SULEMAN HAJI AHMED UMAR Vs. PNPATELL

JUDGEMENT

(1.) Plaintiff has filed this suit to recover from the defendant a sum of Rs. 5,269-12-0 or such other sum as may be fixed by the Court by way of damages for breach of an alleged agreement to take a lease of the premises in suit for a period of five years at the rate of Rs. 325 per month commencing from March 1, 1924. Plaintiff and his father carried on business in Bombay in partnership in the name of Haji Ahmed Umar and Son up to June 1924, when the plaintiff's father died, leaving the plaintiff who was his only child as his sole heir and legal representative. During his lifetime plaintiff's father had purchased a property at Warden Road, Bombay, known as Ahmed Mansion, the conveyance of which was taken in the name of the plaintiff and his father as joint tenants. After his father's death the plaintiff became and still is the sole owner of the said property. On February 4 or 5, 1924, plaintiff says that he had a conversation on the premises with the defendant about letting to the defendant a flat either on the first floor or the ground floor of Ahmed Mansion on a lease for five years with an option to the defendant to continue the tenancy for a further period of ten years. Plaintiff stated in his evidence that the rent for either of the two floors was to be Rs. 325 per month, but it appears that the rent for the ground floor was to be Rs. 350 per month. A type-written agreement was shown to the defendant, and the terms mentioned therein were to be embodied in a pucca lease. Defendant denies that he met the plaintiff either on February 4 or 5, and says that he saw the plaintiff and his father at their pedhi at Khadak on February 6, 1924, and that at that interview the period of lease and the amount of the rent were agreed to, but that it was not then determined whether he should be given a flat on the first floor or on the ground floor. Defendant adds that the plaintiff's father and the plaintiff agreed to place one piece of expanded metal on the doorway. This interview was never put to the plaintiff in his cross- examination. It is true that in para. 2 of the plaint the date of the agreement is given as February 6, but in para. 2 of his written statement defendant does not admit the allegations contained in para. 2 of the plaint, save and except that he wrote a letter to the firm consisting of father and son on February 6, 1924 It is really immaterial whether the first interview took place on February 4 or 5 as the plaintiff alleges, or on February 6, as the defendant alleges. The parties are agreed that the conversation that they had was before the defendant wrote the letter to the plaintiff's firm on February 6, 1924. That letter refers to the conversation which the defendant had, and it states that the defendant has agreed to take a flat either on the first floor at Rs. 325 per month or on the ground floor at Rs. 350 per month for five years commencing from March 1, 1924. Defendant further stated in the letter that he had agreed to take either of the two floors on the "conditions" mentioned in the letter. The letter ends by saying that the plaintiff's firm should consider the letter as an agreement. Plaintiff in his evidence stated that he had a conversation with his father on receipt of the letter, and they decided between themselves on February 7 to let a flat on the first floor to the defendant. On the same day or on the next day plaintiff met defendant and communicated the decision to him to give him the flat on the first floor. Defendant agreed to take the first floor flat on hire at Rs. 325 per month for five years commencing from March 1, 1924. According to the plaintiff defendant asked him to prepare a pucca lease which plaintiff got prepared at his pedhi and it was signed by the parties on February 8, 1924. Defendant, however, says that after February 6 he met the plaintiff for the first time on the 8 when the lease was already ready engrossed and was signed. It was then lodged for registration. Plaintiff admitted execution before the Sub-Registrar of Assurances, but the defendant failed to do so. He entered into possession a day or two before March 1, 1924, and remained in occupation till about the end of August 1925, when he vacated, alleging that he was only a monthly tenant, and that he had given the proper and requisite notice to vacate. There was some correspondence between the parties in August-September 1925, and the plaintiff filed this suit in the beginning of January 1927 to recover damages for breach of the agreement on the part of the defendant to take a lease of the first floor for five years at Rs. 325 per month. Defendant relies on the letter which he wrote on February 6, 1924, as an agreement between the parties constituting a present demise between the parties, and the question is whether it is admissible in evidence for want of registration, as under Section 2(7) of the Indian Registration Act "lease" includes an agreement for lease. According to the defendant the letter falls under Secs.17 and 49 of the Indian Registration Act and is inadmissible for want of registration. It is admitted that the premises which were actually let to the defendant were the first floor flat, and that the same was for the first time agreed to be let only on February 7 or 8, 1924. The letter is dated February 6 and in that letter the defendant agrees to take a flat either on the first floor, or a flat on the ground floor. It is clear, therefore, that on February 6 plaintiff had not decided which flat he would let to the defendant, and, in my opinion, the letter cannot create a present demise on February 6 of either the one or the other flat, when the option to give one of the two had not then been exercised by the plaintiff and his father. The option was exercised and the decision communicated to the defendant on February 7 or 8, so that there was no complete and concluded agreement on February 6. The letter is only a record of the conversation between the parties, and not quite a correct record either. The words in the letter asking the plaintiff's firm to treat the letter as an agreement cannot make it an agreement in the absence of confirmation by the lessor. Nor does the fact that either o:f the two flats was available for letting on February 6 serve to constitute a present demise on that day of the first floor flat. Counsel for the defendant mentioned the case of Ramjoo Mahomed V/s. Haridas Mullick (1925) I.L.R. 52 Cal. 695, but in that case as in many other cases there were two letters, one by the lessee agreeing to take the premises, and the other by the lessor confirming the agreement, and it was held that the terms of the agreement as mentioned in the two letters created an immediate interest in the property let. It may be here mentioned that the mere fact that the holding is to commence at some future date after the agreement does not make any difference, and even an option of one of two dates from which the holding is to commence is immaterial. The premises, however, which are agreed to be let must not be left indeterminate as was done by the letter of February 6. Moreover, the defendant stated in his letter that certain "conditions" mentioned therein had already been agreed to between him and the plaintiff and his father. Plaintiff, however, stated that he did not agree to put two pieces of expanded metal as mentioned in the letter. It is true that the plaintiff or his firm did not reply denying that condition, but the lease was prepared and signed within a couple of days after February 6, and the plaintiff stated that no such condition was embodied therein. Though the letter mentions two pieces of expanded metal the defendant stated that only one piece was put up before he went into possession. Whether it was one piece or two pieces, it is not alleged anywhere that this was done between February 6 and 8, and if it was done at some later date it does not follow that the plaintiff agreed to that condition on February 6. I merely refer to this condition in order to show that even on that additional ground there was no concluded and final agreement on February 6.

(2.) It has been held in Sultanali V/s. Tyeb (1929) 32 Bom. L.R. 188, and in various other cases, that the test to be applied in construing a document like the letter in question is to gather from it the intention of the parties and to see whether it contains words or terms which can be construed as a present demise. It has also been held that words like "agree to let" and "agree to take" are words of present demise. (See Bearpark V/s. Hutchinson (1830) 7 Bing. 178, 182). But the words "I agree to take" used by the intending lessee in the letter of February 6 cannot create a present demise of or interest in either of the two floors by the lessor, in the absence of any confirmation by the lessor; and, further, as I have stated before, it is common ground that the premises which were ultimately demised were not fixed and determined till after February 6. In my opinion the letter of February 6 cannot be construed as a present demise of the flat on the first floor of Ahmed Mansion and therefore does not require registration. (Sec Hemanta Kumari Debi V/s. Midnapur Zamindari Company (1919) L.R. 46 I.A. 240 The letter is, therefore, admissible in evidence.

(3.) The suit is one for damages for breach of the agreement and is filed within time. I will deal with the admission of the lease in evidence later. The agreement between the parties was orally arrived at. though only partially, either on February 4 or 5 or 6, but in any event before the letter of the 6 was written, and was not completed till either February 7 or 8, when it was finally decided to let the flat on the first floor to the defendant and the defendant agreed to take it. Counsel for the defendant argued that the plaintiff cannot rely on any oral agreement when the terms of the agreement are reduced to writing by virtue of Section 91 of the Indian Evidence Act. But all the terms of the agreement were admittedly not reduced to writing in the letter of February 6. As to the lease the defendant cannot be allowed to contend that it is inadmissible for want of registration on his part, and at the same time argue that the plaintiff cannot rely on any oral agreement because the terms have been reduced to writing in the form of a lease to which ho objects.