1. This is an appeal against a judgment of my learned brother Mr. Justice Greaves, by which he dismissed the plaintiff's suit.
2. The suit was for the specific performance of an agreement contained in an indenture of a lease dated the 8th of July 1912, which was for a period of five years from the 1st May 1912, to grant the plaintiff a renewal of the lease of the premises in question: and, the matter depends upon a covenant in the lease which was to this effect:-'That in ease of due payment by the lessee of the rent hereinbefore contained hereby reserved and the due performance and observance of the conditions and covenants on his part to be performed and observed the lessee shall be entitled to have a renewal of the lease of the said demised premises for a further period of five years on the same terms and conditions as are herein contained except the present condition as to further renewal provided that the lessee gives notice in writing to the lessors of his intention to take such renewal three months before the expiration of the said first mentioned period of five years.' There is no doubt that a notice in writing of the lessee's intention to take a renewal was not given three months before the expiration of the said first-mentioned five years. Such a notice, in order to comply with the terms of the covenant, ought to have been given on the 31st of January 1917, at the latest. It was not so given, and the plaintiff has alleged that the notice as required by the contract was not given because of certain communications which passed between the plaintiff and his wife on the one hand and one of the defendants on the other: and, with regard to that, the statement of the learned Judge may be taken as accurately setting out the facts: He says, 'The plaintiff's case is that on or about the 15th January 1917 one of the defendants, Ganga Churn, came to the premises to collect the rent, that he there met the wife of the plaintiff who said that she and the plaintiff were going to leave the house and that thereupon Ganga Churn said that they had been good tenants, that he desired them to remain and said that there was no need to give the written notice provided by the lease. It appears that on the 30th March 1917 the plaintiff wrote to the defendants stating that his lease was about to expire and that he would be glad to have a renewal for a further period of five years on the same terms and conditions as those specified in the original lease. No answer was given to this letter until the 23rd April, when the defendants' Attorney wrote to the plaintiff saying that no written notice provided by the lease had been given by the plaintiff to renew his lease and that he must deliver up possession on the expiration of the term covered by the lease. It is the plaintiff's case that on the 7th April 1917 Ganga Churn, the defendant, again came to the premises, saw the plaintiff, and agreed with him to renew the lease, and therefore, his case is that, although no written notice was given in accordance with the terms of the lease, such written notice was waived by the defendants and that, this being so, he is entitled to a renewal of his lease of the premises.'
3. The question, in my judgment, depends upon the terms of Section 92, proviso (4) of the Indian Evidence Act. The first part of the Section is as follows: 'When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representative so' interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.' For the purpose of seeing what is meant 'by any such contract grant, &c.;,' it is necessary to refer to Section 91 which provides as follows: ' When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract....'
4. Section 92, proviso (4), is to this effect: ' The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved, except in oases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.' There is no doubt in this case that the lease which is the contract in question was reduced to writing, and inasmuch as it was a lease for five years, it was required by law to be reduced to writing and it was also necessary to register it--there was no dispute that the writing required registration according to law. Therefore, if the alleged agreement, which is relied on by the plaintiff, amounted to a rescission or a modification of the lease, evidence of that agreement could not be given inasmuch as the alleged agreement was made orally.
5. But the learned Counsel who appeared for the appellant in this Court has argued that the arrangement, which was verbally made between the plaintiff's wife and one of the defendants on one Occasion and between the plaintiff and that defendant on another occasion, was not a rescission or modification of the contract, but it was merely a waiver of the performance of one of the provisions of the contract. For the purpose of deciding this question it is necessary to consider what was the real nature of the transaction. In my judgment, the arrangement, if made as alleged by the plaintiff, amounted to an oral agreement to rescind the Clause in the contract, which provided that a written notice should be given: or, it may be said that the alleged arrangement amounted to an oral agreement to modify the contract (which was the lease in this case), and that consequently evidence of the alleged-oral agreement was not admissible. I base my judgment upon the express terms of the Section and I think it is not necessary to refer in detail to the many oases which have been cited to us.
6. Then it is said that the alleged arrangement, between parties amounted to an estoppel and the defendants are estopped from denying that the notice provided by the contract had in fact been given. In my judgment, that point will not avail the plaintiff. This was not, in my judgment, a case of estoppel there was no representation of an existing fact upon which the plaintiff changed his position: on the contrary, if it amounted to anything, it amounted to an undertaking by one of the defendants that he would not in future call upon the plaintiff to perform a provision of the contract, which, in my judgment, cannot be relied upon as an estoppel in this case.
7. For these reasons I think that the judgment of the learned Judge was right and it should be upheld. The result follows that the appeal should be dismissed with costs.
8. Toe lease in this case provided that a notice should be given in writing if renewal was desired. The last day on Which such notice was to be given was the 31st of January 1917. No written notice was in fact given. The appellant, however, says that on the 15th of January 1917 one of the defendants told his wife that there was no need to give a written notice provided for by the lease. What was then the effect of this alleged statement made by one of the lessors and assented to by the appellant. Is it a waiver, or is this a case of rescission or modification of the written agreement, or have we to deal with it as a case of estoppel? In my opinion, there was no waiver, because what was said was said before any breach of the contract occurred, namely, on the 15th of January, and the written notice of renewal was not due until the 1st of February. Upon the facts staled, if true (they are denied, though our judgment must proceed upon the assumption that the statement was made), this was a statement that the lessee need not do something on a future date which under the lease he had contracted to do in the event of his desiring to continue the lease for a further period of five years. Such a statement, in my opinion, amounted to either a modification or rescission within the meaning of Section 92, proviso (4), of the Evidence Act. It may be regarded as a modification if we look to the whole of the lease of which this term was a part, or we may call it a rescission if we look to this particular clause of the lease the operation of which, it was said, was dispensed with by this arrangement. Section 92, proviso (4), excludes this oral statement or agreement.
9. Thirdly, there was no estoppel, because, though, if the facts were correctly stated, there may have been a representation, and possibly an alteration of the condition, there was in fact no representation of a thing within the meaning of Section 115 of the Evidence Act. Such representation as there was was not a representation as to a past or present fact but was a statement of the intention of one of the lessors that on a future date he would no insist upon the performance of a condition to which he was entitled by virtue of the lease: in other words, he would dispense with the written notice which the lease provided for.
10. On these grounds I hold that the appeal fail and must be dismissed with costs.