AMEER ALI Vs. YAKUB ALI KHAN

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against a judgment of Mr. Justice Coxe in a suit for rent.

(2.) The plaintiff sues to recover rent from the defendant. In his plaint, he states that the defendant had on the 6th of July 1898 executed a kabuliyat which was not registered and never came into operation. He claims rent at the rate of Rs. 4. It is urged before us that as the kabulayat was not registered and consequently never came into operation under Section 107 of the Transfer of Property Act, no oral evidence could be given to show that the rent was fixed at Rs. 4. This contention is clearly unfounded. Section 92 of the Evidence Act, on which reliance is placed, is of no assistance to the appellant. It has been repeatedly laid down in this Court, as is clear from the case of Banka Behary Christian v. Rai Chandra Pal (1909) 14 C.W.N. 141 and the earlier decisions mentioned there, that a tenancy can" be proved without proving the lease, if there be one. This is in accord with what is the settled law in England. Thus it was held in De Medina v. Poison (1815) Holt N.P.47 that where a rent is mentioned in the lease or agreement, such rent will be the measure of damages, though the lease be void by the Statute of Frauds. In our opinion, oral evidence was admissible to prove the rent which was agreed upon by the parties and that the suit has been rightly decreed.

(3.) The decree of Mr. Justice Coxe will, therefore, be confirmed with costs. Jenkins, C.J.