Ghose and Gordon, JJ.
1. This appeal arises out of a suit for rent. It appears that the defendants father obtained a putni lease from the plaintiff, on the 26th Assin 1286 at a jama of Rs. 1,501. The plaintiff, however, states in his plaint that subsequently the defendants, upon a false representation that the gross rental of the property had decreased, obtained a letter from him, the plaintiff, reducing the jama by Rs. 100 a year, on the 18th Jeyt 1296, corresponding to the 31st May 1889; but that they did not execute afresh kabuliyat agreeing to pay the reduced jama. The plaintiff adds that the said letter, granting an abatement of the jama, was obtained by fraud and without any consideration; and that, being an unregistered document, it is inoperative according to law. He accordingly claims rent from 1297 to 1300, at the full rate, namely Rs. 1,501, plus cesses, etc.
2. The defence of the defendants is that the abatement of rent by Rs. 100 a year was not obtained by any misrepresentation of facts; but that there were good grounds for such abatement being allowed, and that the letter of the 18th Jeyt 1296 did not in law require registration.
3. The Court below has held that the letter in question is evidence of a substituted contract, and that it required registration; and that, because it was not registered, it is not operative in law. The District Judge has accordingly given the plaintiff a decree at the full rate of Rs. 1,501 a year from a certain point of time mentioned in his judgment, the time when he has held the defendants had notice that the plaintiff' meant to adhere to the original rate of rent as contained in the putni pottah of 1286.
4. Against this decree the defendants have appealed to this Court.
5. It appears to us that if the fact of the abatement was a matter in issue between the parties, and the success of the case set up by the defendants n depended upon the production and proof of the letter of the 18th Jeyt 1'296, then no doubt the question whether it required registration would arise; but it seems to be clear that there was no such issue between the parties in the Court below. That an abatement was actually made in the jama, and the letter in question given, the plaintiff admits in the plaint; and we find upon a reference to his plaint in a previous suit between the parties, bearing date the 13th September 1890, that he admitted there also in distinct terms that he had granted an abatement of rent to the defendants, to the extent of Rs. 100 a year, from the year 1296, and that from that year the defendants were bound to pay to the plaintiff rent at the rate of Rs. 1,401 a year. Indeed, the fact of the abatement having been allowed to the defendants was conceded on all hands; and it was not therefore essential for the success of the defendants' case that they should have produced the letter granting the abatement and to have proved the same. No doubt, if this letter was all the evidence in support of the position, that abatement to the extent of Rs. 100 a year had been allowed by the plaintiff, then no doubt the defendants could not succeed in their defence unless they produced and proved the letter itself, and then no doubt also the question of registration would be important. But that is not the case here.
6. The plaintiff, as has already been mentioned, sought to avoid the effect of the abatement that he had allowed by alleging that it had been obtained by the defendants by means of fraud and upon misrepresentation of facts, and that it was without any consideration. Both these points were found against the plaintiff by the Court below; and no contention has been raised before us on that score by the learned vakil for the respondent; and we think, we may therefore take it that there was no misrepresentation at all on the part of the defendants when they obtained the abatement of rent, and that there was good and valid consideration for such abatement. The learned vakil for the respondent has, however, referred us to Section 92 of the Evidence Act, and to Section 107 Sec. 107:---A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.All other leases of (sic)inmoveable property may be made either by an instrument or by oral agreement, of the Transfer of Property Act, and has contended that the original lease of the year 1286 could not be varied by any oral agreement, and that the agreement on the part of the plaintiff to allow an abatement of rent must be regarded as a lease within the meaning of Section 105 of the Transfer of Property Act, and as such, requiring to be reduced to writing and to be registered. With regard to the contention based upon Section 92 of the Evidence Act, all that we need say is, that the defendants do not in this case seek to prove any oral agreement between the parties. The agreement that had been come to is admitted by the plaintiff himself, and, therefore, it seems to be obvious that Section 92 of the Evidence Act does not operate as a bar to the plea raised by the defendants.
7. Then as regards the contention based upon Section 107 of the Transfer of Property Act, it seems to us that it has no application to the present case; for the agreement allowing the abatement does not operate as a lease. No doubt it purports to vary to some extent one of the terms of the lease; but that is all. It seems to us, therefore, that it was not absolutely necessary that the agreement should have been reduced to writing or registered.
8. The view that we adopt in this case finds support from the several cases referred to us in the course of the argument, namely, the cases of Burjorji Kurseilji Panthaki v. Muncherji Kuverji I.L.R. 5 Bom. 143 Chedambaram Chetty v. Karunalyavalanyapuly Taver 3 Mad. H. C. 342 Dinonath Mookerjee v. Debnath Mullick 14 W. R. 429 and Luchmissur Singh v. Dakho I.L.R. 7 Cal. 708. In the last mentioned case it was held that a dowl containing only a portion of the terms upon which a new lease or settlement was to be granted was not a lease or an agreement for a lease within the meaning of the Registration Act.
9. Certain other points have been discussed before us by the learned vakil for the appellant; but we do not think it necessary to express any opinion upon them.
10. The result is, that the decree of the Court below, so far as it holds that the plaintiff is entitled to recover rent at the rate of Rs. 1,501 a year, as mentioned in the original putni lease of the year 1286, should be set aside. The decree will be at the reduced rate.
11. Under the circumstances of the case, we direct that each party do bear his own costs.