BIJOYA KANTA LAHIRY CHOWDHURY Vs. KAILASH CHANDRA BHOWMIK

JUDGEMENT

(1.) This is a second appear arising out of a suit for specifies 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 farther 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 (See Kailas Candra Bhaumick v. Bijoy Kanta Lahiri 50 Ind. Cas. 177-Ed.)), 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 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. 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 patni lease of the share. A close approach to an agreement to that effect is admitted, bat it has bean 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 is incapable of specific performance.

(2.) 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 argument before us.

(3.) As the suit is based on an oral agreement, no question arises as to the construction of any document. The terms of the agreement and the intention of the parties are questions of fact depending on oral evidence and unless the Judge in the Court below has misapplied any principle of law to the facts which he has found, we cannot in second appeal quarrel with his conclusions. Moreover, the Judge is not bound by the language in which ha states the terms of the agreement, as gathered by him from witnesses speaking to their recollection of conversations, in the same way in which the parties would be bound by the language of a written document to which they had subscribed their names. The statement of the terms by the Judge can only be regarded as approximating more or less closely to the words which the parties actually used at the time, and the Judge may look at the evidence as a whole for the purpose of elucidating the intention of the parties on any particular point.