lands executed an unregistered kobala to A who paid the purchase money and entered into possession. The owner in the next year sold the lands to the Plaintiff who knew of the previous transaction. Jenkins. C.J, says: “So we have the position that the Defendant first party was in possession of the lands under a contract of sale” and the rule in Walsh v. Lonsdale was applied.

In a recent case before the Privy Council [Port Canning and Land Improvement Co., Ltd. v. Sm. Katyani Debi ], the Plaintiff sued for enhancement of rent. The Defendants or their predecessors had gone into possession of the lands under a memorandum of agreement and on this account it was held by their Lordships that the document was a lease within sec. 17(1)(d) of the Registration Act. The question in issue was the nature of the tenancy: whether the rent was liable to enhancement or not. The decision as to the document was: “Being unregistered, it is inadmissible in evidence and no effect can be given to it.” The nature of the tenancy was decided on other evidence.

It is certainly true that no question of specific performance arose in that case or was discussed at any stage so far as if appears. But this decision makes it extraordinarily difficult to suppose that possession taken under a document can make any difference to its admissibility.

I come last to the case of Mahomed Musa v. Aghor Kumar Ganguli . In 1873 a suit to enforce a mortgage was compromised on the terms that the encumbered properties should be divided up between the mortgagor and two sets of mortgagees in a certain manner, the mortgagees releasing their security and the mortgagor agreeing to execute deeds of transfer to give effect to the arrangement. A razinama recording the arrangement was filed in Court but was not stamped or registered: the decree of the Court did not recite the document but simply “ordered that the suit be decided in pursuance of the razinama.” No conveyance was made by the mortgagor as promised but by the law of India as it then stood no written conveyance was necessary. The parties for years acted on the compromise and dealt with their own shares thereunder as their own. Thirty or forty years afterwards representatives of the mortgagor sued the representatives of the mortgagees for redemption of the original mortgage. The Defendants were met with an objection that the razinama was not registered and the decree did not recite it. To this they replied that there was an oral agreement. There was on the record ample other evidence of the agreement which in the previous suit had been put before the Court in the form of the razinama. The question being whether an equity to redeem still remained with the Plaintiffs, their Lordships, having given more than one answer in the negative, go on to say that “even although the razinama and the decree taken together were considered to be defective or inchoate as elements making up a final and validly concluded agreement for the extinction of the equity of redemption the actings of the parties have been such as to supply all such defects.” And their Lordships proceed to refer to Maddison v. Alderson and to passages from Bell's commentaries which had been cited by Lord Selborne in that case. It was certainly argued that the razinama could not be put in evidence but this is nowhere upheld in the judgment. In any case the judgment is in no part embarrassed by the contingency that the document could not be looked at and there is no discussion of the 49th section of the Registration Act (VIII of 1871), I am inclined to think that the hypothesis as to the razinama and decree being defective or inchoate had reference to the fact that the arrangement itself provided expressly for a formal transfer and to the contention that a mortgage could not be modified or the equity effectively released save by a formal transfer. The passages from Bell's commentaries cited by Lord Selborne in Maddison v. Alderson were again referred to by their Lordships of the Judicial Committee in Lakshmi Venkayyamma Rao v. Narasimha Appa Rao (12) in similar language. The meaning of “inchoate or incomplete” is made plainer. The words are used as descriptive of a case where a conditional offer made is not shown to have been accepted in terms but performance of the condition is to the knowledge of the party offering made upon the footing of his proposal.

In my opinion the decisions of the Judicial Committee in the case of Hemanta Kumari Debi…Defendant, v. Midnapur Zemindari Co.…Plaintiffs,, Ltd. and Port Canning and Land Improvement Co., Ltd. v. Sm. Katyani Debi make it impossible for me to hold that the agreement in this case can be put in evidence or that its terms can be specifically enforced. If I admit the document at all it seems to me that I would be receiving it as evidence of a transaction affecting the property. If upon its true construction it is meant to take effect as a present demise I cannot treat it as something else or as evidence of a transaction different from this in nature and so avoid the statute. My opinion is that against the prohibition of the statute no estoppel avails and that there is nothing in Walsh v. Lonsdale or the cases under the Statute of Frauds to cover the Plaintiff in this case.

As regards the claim for a refund of the balance of the salami, if I am right as to the agreement which was made between the two sets of Defendants in May 1919, I cannot see that the Plaintiff has any present right on the facts to recover against the Lahiri Defendants. As against the Mondol Defendants I think that the non-registration of the document will not stand in his way in an action for money had and received to his use. The question is whether he is entitled to Rs. 250 as the proportionate part due to him at the time the house was sold or whether on vacating the premises he will become entitled to a refund of a part proportionate to the time by which his occupation will fall short of five years. If the latter be the true position then at the date of this suit he had no cause of action. I think the language of the document of 15th January 1917 is in favour of the former alternative and as between the Plaintiff and the Mondol Defendants I see no reason why his precarious possession maintained in spite of the Lahiri Defendants and after the Mondol Defendants had ceased to be the landlords should be regarded as a reason why the Mondol Defendants can retain the salami which was apportionable from the beginning. I give judgment against the Mondol Defendants for Rs. 250 with one-third of the costs of suit. I must leave them to take such steps as they may be advised to adjust matters with the Lahiri Defendants. In the result the Lahiri Defendants are successful and I cannot say that there is sufficient judicial reason for refusing to them their costs.

Messrs Dittt and Sen, Solicitors for the Plaintiff.

Messrs Dey and Kshetrya. Solicitors for the Defendants.

M.N.K