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Simon Reuben Vs. Haji Shaikh Mahomed Shustary - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 130 of 1921
Judge
Reported in(1922)24BOMLR465; 67Ind.Cas.433
AppellantSimon Reuben
RespondentHaji Shaikh Mahomed Shustary
DispositionAppeal allowed
Excerpt:
.....of the agreement-agreement not enforceable owing to uncertainty of terms-meaning of the words 'subject to' in a document.;defendants nos. 1 and 2 entered into a writing with the plaintiff to let the third floor of their building. the writing was in the following terms:-'we agree to rent to mr. haji shaikh mahomed shustary the top floor of our building under construction at plot no. 3 ballard estate for a period of five years and five years' option at a monthly rent of rs. 1,500 only from the date of the completion of the same subject to the conditions and entering into a regular lease, a deposit of three months' rent amounting to rs. 4,500 only is paid on signing of this contract.' defendants nos. 1 and 2 subsequently sold their interest in the plot and building to defendant..........be considered as a concluded agreement. first it would be impossible for the parties to draw up a formal lease in accordance with this document because its terms are too uncertain to be reduced to a formal document, and, secondly, it contains the words 'subject to the conditions and entering into a regular lease', which made the 'entering into a regular lease' a condition precedent to the parties coming to a definite agreement. the learned judge has considered that the words 'subject to conditions' means 'usual conditions', namely, conditions which have to be incorporated in a formal document when prepared by a solicitor. but the word ' usual' is not in the document, and, even if it were, lit would only amount to this, that when a formal document came to be prepared, the draftsman could.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff filed this suit for specific performance of an alleged agreement with the first and second defendants to let the third floor of a building on the Ballard Estate. The agreement which he asked the Court to specifically perform is at page 1, Part III, and runs as follows:-

We agree to rent to Mr. Haji Shaikh Mahomed Shustary the top floor of our building under construction at Plot No 3 Ballard Estate for a period of five years and five years option at a monthly rent of Rs. 1500 only from the date of the completion of the same subject to the conditions and entering into a regular lease. A deposit of three months' rent amounting to Rs. 4,500 only is paid on signing of this contract.

2. The learned Judge has passed a decree in favour of the plaintiff, directing the defendants to specifically perform the agreement and execute in favour of the plaintiff a lease of the third floor of the building situated on the Ballard Estate for a term of five years from the date of the completion of the said building, with an option to the plaintiff for a further period of five years at a monthly rent of Rs. 1500 such lease to contain the usual covenants.

3. The defendants have appealed.

4. We are of opinion that the document Exh. A could not be considered as a concluded agreement. First it would be impossible for the parties to draw up a formal lease in accordance with this document because its terms are too uncertain to be reduced to a formal document, and, secondly, it contains the words 'subject to the conditions and entering into a regular lease', which made the 'entering into a regular lease' a condition precedent to the parties coming to a definite agreement. The learned Judge has considered that the words 'subject to conditions' means 'usual conditions', namely, conditions which have to be incorporated in a formal document when prepared by a solicitor. But the word ' usual' is not in the document, and, even if it were, lit would only amount to this, that when a formal document came to be prepared, the draftsman could enter in the document the usual covenants which are to be found in leases of office buildings in Bombay, and it would be open to the other side either to alter or add to those conditions, and it would be only when the draft had been finally agreed to that the terms of the lease could be ascertained. But even if the nature of the conditions had been defined, and no room for further discussion was eft, the words 'subject to entering into a regular lease' would remain to be construed, and it is difficult to see how one could avoid bringing the case within the authority of Govind v. Hirachand. : AIR1919Bom154 . In Winn v. Bull (1877) 7 Ch. D. 29 Lloyd v. Nowell [1895] 2 Ch. 744 and Watson v. McAllum (1902) 87 L.T. 547 it was held that the effect of the words 'subject to' was to introduce a condition or proviso. It seems obvious to me, therefore, that this is a document which the Court cannot possibly direct to be specifically performed. It was merely the result of preliminary negotiations which defined a portion of the terms to appear in the lease as eventually settled, while it left a great many of the terms to be agreed upon thereafter; so that the final agreement between the parties depended on a regular lease which was to be executed. The appeal, therefore, must be allowed and the suit dismissed with costs throughout.

5. With regard to the deposit the defendants can apply to the Court of first instance under Section 144, Civil Procedure Code. The deposit can be retained for a fortnight after the decree of this Court is sealed, in order to enable them to make that application. If the application is not made, the deposit will have to be returned.


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