1. In this case two questions have been argued on behalf of the appellant. It appears that the plaintiff and the defendant appellant were in treaty for letting out to the defendant certain premises 176 Harrison Road belonging to the plaintiff. The first document with which we have to deal is a document which came into existence on the 22nd March 1922 and it is contended by the appellant that the learned Judge should have excluded that document from evidence altogether. It is also contended by the appellant that the agreement founded on by the plaintiff is not proved and that the parties have not shown to have been ad idem as to the question whether or not anything in the way of carrying on business was to be allowed to the defendant on these premises.
2. The question arose by reason of the fact that although according to the plaintiff the defendant was in possession having taken these premises for three years he suddenly vacated them altogether and refused any further to carry out the covenants. Accordingly the learned Judge has at the instance of the plaintiff awarded certain damages against him.
3. We are not concerned in this appeal save with the two points to which I have already referred.
4. It was contended by Mr. Sircar on behalf of the appellant thai; the letter of the 22nd of March although only signed by the defendant's son and although addressed to Mr. N.C. Bose - a solicitor - was really a document which was an agreement for a lease operating to transfer a present interest in the premises and that consequently it was hit by Section 49 of the Registration Act.
5. Upon the evidence the learned Judge has not taken that view. The learned Judge has dealt with the letter on this basis that the plaintiff and the defendant's son on behalf o his father made a verbal agreement with regard to the terms upon which a formal lease should be given to the defendant by the plaintiff. Having come to this verbal agreement and concluded it to that extent they then went together to the plaintiff's solicitor to see that necessary instructions were given him for the drawing up of a lease.
6. It appears when one looks to the pleadings that the defendant was making all sorts of defences which have now been held to be unfounded, but he said that he was a monthly tenant of these premises.
7. Leaving the pleadings aside, however we come to the correspondence and it is clear that the moment he was challenged the plaintiff made the case that the agreement upon which he was relying was a verbal, agreement and he took a view of this letter according to which, no doubt, it was very valuable evidence of what the agreement between the parties had been but according to which it was not the intention of the parties by this letter to effect or embody an agreement between themselves.
8. When one comes to the evidence one-finds that the parties first of all went to Chandi Babu, an Assistant in the plaintiff's solicitor's office and himself an Attorney, and according to his evidence it certainly looks as if the parties had completely effected an agreement between themselves and accordingly came to him to give instructions to draw up a lease.
9. It appears, however, that there was one complication. Haying, written out a letter stating in the form of instruction to Mr. N.G. Bose what sort of a lease the parties wanted him to draw up, Chandi Babu sent the parties to Mr. A.C. Bose Mr. A.C. Bose seems to have asked something about the rights of the defendant to sub-let. Whether the two new clauses that were then put in were really new terms or not does not seem to me to matter because the question must turn upon whether this letter was intended by the parties to be the embodiment or repository of an agreement between themselves or whether it was drafted on the basis that the parties had themselves concluded an agreement but that as it was an agreement for execution of a lease they desired to give instructions about a lease to the solicitor in a way that would prevent disputes or trouble and enable the-transaction to go on.
10. I am not of opinion upon the evidence that this Court should interfere with the findings of the learned Judge to the effect that the letter was intended as a letter of instruction to the solicitor and was not intended as an agreement between the parties. That disposes of the first question.
11. On the question whether the parties were ad idem or not I see nothing whatever to quarrel with in the view taken by the learned Judge. But it is contended by Mr. Sircar that if this letter of the 22nd o March is regarded as a mere letter of instruction to the solicitor any verbal agreement to the same effect a this letter would be a verbal agreement intending, to operate as passing a present interest in the land for three years. Accordingly, he says that being so, even a verbal arrangement would be nugatory in spite of the fact that it provided for the arrangement being subsequently embodied in the terms of a formal lease. It is said that such an oral arrangement would be intended to pass an immediate interest in the property and is by itself a lease within the meaning of the Transfer of Property Act, and although naturally an oral agreement cannot be hit by the Registration Act it would be entirely void because it would attempt to operate as such within the meaning of Sections 105 and 107 of the Transfer of Property Act. In my judgment, that is an argument which is not to be accepted at all and there are a great many cases in which oral agreements and terms such as these for leases have been specially enforced in this Court, and I am not prepared to say that an oral agreement to the effect in the present case would be a mere nullity notwithstanding the fact that the parties were intending a lease to be executed. In point of fact, it appears that the ?defendant some little time after paid a deposit and was allowed into possession on the strength of this verbal agreement.
12. In my judgment, the contentions that have been so ably urged on behalf of the defendant in this case come to nothing and the appeal must be dismissed with costs.
C.C. Ghose, J.
13. I agree.