Norman Macleod, Kt., C.J.
1. In 1915 the defendant in this suit was erecting a building at Sutar Chawl. The Presidency Post Master was anxious to secure premises in the building for a Post Office and entered into correspondence with the defendant.
2. On the 1st ' February 1915 the defendant wrote to the Presidency Post Master as follows :-
With reference to the Post Office Superintendent's interview with me I have arranged with Messrs. Mistry and Bhedwar, Architects, to have an accommodation for a Post Office at Sutar Chawl measuring about 650 Sq. Yds. and shall let it to you on a lease for ten years on the following conditions:
1. The rent for the place would be Rs. 175 per mensem.
2. The counters and a shelf would be supplied by me.
3. The electric installation to be made by me, but will be maintained thereafter by you.
The place would be ready for occupation by the 1st of April 1915.
3. That was clearly an offer to let the building to the Presidency Post Master for ten years at the rent of Rs. 175 a month.
4. On the 13th of February 1915 the Presidency Post Master replied:-
In continuation of my letter J Musjid 2 dated 6-2-15, I have the honour to say that the Post Master General, Bombay, has accepted the proposal. I shall, therefore, be much obliged if you will kindly do the needful now with a view to enable me to move the present J Musjid Post Office into your new building in the Sutar Chawl with effect from 1-4-1915. The Post Master General has further desired me to insert the optional clause, in the lease, i. e., giving the Post Office the option to renew the lease for another five years, Kindly acknowledge receipt of this letter.
5. Clearly that was an acceptance of the terms offered by the defendant on the 1st of February 1915. But in the last clause of the letter the Presidency Post Master wrote :-
The Post Master General has further desired me to insert the optional clause in the lease, i.e., giving the Post Office the option to renew the lease for another five years. Kindly acknowledge receipt of this letter.
6. That was a counter-offer which would have no effect on the acceptance of the offer made by the defendant unless in its turn it was accepted, the proposal being that when the lease came to be settled in proper form it should contain a clause giving the lessee an option to renew for five years at the end of the tenure.
7. On the 16th of February 1915 the defendant's estate manager wrote:-
With reference to your letter No. Jumma Masjid 2 dated the 13th instant, I am making the necessary arrangements.
8. Thereafter the Presidency Post Master went into possession, paid rent at the rate of Rs. 175 a month, and nothing was done towards getting a proper lease executed until in 1917 the Presidency Post Master was given notice to quit. Then correspondence arose and eventually this suit was filed by the Secretary of State for India praying for a specific performance of the agreement made in February 1915.
9. It was argued in the lower Court that this lease ought to have been registered. But it is now conceded by the appellant that the decision in Hemanta Kumari Debi v. Midnapur Zemindari Company had, as far as these Courts are concerned, settled the question. Therefore, these documents did not require registration as they did not constitute a present demise.
10. The learned Judge in the Court below considered that the counter-offer in the plaintiff's letter of the 13th of February 1915 was accepted by the Manager's letter of the 16th of February 1915. We are unable to agree with that view. We think that the defendant's offer for a lease for ten years was accepted and specific performance of that agreement can be decreed. But it cannot be said that the defendant ever accepted the suggestion made by the Presidency Post Master that the lease should be so drawn that it should not only contain the terms which appeared in the letter of the 1st of February 1915 but should also contain a new and very important clause, namely, that the lessee at the end of the term should Be entitled to have the option to renew the lease for another five years.
11. In the first place the letter of the Kith of February 1915 is written by the defendant's estate manager. He would not have power, as far as we are aware, to accept the counter-offer made by the Presidency Post Master. But it does not appear that he did accept that counter-offer. It was only his business to consider as estate manager the particular part of it which asked the defendant to do the needful with a view to enable the Presidency Post Master to move into the premises on the 1st of April 1915; and it was with reference to that passage in the letter that he replied that ho was making the necessary arrangements. It is impossible to read into that letter any acceptance of the suggestion made by the Presidency Post Master that the lease was to be so drawn as to give the Post Master an option to renew the lease for another five years.
12. In my opinion the appeal should be allowed to that extent and the decree should be amended by directing that these words 'and together with the option to the plaintiff or the Presidency Post Master Bombay on his behalf to renew the said lease for a further term of five years after the expiration of the said term of ten years' be deleted.
13. The appellant has succeeded to a certain extent. What he wanted us to do was to set aside the decree and dismiss the plaintiff's suit entirely. In that he has failed, and, therefore, he must pay half the respondent's costs.