BIJOYA KANTA LAHIRI CHOWDHURY Vs. KAILASH CHANDRA BHOUMIK

JUDGEMENT

(1.) This is a second appeal arising out of a suit for specific performance of an agreement for the grant of a lease. The suit has had a long history. Specific performance was granted by the decree of the trial Court, dated 26th April 1911. On first appeal that decree was reversed by a decree, dated 5th March 1912, the Court holding that the agreement was incomplete, inasmuch as it did not fix the date from which the lease should commence, and further holding that the plaintiffs had failed to prove that they had tendered the balance of the premium within the period stipulated. The plaintiffs preferred a second appeal to the High Court (No. 1183 of 1912) which came before Mookerjee and Roe JJ. By a judgment, dated 13th May 1915, those learned Judges held that it was plain, in view of the provisions of Section 110 of the Transfer of Property Act. that the intention of the parties must have been, in the absence of indication to the contrary, that the lease should take effect from the date of the execution of the instrument. On the question of tender, the learned Judges held that, no time having been fixed for payment of the balance of the premium, the plaintiffs were at liberty to make, and on the facts found had made, their tender within a reasonable time. The result was that the decree of the lower Appellate Court was set aside, and the suit was remanded to that Court in order that the appeal thereto might be re-heard on the other points which had not been dealt with. The appeal has accordingly been re-heard by the Second Additional District Judge of Mymensingh who has made a decree, dated 29th November 1916, confirming, with some modifications, the decree of the trial Court for specific performance. From that decision the present appeal has been taken, by the defendant No. 1.

(2.) The appellant is the owner of a fractional share of the property to which the suit relates. The case for the plaintiffs is that he contracted orally to give them a putni lease of the share. A close approach to an agreement to that effect is admitted, but it has been contended in defence that, for various reasons other than those already dealt with by the High Court in the judgment of May 1915, the agreement was incomplete and incapable of specific performance.

(3.) Some of the questions in controversy in the Court below have been finally disposed of in the judgment appealed from, and I shall confine myself to the matters discussed in the arguments before us.