PROMOTHONATH MITTRA Vs. GOSTHA BEHARI SEN

JUDGEMENT

(1.) The facts of this case are that the plaintiff wanted a lease of 6 bighas of land 12 annas of which belonged to defendants 1 to 7 whom I shall call the Mitras and four annas belonged to defendants 8 & 9 who represent some minors whom we may call the Boses. The plaintiff negotiated with the Mitras. They agreed to give him a bemeadi lease for a selami of Rs. 300 and annual rent of Rs. 60. It was apparently assumed that the four annas cosharers would join in the lease. In pursuance of this agreement the plaintiff paid Rs. 300 as selami to the Mitras and executed a registered kabuliyat which had been drawn up in their cutchery. They agreed to give him an amalnama signed by the 16 annas cosharers. Defendants 8 and 9 however refused to join in the lease so the amalnama was never given. The Mitras offered to pay back to the plaintiff his Rs. 300 but he would not take it and insisted on getting a lease. As defendants 8 and 9 would not join in granting a lease he filed this suit against all the co- sharers, praying for an amalnama, possession of the land and mesne profits. The defence of the Mitras was that the settlement was conditional on the four annas sharers agreeing to it. Defendants 8 and 9 denied that they ever made any agreement with the plaintiff. The first Court held that defendants 8 and 9 never agreed to grant a lease and that there was only a conditional contract by the 12 annas maliks to settle the land with the plaintiff provided that the other co-sharers agreed. He held that the contract failed because the other co-sharers never agreed. It was suggested in the lower Court that the plaintiff might get an amalnama and possession from the 12 annas sharers only. The Court of first instance refused this on the ground that this was never in the contemplation of any party and that a partial settlement would lead only to complications.

(2.) On appeal to the District Judge it was held that though the plaintiff was not entitled to a lease from the 16 annas co-sharers he was entitled to a lease from the 12 annas cosharers in respect of their share. The order of the lower appellate Court was that the plaintiff be declared to be a lessee of the plaint lands in terms of the draft kabuliyat so far as the 12 annas share of the Mitras was concerned and that he should get possession of 12 annas share of the land jointly with the defendants 8 and 9. Defendants 1 to 7 were ordered to refund to the plaintiff 1/4 of Rs. 300 selami which they had received. The lower appellate Court also ordered an enquiry to be made as regards the amount of mesne-profits to be paid to the plaintiff. Defendants 1 and 7 have appealed and their main ground of appeal is that the plaintiffs suit was a suit for specific performance of a contract and that a decree for partial performance such as has been given by the lower Court could not legally be given under Secs.14, 15 and 16, Specific Relief Act. It is pointed out that the agreement if any, was an agreement to grant a lease by the 16 annas cosharers and not by the 12 annas cosharers. It is argued that the lower appellate Court has made a new contract for the plaintiff and also that it has allowed specific performance of a portion of a contract which was one and indivisible. It was also argued that the contract was conditional and that it came to an end when the condition became impossible of performance and that the plaintiff as a matter of fact had never prayed in his plaint for performance of a portion of the contract namely 12 annas share of it.

(3.) If the suit is regarded as a suit against the 16 annas maliks for a joint amalnama then it is a suit for specific performance. But in form it is rather a suit for declaration of title and for possession. In the plaint nothing was said about specific performance of a coatract. The plaintiff alleged that his kabuliyat had been accepted and he claimed only an amalnama, possession and mesne profits. If it is a, suit for specific performance it must come under either of Secs.14, 15 and 16, Specific Relief Act. Section 14 applies when the portion of the contract which cannot be performed bears so small a proportion to the whole that the deficiency is trivial. That is not the case here. A fourth part of a contract is not an insignificant portion of the whole. Section 16 only applies when a contract can be divided into independent parts one of which can be enforced without regard to the other. That section does not apply here for a contract about a 12 annas undivided share cannot be regarded as an independent portion of a contract relating to 16 annas of the suit bond. The only section which might apply is Section 15. Section 15 applies if one party is unable to perform a considerable portion of his contract but the other party consents to accept performance of such portion as is possible of performance and is willing to for go all compensation with regard to the test of it. That section would apply here if the plaintiff were willing to take a lease from the 12 annas maliks and gave up his claim against the four annas maliks and also gave up all claim to compensation with regard to the four annas. But that was not the plaintiffs case and that is not the relief which has been given to him. He has been declared to be a lessee of only the 12 annas cosharers of the land but not without compensation for the deficiency; for defendants 1 to 7 have been ordered to refund a quarter of the selami to him.