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Amir Ali Vs. Aykup Ali Khan Saudagor and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.509
AppellantAmir Ali
RespondentAykup Ali Khan Saudagor and ors.
Cases ReferredDe Medina v. Polson
Excerpt:
evidence - kabuliat unregistered, inadmissible in evidence--oral evidence as to rent agreed upon, admissible. - .....he stated that the defendant had, on the 6th of july 1898,; executed a kabuliat which was not registered and never came into operation. he claims rent at the rate of rs. 4. it is urged before us that as the kabuliat was not registered and consequently never came into operation under section 107 of the transfer of property act, no oral evidence could be given to show that the rent was fixed at rs. 4. this contention is clearly unfounded. section 92 of the evidence act, on which reliance is placed, is of no assistance to the appellant. it has been repeatedly laid down in this court, as is clear from the case of banka behary christian (beni madhab christian v. rajchandra pal 2 ind. cas. 202 : 14 c.w.n. 141 and the earlier decisions mentioned there, that a tenancy can be proved without.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent against a judgment of Mr. Justice Coxe in a suit for rent.

2. The plaintiff sues to recover rent from the defendant. In his plaint he stated that the defendant had, on the 6th of July 1898,; executed a kabuliat which was not registered and never came into operation. He claims rent at the rate of Rs. 4. It is urged before us that as the kabuliat was not registered and consequently never came into operation under Section 107 of the Transfer of Property Act, no oral evidence could be given to show that the rent was fixed at Rs. 4. This contention is clearly unfounded. Section 92 of the Evidence Act, on which reliance is placed, is of no assistance to the appellant. It has been repeatedly laid down in this Court, as is clear from the case of Banka Behary Christian (Beni Madhab Christian v. RajChandra Pal 2 Ind. Cas. 202 : 14 C.W.N. 141 and the earlier decisions mentioned there, that a tenancy can be proved without proving the lease, if there be one. This is in accord with what is the settled law in England. Thus it was held in De Medina v. Polson (1815) Holt N.P. 47 that when a rent it mentioned in the lease or agreement such rent will be the measure of damages, though the lease be void by the Statute of Frauds. In our opinion, oral evidence was admissible to prove the rent which was agreed upon by the parties and the suit has been rightly decreed.

3. The decree of Mr. Justice Coxe will, therefore, be confirmed with costs.


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