Renupada Mukherjee, J.
1. This is an appeal by the plaintiff, and it arises out of a suit for specific performance or a contract to lease out certain immovable properties described in the schedule of the plaint by the defendant in favour of the plaintiff. The suit was contested in the Trial Court by the defendant, and dismissed, and so the plaintiff has preferred this appeal. The facts of the case will appear from the body of the judgment.
2. Before coming to the matters which are really in controversy between the parties, it will be useful to set out the following fact about which there is no dispute. Defendant Kshetra Hari Sarkar, since deceased, was the owner of municipal premises Nos. 12, 13, 14 and 15, Chingrihatta Lane, within police station Beliaghatta in the close suburbs of Calcutta. These premises comprise an area of about 20 bighas of land with a two storied building upon a portion. The rest of the land comprises mainly vacant land with three tanks and some tinroofed structures near the entrance gate. For reasons known to himself and not disclosed by evidence defendant Kshetra Hari wanted to give a long, term of lease of the premises on suitable terms, and for this purpose he engaged the services of one Gopeswar Mallik, an estate and house agent. On the 13th December, 1944, the defendant gave a letter of authority to Gopeswar (Exhibit 7(a)) empowering him to secure a lessee of the above premises for a term of 81 years at a rent of Rs. 300/- per month and 'selami' of Rs. 30000/-. The remuneration of the broker was fixed at Rs. 8000/-, and the letter of authority was to remain valid for a period of seven days from the date of issue.
Plaintiff Baijnath Bajoria is a businessman having a large scale business in motor transport and also owning an agency under the Civil Supplies Department for storage of food grains. He required a large plot of land in the vicinity of Calcutta for business purposes, and he was also in communication with broker Gopeswar Mallik. Gopeswar communicated the terms of Kshetra Hari to the plaintiff on the 13th December, 1944, and they together inspected the premises in question on the same day at noon. The parties part company at this stage. It is the case of the plaintiff that the main terms of the lease were verbally settled direct between the parties on this day, and the case of the defendant is that beyond an, inspection of the locality by the plaintiff and some rambling discussion on some of the terms of the lease no - concluded agreement took place between the parties about the proposed lease.
The defendant further contended that the negotiations for the lease took place only with regard to twelve bighas of vacant land from out of the four premises in question and not with regard to the premises in their entirety as alleged by the plaintiff. These contentions of the defendant will be dealt with in their appropriate place in the judgment.
3. To proceed now with the undisputed facts of the case. The solicitors of the plaintiff wrote a letter to the defendant on 14-12-1944 (Exhibit A) embodying certain terms of a contract of lease said to have been concluded between the plaintiff and the defendant on the previous day and requiring the defendant to send his documents of title for investigation pursuant to one of the terms of the alleged agreement. This letter reached defendant Kshetra Hari on the 20th December, 1944, and his solicitor Sarojendra Kumar Dutt sent a reply on 2-1-1945 (Exhibit 1(a)) denying on behalf of his client that there was any concluded contract between the parties and pointing out in particular that there was no agreement over some of the terms set forth in the letter of plaintiff's solicitor. After this there was some more correspondence between the solicitors of the parties until the defendants' solicitor finally repudiated the plaintiff's claim by a letter dated 27-1-1945 (Exhibit A(7)).
Thereafter the plaintiff instituted this suit on 7-3-1945, for specific performance of the alleged contract. Defendant Kshetra Hari died during the pendency of the appeal in this Court and his heirs consisting of three sons and widow were substituted in his place as respondents.
4. The only point requiring decision in this appeal is :
Was there any concluded contract between the parties that Kshetra Hari Sarkar would lease out the disputed property to the plaintiff on the terms and conditions set forth in the plaint? Is the alleged contract specifically en-forcible?
5. Before dealing with the question as to whether there was any concluded contract of lease between the parties it will be useful to consider first whether the defendant intended to lease out the four municipal premises mentioned above in their entirety as alleged by the plaintiff or only 12 bighas of vacant land after excluding his residential house with its appurtenant lands and some tenanted lands. If the contention of the respondents on this issue succeeds, then the main plank of the appellant's case would be gone, and his suit would be dismissed straightway. The finding of the Trial Court on this point is in favour of the plaintiff, it being held that Kshetra Hari intended to lease out the four municipal premises Nos. 12, 13, 14 and 15 in their entirety without any reservation or exclusion. This finding is supported not only by unimpeachable documentary evidence which came into existence prior to the institution of the suit, but also by the very written statement filed on behalf of Kshetra Hari. I may refer to these documents one by one.
6. The first document in order of chronological sequence is Exhibit 7(a), an admitted letter of authority given by Kshetra Hari to Gopeswar on 13-12-1944. The plaintiff also produced another letter of authority (Exhibit 7) the genuineness whereof was questioned by the defendant. For the present I shall deal only with the admitted letter of authority. I may refer to the following portion of this letter which is material for the point under consideration :
Messrs. B. Mallik & Co.,
32, Amherst Row, Calcutta.
Re : 12, 13, 14 and 15, Chingrighata Lane, I hereby authorise you to secure a lessee of my above premises for lease of 81 years at a rent of Rs. 300 per month with Selami of Rs. 30,000 only.'
Premises Nos. 12, 13, 14 and 15 are mentioned here without any curtailment or reservation. The draft of this letter of authority, was prepared by Gopeswar. The defendant's suggestion was that this draft was prepared by Gopeswar with some ulterior motive and he mentioned the four municipal premises in their entirety against the desire of Kshetra Hari. I may, however, mention that the fair copy of the letter was prepared from the draft by Kshetra Hari's son Bimal. There is, therefore, no reason to think that Gopeswar played the defendant false. It is an admitted fact that some talk, took place between the parties direct on 13-12-1944, about the proposed lease. The plaintiff's solicitor Charu Chandra Basu sent a letter next day to the defendant embodying the main terms of the alleged contract. I shall have to deal with this letter in greater detail in a subsequent portion of the judgment.
For the purpose of deciding the point I am now dealing with, I may mention that the following is the heading of the letter :
'Re : Lease of premises Nos. 12, 13, 14 and 15, Chingrighatta Lane, Calcutta.'
This heading of the letter marked Exhibit A coupled with term (5) of this letter wherein the defendant is said to have agreed to give up vacant possession of the 'entire premises' leaves no room for doubt that the plaintiff was wanting a lease of the four premises in their entirety. This letter was received by the defendant on 20-12-1944, and his solicitor Sarojendra Kumar Dutt gave a reply on behalf of his client on 2-1-1945 (Vide Exhibit 1(a)).
A perusal of the letter of defendant's solicitor shows that the contract alleged by the plaintiff was challenged on the ground that there was no agreement on some material terms Bet forth in the letter of plaintiff's solicitor. Strangely enough although the reply by defendants solicitor was given in a leisurely fashion, it omitted to state that there was an initial and fundamental difference between the parties regarding the subject matter of the contract.
7. Kshetra Hari filed his defence on 1-5-1945, and he also filed an additional written statement on 4-6-1946. There is not a whisper of the above contention in any of these documents; rather from paragraphs 5 and 7 of the original written statement it would appear that the defendant was well aware that the plaintiff was asking for a lease of the entire premises, but the defendant had intimated to him that it would not be possible for him to deliver vacant possession within the time demanded by the plaintiff viz., 31-12-1944, on account of the existence of his residential house and also of some tenants and a Deity in a portion of the land. The defendant never made a case that he had intended from the very outset to give, lease of 12 bighas of vacant land only, and so the question of giving vacant possession of the entire premises did not arise. It seems to me that this case was made by the defendant on the spur of the moment at the time of the hearing of the suit in the Trial Court, and so in agreement with the findings of the Trial Court I reject this contention of the defendant and hold that both parties knew and intended from the beginning that if any lease was to be given and taken, it would be in respect of the entire premises Nos. 12, 13, 14 and 15, Chingrighatta Lane, without any curtailment,
8. I next deal with the question whether there was a concluded and complete contract between the parties, and, whether Kshetra Hari agreed to lease out the premises in question to the plaintiff on the terms and conditions set forth in the plaint. This brings me to a consideration of the two letters of authority purporting to have been given by Kshetra Hari to Gopeswar on 13-12-1944. They were marked Exhibits 7 and 7(a) in the Trial Court.
9. Exhibit 7 runs in the following terms :
Messrs. B. Mullick & Co.,
32, Amherst Row, Calcutta.
I do hereby agree to lease out my GardenHouse with land measuring about 20 bighas andwith 2 storied building numbered 12, 13, 14 and15, Chingrighatta Lane for a period of 81 yearsat the rent of Rs. 300/- per month and selamiof Rs. 30000/- (Rupees thirty thousand) only.Municipal Taxes, Revenues and all municipalrequisitions to be borne by you. This letter ofauthority will hold good for 7 days only.
Kshetra Hari Sarkar.'
10. Exhibit 7(a) is also quoted below:
Messrs. B. Mallik & Co.,
32, Amherst Row, Calcutta.
Re : 12, 13, 14 and 15, Chingrighata Lane. I hereby authorise you to secure a lessee of my above premises for lease of 81 years at a rent of Rs. 300/- per month with selami of Rs. 30,000/- only. I undertake to pay you as remuneration of Rs. 8000/- only in lump sum for the transaction on the registration of the lease. This letter of authority will remain valid for 7 days from date.
Kshetra Hari Sarkar.'
11. It is an admitted fact that the broker met the defendant on several occasions prior to 13-12-1944, in connection with this transaction.
12. Broker Gopeswar Mullick (Plaintiff's witness No. 5) stated in his evidence that he met the defendant on the 12th December, when the latter gave his final terms, and after these terms were conveyed to the plaintiff he asked Mullick to bring a letter of authority from the defendant which he did bring on the following day. The broker further states in his evidence that Exhibit 7 is that letter of authority. The evidence of the broker further is that after this letter was brought the plaintiff and his son Rameswar visited the locale in company with the broker and the contract was verbally concluded then and there between the parties by mutual discussion. Mullick also stated in his evidence that he again went to the defendant alone on the afternoon of the same day and obtained another letter of authority (Exhibit 7(a)) containing the amount of his remuneration together with some tax bills and a copy of a plan of the premises.
The defence case is that the broker had talk with defendant's son Anil on the 12th December, and that only one letter of authority together with the plan and tax bills was made over to him on the morning of the 13th December. That the broker again paid a visit to the defendant on the afternoon of the 13th December was denied by him. Exhibit 7 is impugned by the defendant as a false ana forged document manufactured for the purpose of this suit. It is immaterial for our purposes whether the broker saw only Anil or Anil and his father on the 12th December, but it is important for our purposes to find out which letter or letters of authority were made over by the defendant to the broker on the 13th December. The admitted evidence shows that the broker himself prepared a draft (Exhibit B) of the letter of authority marked Exhibit 7(a) which was fair-copied by defendant's son Bimal. I find that the body of the whole of Exhibit 7 is in the handwriting of the broker. He deposes that Kshetra Hari has signed this document. Some genuine signatures of Kshetra Hari were compared with the disputed signature in Exhibit 7 by handwriting expert Sridhar Chatterjee (defendant's witness No. 6) in whose opinion the writer of the specimen signatures was not the writer of the signature in exhibit 7. The expert gave reasons in support of his conclusion.
The Trial Court accepted his evidence and came to the finding upon a consideration not only of the evidence of the expert, but also of other relevant evidence and the circumstances of the case, that exihibit 7 was not signed by the defendant and was not a genuine document. This finding of the Trial Court could not be successfully challenged by Mr. Gupta appearing on behalf of the appellant, and agreeing with the Trial Court I hold that the defendant gave one and only one letter of authority to the plaintiff which was marked exhibit 7(a) in the Trial Court and that Exhibit 7 was manufactured for the purpose of this suit. Defendant apparently gave Exhibit 7(a) to the broker on the morning of the 13th December along with the plan and the tax bills, and no further document was given to the broker on the afternoon of that day as was deposed to by him.
13. The next important question is how far the plaintiff is responsible for the creation of this false and forged letter of authority. It may no doubt be urged on his behalf that after obtaining a genuine letter of authority from the defendant, broker Mullick manufactured another letter for making it over to, the plaintiff, because he was anxious to keep out from the knowledge of the plaintiff that the defendant had offered him quite a handsome remuneration in the event of successful termination of the negotiations. I do not, however, think that the plaintiff can totally evade his responsibility for this deed in this way.
14. The plaintiff (plaintiff's witness No. 3) admitted that he got Exhibit 7 from the broker on 13-12-1944, before proceeding to the locale. It is very unlikely that the broker would have taken into his head to manufacture a letter of authority directly after having received a genuine one from the, defendant. Then again although exhibit 7(a) is in conformity with the true form of a letter of authority, exhibit 7 is drafted in the form of an agreement executed by the defendant, and the mentioning of the exact area and of the building has been made in such a manner as to suit the case of the plaintiff. The clause as to payment of municipal taxes 'et cetera' also seems to be an improvement upon exhibit 7(a). Such an improvement could have been made and the form changed from the form of Exhibit 7(a) only for the benefit of the plaintiff, and this improvement could not have emanated at the instance of the broker only.
It 'is also significant that the plaintiff at first filed in Court only a typed copy of this so-called letter of authority, but the original was produced in Court upon a requisition for production being made by the defendant on 7-6-1946 ' (Vide order No. 20, dated 7-6-1946). On a consideration of all these facts and circumstances I am of opinion that the false letter of authority marked exhibit 7 must have been brought into existence for the benefit of the plaintiff and with his knowledge.
15. I now turn to the proceedings which took place between the parties on 13-12-1944, Admittedly there was a meeting between plaintiff Baijnath and deceased defendant Kshetra Hari in the disputed premises on that day and there were also some discussions about the proposed lease between the parties. According to the plaintiff, the discussions culminated in a final and concluded contract the material terms whereof were mutually agreed upon by both the parties. The terms were not reduced to writing. That the plaintiff, however, felt the necessity of some document in writing can admit of no doubt, because he went to the locality to discuss about the lease only after having obtained a written letter of authority from the defendant. The following lines from the deposition of the plaintiff are also significant :
' 'There was nothing to prevent us putting down the terms of pur agreement in writing then and there except that I wanted to have it done through a Solicitor.'
It is, therefore, clear from the testimony of the plaintiff that he wanted the terms of the contract to be finalised in writing through his solicitor. Accordingly the Plaintiff sent a solicitor's letter to the defendant which may be described as a letter of confirmation. This letter purports to embody the material terms of the agreement and so it is reproduced verbatim here :
9, Old Post Office Street,
Calcutta, 14th Dec. 1944.
'Charu Chandra Bosu,
Phone : Cal 1904
Tel. Address: 'LEGACY'
Kshetra Hari Sirkar, Esq.,
14, Chingrighatta Lane,
Re: Lease of Premises Nos. 12, 13, 14 and 15, Chingrighatta Lane, Calcutta.
On the 13th instant you authorised Messrs. B. Mallick & Co., House and Land Agents, to negotiate a Lease of the above premises.
Pursuant to such authority Mr. G. Mullick of Messrs. B. Mullick & Co. approached our client Mr. Baijnath Bajoria M. L. A. (Central), and induced him to obtain a Lease.
Our client thereafter accompanied by his son Mr. Rameswar Bajoria and the said Mr. G. Mullick called on you yesterday. The following terms were discussed and definitely agreed upon :
(1) The period of the lease will be 81 years commencing from 1-1-1945.
(2) Our client will pay a monthly rent of Rs. 300/-, to be paid by the 7th of each succeeding month.
(3) Our client will pay a Selami of Rs. 30000/-at the time of execution of the Lease.
(4) Our client will pay both owner's and occupier's shares of Municipal Taxes payable in respect of the said premises and will also comply with all Municipal requisitions.
(5) You will give vacant possession of the entire premises to our client on or before 31-12-1944, or before the execution of the lease, whichever is earlier.
(6) Our client will have the right to cut trees, excavate and fill up tanks and sink Tube Wells as may be required by him from time to time.
(7) Our client will be at liberty to sublet a part or the entirety of the premises for any period without any reference to you. Our client will, of course, be responsible to you for payment of the full rent.
(8) The Lease will contain all other usual clauses which are usually contained in a lease of this nature and the lease will be prepared at the cost and expenses of our client.
(9) You will make out a good title to the property free from all encumbrances, attachments and 'lis pendens.'
It was also arranged that you would make over the Municipal Rate Bills and a Plan of the property yesterday and you requested Mr. Mullick to see you in the afternoon. Pursuant to such request Mr. Mullick called on you and you made over the Municipal Bate Bills and the Plan to him.
We shall now thank you to send us the documents of title herein for our investigation and oblige.
Charu Chandra Bosu.'
16. This letter sets forth nine terms of agreement said to have been discussed and concluded between the parties. Without coming to a definite finding whether all these nine terms had really been agreed upon between the parties, I may pronounce at the very outset that taking the letter at its face value, the plaintiff has failed to make out a case of concluded contract. Term No. 9 of the alleged letter coupled with the concluding sentence of the letter states that- the defendant had agreed to make out a good title to the property free from all encumbrances, attachments and 'lis pendens'. In the concluding sentence of the letter the defendant was requested to send the documents of title to plaintiff's solicitor for his investigation.
In his deposition the plaintiff has enumerated in detail the terms on which there was the alleged agreement between the parties. As to documents of title, it is stated that he asked the broker to taring a copy of the plan of the premises and the municipal tax bills from the defendant to satisfy the plaintiff that the defendant was the owner of the premises. According to the evidence of the plaintiff as well as of the broker, these documents were brought by the broker on the afternoon of the 13th December. According to the defendant, they had been made over to the broker earlier in the day together with the admitted letter of authority marked exhibit 7(a). Be that as it may, the plan and the tax bills were in plaintiff's hand when his solicitor's letter was written on the next day. Apparently, the plaintiff was not satisfied that these documents constituted complete proof of defendant's title, and so the defendant was required to make out a good title and to send his title deeds for plaintiff's investigation, although in his oral evidence the plaintiff does not say that any such, term was agreed upon between the parties.
17. Under Section 25, Specific Relief Act, a lessor is bound to give the lessee a title free from reasonable doubt, and where a prospective lessee demands title deeds from the prospective lessor for his investigation and approval, it cannot be said that there has been a final and concluded agreement between them, although, most other material terms may have been agreed upon by them. In such a case the lessee is free to back out of the contract if he is not satisfied about the lessor's title, and so long as one party is left free to back out of a contract at his choice, it cannot be said that any binding contract has been arrived at between the parties.
18. Mr. Mitter appearing on behalf of the respondents referred in this connection to a case reported in -- 'Koylash Chunder Doss v. Tariney Churn' 10 Cal 588(A). It was a case for specific performance of a contract of sale at the instance of the vendor. His claim for specific, performance of the contract was disallowed, because there was no settlement between, the parties regarding the inspection of title deeds and payment of earnest money.
19. In the present case, although the plaintiff failed to prove in his oral evidence that the defendant had agreed to make out a good title to the property and although he made a case that all material terms were agreed upon between the parties on the 13th December, yet, on the very next day he required the defendant by his solicitor's letter to make out a good title to the property and to produce documents of title for the investigation of plaintiff's solicitor. This shows that the deal was not closed as has been deposed to by the broker, but the contract was kept dependent on the approval of defendant's title by the plaintiff. Under these circumstances, it cannot be said, that there was any concluded and binding contract between the parties on 13-12-1944.
20. Mr. Gupta on behalf of the appellant contends that his client is not insisting upon proof of defendant's title, and is ready to take the property with such title as the defendant has got. In other words the plaintiff is waiving his right of investigating defendant's title. But subsequent waiver of any of his rights by the plaintiff cannot afford any criterion for determining whether there was a binding contract between himself and the defendant at the date of the alleged contract. The true test for determining whether there was such a binding contract is whether the parties were of one mind on all material terms of the contract at the time it is said to have been finalised between them and whether they intended that the matter was closed and concluded between them.
21. The following observations of Sir Ashutosh Mookerjee, J. in -- J. I. J. Hyam v. M. E. Gubbay,' AIR 1916 Cal 1 (FB)(B), may be quoted :
'Prom these expressions of judicial opinion, it is clear that, after all, the question is mainly one of intention. If the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the contract actually made, though the signing of the written draft be omitted. If, on the other hand, such party neither had nor signified such an intention to close the contract until it was fully expressed In a written instrument and attested by signature, then he will not be bound until the signatures are affixed.'
(p. 22 of the report).
In the present case, the plaintiff himself intended that no final lease could be made between the parties until the defendant made out a good title to the plaintiff and until it had been approved by plaintiff's solicitor after investigation.
Then again there is no statement in the letter marked Exhibit A that any contract for lease was concluded between the parties. The letter merely says that 'some terms' were discussed and definitely agreed upon between the parties. Of course, it is stated in the letter that pursuant to his letter of authority Mr. G. Mallick had induced the plaintiff to obtain a lease of the premises in question. It, however, goes without saying that Gopeswar Mullick who was acting merely as a commission agent for procuring a lessee had no authority to enter into any contract of lease with the plaintiff. Vide -- 'Durga Charan Mitra v. Rajendra Narayan Sinha', AIR 1923 Cal 57 (C). In the absence of any definite statement in Exhibit 7(a) that a contract of lease had been concluded between the parties by mutual agreement and in view of the insertion of term (9) coupled with the concluding sentence of the letter, I am of opinion that there was no binding or concluded contract between the parties on 13-12-1944.
22. A consideration of one or two other terms of the above letter will also lead to the same conclusion. For instance, I may refer to term (8) of the letter of confirmation. This term runs as follows :
'The lease will contain all other usual clauses which are usually contained in a Lease of this nature and the Lease will be prepared at the cost and expenses of our client.'
The Trial Court has practically refused to believe the plaintiff's story that there was an agreement between the parties that the lease would contain all other usual clauses which are usually contained in a least of this nature. I have carefully examined the evidence of the. plaintiff and the broker on this point, and I find that the evidence of both the witnesses is totally silent about such an agreement. Kshetra Hari denies that there was such an agreement and he says that he does not even understand what is meant by usual terms. Having regard to the evidence on record, I am definitely of opinion that there was no agreement between the parties that the lease would contain all usual terms which are generally incorporated in leases of this description.
Mr. Gupta on behalf of the appellant argued that even if there was no such express agreement between the parties, the material terms having been agreed upon other subsidiary and non-essential terms would be incorporated in accordance with the general principles governing such leases. In support of his contention Mr. Gupta cited a case reported in -- 'Bijoykanta Lahiri v. Kailash Chandra', AIR 1919 Cal 369 (2)(D). In that case the defendant in a suit for specific performance of a contract for grant of 'putni' lease raised, among others, an objection that there was no agreement between the parties as to by what instalment rent should be paid and at what rate interest should be paid on arrears of rent. This objection was overruled on the ground that in the absence of an agreement on such matters they should be governed by the tenancy law of the country.
23. Now, 'usual terms' are very variable phenomena, differing materially not only according to the nature of the contract, but also according to the size situation and value of the properties which are the subject matter of the contract. Thus the usual terms of a contract for sale must necessarily be widely different from the usual terms of a contract for lease. Then again the usual terms of a short-term lease or lease of a small property must vary from the usual terms of a long-term lease or a lease of a big property. In the case cited by Mr. Gupta, the usual terms of the 'putni' lease could be fully supplied by the general tenancy law of the land. Can the same thing be said with reference to the lease with which we are concerned? My answer must be in the negative. One test for determining whether the agreement of parties on usual terms may be dispensed with or not is whether a conveyancer would be able to work up a complete lease from the terms agreed upon between the parties and supply the 'usual terms' from the general law of the land and from the customary rules of drafting in such a manner as to preclude the possibility of any reasonable objection by either party.
In my judgment, it is not possible to prepare such a complete and final lease from the terms enumerated in the letter marked Exhibit A. There are some gaps and omissions which cannot be supplied from the general law governing leases. For instance, the Trial Court has found that there are two tenants on the land, one Francis Vianest, a hide merchant, having a right to dry up hides on a portion of six bighas of vacant land, and another Sukhan Mistry possessing some 8 1/2 cottas of land. This fact was not brought to the notice of the plaintiff and there was admittedly no agreement as to what consequence would follow if the lessor failed to deliver vacant possession of the entire premises including the tenanted lands. There was no agreement between the parties as to whether the plaintiff would give any security for regular payment of rent, or at what rate interest would run on arrears of rent.
There was also no agreement as to the proportion on which compensation would be apportioned between the parties in case of compulsory acquisition of the leasehold premises. Nothing was also said or agreed upon about the repairs of the existing building. These are matters which could not be properly or effectively dealt with in the final lease simply by a reference to the general law governing leases. The plaintiff felt this difficulty and so falsely enough his solicitor wrote in the letter of confirmation that there was an agreement that the lease would contain all other usual terms, although in fact there had been none. Thus the plaintiff considered such a term to be a vital term of the agreement. As there was no? such agreement, the contract was not complete and the suit must fail for that reason as well.
24. A consideration of term (5) of Exhibit A will also lead to the same result. This term runs as follows:
'You will give vacant possession of the entire premises to our client on or before 31-12-1944, or before the execution of the Lease whichever is earlier.'
The defendant's case is that there were two tenants on the land -- one Francis Vianest, a hide merchant, occupying six bighas of vacant land for drying up hides, and another, man Sukhan Mistry occupying 8 1/2 cottas of land by erection of structures. It is also the case of the defendant that he has got his two-storeyed residential house on the land and also a family Deity, viz., Deity Annapurna is installed in a hut near the gate. The defendant, therefore, contended that it was not possible for him to make over vacant possession to the plaintiff within the short time mentioned in the letter. Indeed thg defendant made a case that the negotiations for the lease took place in respect of twelve bighas of land excluding the building, the hut of the Deity and the tenanted lands. That story has been found to be false both by the Trial Court and myself.
25. Mr. Gupta strenuously contended that the specific case made by the defendant having been found to be false, the case made by the plaintiff should be believed as it is consistent with the admitted letter of authority (Exhibit 7(a)) issued by Kshetra Hari to the broker. I am not impressed by this argument, because exhibit 7(a) sets forth the terms of the proposed lease in a very skeleton form, and it is for the plaintiff to prove affirmatively that all the material terms of the lease were agreed, upon between the parties. I am prepared to believe the plaintiff that Kshetra Hari did not mention the existence of the tenants at the time of the negotiations and that the plaintiff undertook to conduct the 'sheba' and 'puja' of the Deity if the lease was given and if the Deity was not removed. The evidence of plaintiff's own witness Gopeswar Mullick (Plaintiff's witness No. 5) demolishes the case of the plaintiff that the defendant had agreed to give vacant possession of the entire premises on or before 31-12-1944 or before the execution of the lease whichever was earlier.
The broker stated in his examination in chief that when the talk of lease was going on between the parties, the defendant stated that he would find a house and then leave the house on the disputed premises and he might take three or four or five months for shifting. This being the evidence of plaintiff's own witness, I hold that there was no agreement between the parties as regards term (5) of Exhibit A. That being so, it cannot be said that there was a complete agreement between the parties on all the essential terms of the contract.
26. From the foregoing findings, it would be sufficiently clear that there was no such contract between the parties as is capable of being specifically enforced and so the suit has been rightly dismissed by the Trial Court.
27. Before parting with the case, I shall consider one other ground which has been held to be sufficient by the Trial Court for the dismissal of the suit It would appear from the concluding portion of the judgment of the Trial Court that that Court would have refused to enforce the contract on the ground of hardship even if the plaintiff had succeeded in making out a case of concluded contract. I am not inclined to agree with this view taken by the Trial Court. According to that Court the performance of the contract would involve serious hardship on the defendant as he would have to vacate his own house and it would not be possible for him to secure another house within a reasonable rent. In my judgment, the Trial Court has not properly appreciated the question of hardship. If the claim of the plaintiff were otherwise tenable I would not have rejected it simply on the ground of hardship to the defendant, because he negotiated a lease of the entire premises, including the building, with eyes open and knowing fully the consequences of such a lease and the hardship was one which must have been foreseen by him before carrying on the negotiations.
28. In the result, the appeal fails. It is accordingly dismissed with costs.
R.P. Mookerjee, J.
29. I agree.