1. The facts which are not in dispute in this appeal are these : On 24th Kartick 1342 B.S. corresponding to 10th November 1935, defendant 1 executed in favour of the plaintiff an unregistered document Ex. l. The material portion of this document is as follows:
I am owner in possession of 1 anna 71/2 gandas share zemindary right by inheritance from my late daughter Taisukernessa Khatun in respect of all properties with taluk No. 27206/1 Md. Ami in Pergunah Sukhair Mouza Rajapur Shubangpur, Sarisabanda, Prakharpur, Sariaapur, Sannadpur, Najapur, Bhati, Najapur, Mouza Killa Nazapur, Monza Daulatpur with lands, Bheels, Jheels, Ditches, Rivers, Drains, cultivated and uncultivated lands, Kharaar lands, Khanabari, two bazars and including all sorts of lands whether covered with water or not. You having proposed to me to take Ijara settlement of the said share, I agree to your proposal and give you settlement for the period with effect from 1342 B.S. to 1352 B.S. The rent for the period having been fixed at Rs. 1200, I received today in cash Rs. 100. You will pay me Rs. 900 on 2nd Pous and you will pay the balance of Rs. 200 according to the instalments mentioned below. If you do not pay the said amount of Rs. 900 on 2nd Pous, this patta will become void or cancelled. If the sum of Rs. 900 is paid, I shall execute a registered patta and if I do not do so, I shall be liable for proper damages. You continue from today to be the malik in possession by Ijara right and enjoy the properties; to this, I or my heirs have no objection. I give you mesne profits for the past period. If after the expiry of the period you want a re-settlement I shall be bound to give it and my heirs also will be bound to do so. To this effect I execute this patta. Finish 1342 B.S. 24th Kartick.
2. On 2nd poua 1842, B.S., the plaintiff paid defendant 1 Rs. 900. On 5th Poua 1342 B.S. defendant 1 executed a lease in favour of his son-in-law, defendant 2, who had notice of Ex. 1. The plaintiff thereafter asked defendant 1 to execute a registered lease. Defendant 1, however, refused to comply with this demand of the plaintiff. The plaintiff there, upon raised the present suit for specific performance of the contract to lease in accordance with the terms mentioned in Ex. 1. There was a prayer by the plaintiff for refund of Rs. 1000 paid by him to defendant 1. The trial Court disallowed the plaintiff's prayer for specific performance but directed defendant 1 to refund Rs. 1000 to the plaintiff. The first appellate Court; reversed the decision of the trial Court and decreed the suit for specific performance. On second appeal to this Court by defendant 2, Sen, J. has affirmed the decision of the first appellate Court. Hence this appeal under Clause 15, Letters Patent, by defendant 2. Pour points were urged by the learned advocate for the appellant, namely, (i) that the contract embodied in EX. 1 cannot be enforced in viewfenforced. Admittedly; of the provision of Section 27A, Specific Relief Act; (ii) that Ex. 1 is inadmissible in evidence and consequently there is no evidence of any contract which can be specifically enforced; (iii) that Section 21(g), Specific Relief Act, is a bar to the present suit; and (iv) that, in any view of the case, the contract pleaded by the plaintiff cannot be specifically enforced, as compensation in money is an adequate relief for the breach of the contract.
3. As regards the first point, it is clear from Section 27A, Specific Relief Act, that its object is not to take away the right to claim specific performance in cases where such right existed before the introduction of that section in chap. 2, Specific Relief Act, by the Transfer of Property (Amendment) Supplementary Act, 20 of 1929. If the contract which is sought to be specifically enforced by the plaintiff is a contract to lease, as contemplated by that section (a contract in writing signed by both the parties but not registered), the plaintiff cannot claim specific performance of such a contract without complying with the condition mentioned in that section. If, however, a contract does not come under that section, there is nothing in that section which takes away the right of the plaintiff to enforce such a contract independently of the provisions of that section : vide the case in Gokul Chandra Law v. Haji Mahammad Din : AIR1938Cal136 . The contract which is sought to be enforced in the present case is not a contract to lease within the meaning of Section 27A, Specific Relief Act. Section 27A, Specific Relief Act, therefore, does not stand in the way of the specific performance of this contract.
4. As regards the second point, the argument of the learned advocate for the appellant is this : The terms of the contract to lease have been reduced to the form of a document. The document is inadmissible in view of the provisions of Section 49, Registration Act. Oral evidence of the terms of the contract are inadmissible under Section 91, Evidence Act. Consequently, there is no evidence of any contract which can be specifically enforced. It is not disputed, and it cannot be disputed that an oral agreement to lease can be specifically enforced under the Specific Relief Act. In the present case, the terms of the contract have been embodied in a document. If this document is inadmissible in evidence, then in view of the provisions of Section 91, Evidence Act, its contents cannot be proved by oral evidence. The question therefore is whether this document (Ex. l) is inadmissible in evidence. Before the Act, 21 of 1929, if there was a present demise in an unregistered contract to lease, the unregistered document was inadmissible in evidence in a suit for specific performance of the contract to lease : see the case in Sanjib Chandra v. Santosh Kumar ('22) 9 A.I.R. 1922 Cal. 436 approved by the Judicial Committee in James R.R. Shinner v. R.H. Skinner ('29) 16 A.I.R. 1929 P.C. 269. By Act 21 of 1929, a proviso was added to Section 49, Registration Act. This proviso is in these terms:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may a be received as evidence of a contract in a suit for specific performance under Chap. 2, Specific Belief Act, 1887, or as evidence of part performance of a contract for the purposes of Section 53A, T.P. Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
5. The object of this amendment was to make unregistered agreements to these immovable property admissible in evidence in a suit for specific performance of the contract to lease. Section 49, Registration Act, as it stands after its amendment in the year 1929, does not therefore prevent the plaintiff from proving the terms of the contract embodied in Ex. 1, As regards the third point, the contract to lease in the present case is not a contract the performance of which involves the performance of a continuous duty from day to day extending over a longer period than three years from its date. As regards the fourth point it appears from the explanation to Section 12 that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. But in Ex, 1 it is stated that if the lessor does not execute the lease he will be liable for proper damages. The property originally belonged to defendant 2. He transferred this property to his wife in lieu of dower. After her death, half of this property devolved on defendant 1, the father of the deceased lady, and half on defendant 2, the husband of the deceased lady. Defendant 1 agreed to give lease of an undivided share of the property which was inherited by him from his deceased daughter, the other undivided share being in the possession of defendant 2. In view of these circumstances, the parties agreed that compensation in money would be an adequate relief for the breach of the contract and the contract would not be specifically enforced. Admittedly, the plaintiff paid Rs. 1000 to defendant 1 in Pous 1342 E.S. the plaintiff has been deprived of the use of this money during these years. We are, therefore, of opinion that the plaintiff should get Rs. 300 more as compensation.
6. The learned advocate for the plaintiff-respondents stated before us that it would be impossible for his clients to realise this damage from the defendants and that his clients would lose the property as well as their money. The learned advocate for the appellant thereupon stated that he had no objection to the decree of Sen, J., being affirmed by us if the defendants would fail to pay Rs. 1300 within a period to be fixed by us. We accordingly order defendants 1 and 2 to pay to the heirs of the plaintiff, who died during the pendency of second appeal in this Court, or to deposit in Court the sum of Rs. 1300 within a month from the date of the arrival of the record in the trial Court. On such payment, or on such deposit being made, the plaintiff's claim for specific performance will stand dismissed. In default, the decree passed by Sen, J. will stand. The result, therefore, is that this appeal is allowed in part and the decree of Sen, J. as well as of the first appellate Court are modified in the manner indicated above. The plaintiff-respondents well get their costs from defendants 1 and 2 throughout this litigation. Let the records be sent down to the trial Court as early as possible.