1. This suit is- brought by the plaintiff for the purpose of obtaining specific performance of an agreement for a lease of certain premises Nos. 1 and 1-1, Rup Chand Roy's Street. The premises, in question, are the property of the defendant who appears to be a lady of considerable means. Prior to the 18th November 1907, the property had, for many years, been let to two persons, Heera Lai and Dwarka Das.
2. Dwarka DAS, however, died and in November 1907 Heera Lal was the sole tenant. A considerable amount was then due to defendant from Heera Lal, for rent. Somewhere about November 1907, the plaintiffs approached the defendant's son-in-law, Sreenath Sen, who is also the defendant's duly authorised agent, for the purpose of obtaining a lease of the said premises Nos. 1 and 1-1, Rup Chand Roy's Street. There is a direct conflict of testimony between the parties, as to what took place when the parties orally came to a final agreement on the 18th November 1907. - The plaintiffs say, that there was an agreement, that they should have a lease of the premises for three years, at a rent of Rs. 275 a month, and that that agreement was absolute, although the rent was not to run until the defendant gave them possession, and they further say that Sreenath on behalf of the defendant, undertook to take steps to eject the old tenants from the premises.
3. On the other hand, the evidence on behalf of the defendant, is that the agreement was a conditional one. The condition being, that if the defendant came to an arrangement with the old tenant or his sub-tenant, the agreement should cease. Sreenath Sen says, the time within which the defendant was to come to an arrangement with the sub-tenants, was a period of five to six months commencing from the 18th November 1907.
4. On the 18th November, when the first agreement between the parties was arrived at, a qabuliat was executed by the plaintiffs in favour of the defendant, for a term of three years, at a rent of Rs. 275 per month, and a deposit of Rs.'1,000 was made by the plaintiffs with the defendant, to secure their performance of the agreement. Shortly afterwards, suits were instituted in the Court of Small Causes, Calcutta, against the subtenants, to recover possession of the premises. Matters remained very much in the same position down to the 6th March 1908. The plaintiff's evidence is, that he was all along pressing for registration of the qabuliat of the 18th November 1907, and that as the time for registration was about to expire, or in fact had expired, without the defendant having managed to recover possession of the premises, it was agreed between them, that a fresh qabuliat should be executed, which should be registered when the defendant recovered possession of the premises. I have not the slightest doubt, bat that the story told by the plaintiffs' witnesses, is true.
5. It appears, that, the sub-tenants who were the defendants in the Small Cause Court suits, then approached the defendant with an offer to pay a portion of the heavy arrears of rent, if a lease was granted to some of them. These terms, the present defendant accepted, and on the 28th June, the suits were compromised.
6. In pursuance of such compromise, the present defendant granted to certain of the sub-tenants, a lease of the premises for three years. That lease was granted after the commencement of this suit.
7. There can be little doubt, but that the defendant finding that the sub-tenants were willing to come to an arrangement with her, more favourable than that entered into with the plaintiffs, has set up the defence as to the agreement with the plaintiffs being conditional, on her not being able to come to terms with the tenants or sub-tenants. But even if the story told by Sreenath, were true, namely, that the defendant was to have five or six months from the 18th November 1907, to see if she should come to terms with the tenants or sub-tenants, that time had expired when the defendant compromised the Small Cause Court suits, on the 2Sth July. The only other question which has been raised in the suit, is as to the admissibility of the qabuliats in evidence. It has been objected by learned Counsel on behalf of the defendant, that such documents are inadmissible even for a collateral purpose. The sections of the Registration Act relied on are Sections 3, 17 and 49.
8. In passing. I may remark that the qabuliats were not registered, because defendant made default in registering the same, although the plaintiffs were all along pressing for the registration thereof. The defendant now sets up her own default in not registering the qabuliats, as the grounds for the non-admissibility of the same in evidence for any purpose.
9. Coming then to the authorities that have been cited in the course of the argument before me: The first case is the case of Nemai Charan Dhabal v. Kokil Bag 6 C. 534 : 7 C.L.R. 487, in this Court, where Mitter and Maclean, JJ., held, where by oral agreement, A agreed to grant two mokurari leases of certain properties, to B, and thereupon executed two mokurari leases in favour of B, which however, were not registered in a suit for specific performance brought by B against A, B could, notwithstanding the provisions of the Registration Act, obtain a decree for specific relief, against A. The next case referred to, in the judgment of Sargent, C.J., and Bayley, J., is Parmanand Das Jiwan Das v. Dharsey Virjil 10 B. 101. That suit was also one brought for specific performance of an agreement for a lease, and the Court held that as the agreement had not been registered, it was not admissible in evidence either for the purpose of affecting the land or for any collateral purpose. As opposed to the last mentioned decision, the decision of the Full Bench of the Madras High Court, in the case of Rajah of Venkatagiri v. Narayana Reddi 17 M. 456, where a suit was brought to recover damages for breach of the contract to grant a lease, the unregistered qabuliat was admissible in evidence to prove the contract. By a more recent decision of the same Court, reported in the case of Kondari Srinivara v. Gothumulkala 17 M.L.J. 218 it has been decided, that the unregistered qabuliat is admissible for proving the contract, in a case where the suit is one for specific performance of the contract.
10. It appears, therefore, that in the case of Parmanand Das Jiwan Das v. Dharsey Virjil 10 B. 101, although it has the high authority of being a judgment of Sargent, C.J., stands alone, and that the decisions in this Court and the Madras Court cited above, are not consistent in the case of Parmanand Das Jiwan Das v. Dharser Virjil 10 B. 101. The balance of authority appears to be on the side of admitting the qabuliats in evidence for the purpose of proving the oral agreement, and I hold they are admissible accordingly. In the result, therefore, the plaintiffs are entitled to a decree for specific performance of the agreement come to between the parties, and evidenced by the two unregistered qabuliats and to an enquiry as to what damages they have suffered by reason of the possession of the premises, not having been delivered to them by the 18th May 1908. The defendant must pay to the plaintiffs their costs on scale No. 2