PROMATHA NATH MITTRA Vs. GOSTHA BEHARI SEN

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated 16 August 1928 of the High Court of Judicature at Fort William in Bengal, which affirmed a judgment and decree dated 13 February 1926 of the Additional District Judge of Alipore, who had reversed the judgment and decree dated 21 August 1924 of the Subordinate Judge of Alipore.

(2.) The facts of the case may be very shortly stated. The suit relates to three plots of land of the total area of 6 bighas, situated not far from Calcutta. The appellants, who are known as the Mittras of Shambazar, and are hereafter referred to as Mittras, have a 12 anna undivided share in these lands. The defendants respondents, hereinafter referred to as Boses own a 4 anna share. The appearing respondent, Gostha Behari Sen (hereinafter called the respondent), was desirous of obtaining a lease of the whole lands, and commenced negotiations for this purpose in the beginning of 1919 by sounding the appellants through their representative as to their willingness to lease their interests in the lands. Nothing came of these primary negotiations, but in January 1920, the appellant again called at the house of the Mittras. According to his own evidence, he was then informed that settlement could only be made with the consent of those who represented the Boses' four anna share. At the same time the Mittras indicated the terms upon which they for their part would be disposed to agree to such a lease. Within eight or ten days after this the respondent, according to his own evidence, saw the representatives of the Boses, who told him that they had given their consent to the proposed lease and had instructed the manager of the Mittras accordingly. He then called on the Mittras on 13 January, and the result of his interview with them was a document in the following terms: " A be-meadi (without any fixed period) settlement with Gosto Behari Sen in respect of the jama (tenancy) at Bonehughli formerly held by Jogendra Nath Bagchi and at present in the khas possession of the estate is approved on the following terms: (1) A total sum of Rs. 300 should be paid as Selami (bonus) for this jama; (2) the annual rent is fixed at Rs. 60; (3) the lessee would not be entitled to alienate this jama at any time on any ground whatever; if he does, the jama would become khas; (4) if the land is acquired by Government, the proprietors would get a moiety of the compensation money; (5) the lessee would not be authorized to make a permanent or Kaemi settlement with, or to grant a long lease to, any person. 28 September 1926. " (Sd.) P. Mitra. (Sd.) B. B. Mitra. " 13-1-20."

(3.) It will be observed that this document was not signed by the respondent and that it deals with the whole lands, of which it was known to the parties at the time that the Mittras only held a 12 annas undivided share. Yet, on the terms of this document alone and without reference to the evidence, which gives no support to his conclusion, the District Judge has held that it was a "final contract" and that the Mittras thereby undertook a binding obligation on behalf of themselves and of the other cosharers that the respondent was to obtain a lease of the whole lands on the terms briefly set forth in the document itself. Their Lordships are clearly of opinion that, looking to the state of mind of both parties at the time, such an obligation cannot be implied. On the one hand, the Mittras had clearly stated from the first that they would only grant a lease to the respondent if the consent of the other cosharers was obtained, and, on the other hand, the respondent was at the time under the belief that he had already secured the assent of those cosharers to the proposed lease. It is incredible under these circumstances that the appellants should either have been asked or agreed to bind themselves to an unconditional contract of lease of lands which in part did not belong to them. On the other hand, the document is entirely consistent with the attitude of the appellants that they were adjusting the terms of the proposed lease on the footing that the other cosharers in the lands had already consented. or at all events were prepared to consent, to a settlement on similar terms. Moreover, it was throughout admittedly in the contemplation of both parties that a formal kabuliyat would be drawn up as between the respondents and all the cosharers in which the full terms of the proposed lease would be embodied. In fact, an oral agreement to this effect was entered into at the same interview. Thus it would be more proper to describe the document as heads of a proposed agreement than as a final contract, as it has been interpreted by the District Judge.