1. This is an appeal on behalf of the defendants in a suit for specific performance of a contract to grant a permanent lease.
2. The case for the plaintiff is that the defendant executed in his favour an amalnamah on receipt of a premium and agreed to grant him a permanent lease of the disputed property, that the defendant has not executed the requisite document, and that consequently the plaintiff is entitled to call upon him to execute and register a lease so that the title of the plaintiff may be perfected.
3. The Court of first instance dismissed the suit refusing to receive in evidence the amalnamah as also oral evidence in proof of the terms of the alleged contract. Upon appeal, the Subordinate Judge has held that the amalnamah and oral evidence are admissible in proof of the terms of the contract. He has, therefore, remanded the case for trial; but he has expunged two issues which raised a question as to the competency of the defendant to execute a permanent lease in respect of what is alleged to be trust property.
3. The defendants have appealed to this Court and have assailed the decision of the Sub-Judge on two grounds, namely, and, that the amalnamah and oral evidence are not admissible in proof of the terms of the contract sought to be specifically enforced; and secondly, that the issues mentioned are material and ought not to have been expunged. In so far as the first ground is concerned, there is obviously no substance in it; The decisions in Kedar Nath v. Poorasundari 6 Ind. Cas. 634 : 11 C.L.J. 548; Upender Nath v. Umesh Chandra 6 Ind. Cas. 346 : 12 C.L.J. 25 : C.W.N. 375 and Surendra Nath Nag Chowdhuri v. Gopal Chander Ghosh 12 C.L.J. 464 : 8 Ind. Cas. 794 show that the amalnamah as also oral evidence are admissible in proof of the terms of an alleged contract, when the object of the suit is to secure specific performance thereof. It is, further, clear on the face of the amalnamah that the parties intended that a proper document should be executed and registered in order to perfect the title of the lessee. Consequently, under Clause (6) of Section 17 of the Indian Registration Act, the amalnamah was not compulsorily regisitrable. Pertap Chunler v. Mohendra Nath 16 I.A. 233 : 17 C. 291. The first ground, therefore, fails.
4. In so far as the second ground is concerned, it has not been seriously argued On behalf of the respondent that the course adopted by the Subordinate Judge can be defeuded. Before a decree for specific performance of the contract is made, the Court must ascertain whether the contract is specifically enforceable and one of the elements to be taken into consideration is, whether the specific performance of the contract would involve a breach of trust. Harnett v. Yeilding (1805) 2 Sch. And Lef. 29 : 9 R.R. 98; Byrne v. Acton (1721) 1 Bro. P.C. 186; Mo tee Bass v. Modhoosoodun 1 W.R. 4; Narain Pattro v. Aukhoy Narain 12 C. 152; Sarbesh Chandra Ram v. Hari Dayal Singh Ray 5 Ind. Cas. 236 : 11 C.L.J. 346 : 14 C.W.N. 451; Specific Relisf Act, Section 21 Clause (e). If the property intended to be let out, is (rust property, and the proposed lease is beyond the authority of the trustee lessor, a Court of Equity will not grant specific performance of the contract. The second ground must, therefore, be upheld. The result is that this appeal is allowed in part, and the order of remand made by the Sub-Judge varied. The scope of the remand will be enlarged and the issues which have been expunged by the but Judge will be restored to be tried out by the Court of first instance. Subject to this variation, the order will be affirmed and there will, be no order for costs in this Court.