Jadunandan Das and Another vs Mt. Maho and Others

Wort, J.—This appeal by the plaintiff arises out of an action in which he claimed a declaration that the defendant first party had no right to build permanent walls on the land in suit, and also prayed for a mandatory injunction calling upon him to demolish the objectionable buildings. The defence to the action was that as far back as 1923 when the thatched buildings had been destroyed by fire the interested defendants approached the plaintiffs'' father and he agreed that the defendants could rebuild "by constructing what is ordinarily known in this country as pucca buildings. The trial Court came to the conclusion that the agreement had not been proved but disallowed the plaintiffs'' claim as regards certain rooms but ordered the demolition of the wall. It appears that the reason why there was no order as regards the rooms was that no claim had been included in the plaint with regard to them. The Appellate Court allowed the appeal coming to the conclusion that the agreement put forward by the defendants had been established.

In this Court for the first time it is contended that it was not open to the defendant to prove the agreement of 1923 as it was contrary to the provisions of Section 92, Proviso (4), Evidence Act. Section 92 prohibits the proof of an oral agreement in variation of a written agreement, but the Proviso allows for the proof of "any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property," and there is an exception tagged on to the Proviso that if 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," then the Proviso does not apply. It seems to me quite clearly that it is necessary to decide whether the expression "or has been registered" refers to the fact of registration and not to the requirement of law and therefore, being an agreement although by law not required to be in writing but has been registered, and not an agreement to rescind or modify such contract, is inadmissible in evidence. The question therefore to be determined in the first place is whether the agreement proved by the defendant was an agreement to rescind or modify a contract.

Before dealing with that point, I would refer to another question which arose during the course of the argument and that relates, to the form of the lease. It appears that the plaintiff proved no patta, called for no patta from the defendant, nor did the defendant produce it, nor is there any indication in the record of the case that any such patta exists. Therefore the lease was ineffective in law by reason of the decision of this Court in Ramkrishna Jha v. Jainandan Jha A.I.R (1935) . Pat. 29 1 if it is to be construed as a lease for a year or more than a year. If that be so, it is obvious that the plaintiff cannot prove the covenant to build a thatched house only. I have had the kabuliyat translated and in my opirtion the lease must be construed as a lease from month to month u/s 106, T.P. Act, determinable on fifteen days'' notice and not as suggested determinable at will. Any suggestion made by the defendants therefore that they have got a permanent lease is disposed by their Lordships of the Judicial Committee in AIR 1931 79 (Privy Council) and the subsequent decision of this Court with regard to the matter. That being so, it is quite clear that the plaintiff was entitled to establish or prove the covenant in the agreement or kabuliyat which was adduced in evidence in the case. That aspect of the case has certainly an important bearing upon the relief which the plaintiff claimed with which I shall deal in a moment; in the meantime it is necessary for me to decide whether this is a case in which the defendant attempted to prove an agreement to rescind or modify any such contract. I must say I find considerable difficulty in coming to a conclusion with regard to the matter. It might be said that the so called agreement which the defendant proved was an attempt to prove the case which excused him from what prima facie was a breach of contract: in other words, in proving his agreement he might have been understood to say: "Yes, I have broken the terms of my agreement but my reason for doing so was the arrangement made by you that I should be allowed to do so." Whatever else may be said about the case, it seems to me to be very unjust on the part of the plaintiff in this case, the facts being what they are: the father having agreed to allow him to rebuild a more substantial building than that which existed on the land before and one of the sons now coming forward and trying to ignore the arrrangement made by the father.

The only question that remains is whether it is an agreement which modifies such a contract. "With very considerable hesitation I come to the conclusion that it does modify the contract and therefore in that sense was not admissible in evidence. But that does not dispose of the case. The plaintiff, as I have said, was among many joint proprietors and he alone sued as plaintiff. It is not a case in which the plaintiff being one of joint proprietors sues for a sum of money and his co-proprietor declines to join as a plaintiff and the plaintiff suing claims the full amount, but a case in which the co-proprietor of the plaintiff who is one of the defendants comes forward to support the defendants in proof of the agreement which the Judge in the Court below allowed the defendants to establish. That can only be construed as meaning that the co-proprietor who is on the side of the defendants is not enforcing the contract contained in the kabuliyat. In those circumstances it seems to me that the matter is covered by the decision that one of two joint lessors or lessees cannot enforce covenants of the lease. There are a number of decisions in India but I refer to the decision in T.M. Fairclough and Sons Limited v. Berliner (1931) 1 Ch D 60. It is true that in that case Maugham J. was construing the Law of Property Act of 1925 in England in which the word ''lease'' was used, but that is immaterial as it was declaratory of the common law and the question that arose was whether the lessee being entitled to relief against forfeiture out of a number of lessees would be entitled to such relief in the absence of a joint claim by his joint lessees, and it was held that he was not.

It was contended by Mr. Chatterjee on behalf of the respondents in this case that in the circumstances the plaintiff cannot enforce the term of the agreement relating to the erection of a thatched house. I think the contention is right. There is another aspect of the case which I have already stated at the commencement of my judgment, and that is that on the true construction of the kabuliyat it can be construed that only a lease from month to month was granted u/s 106.

It seems I therefore unjust in the circumstances that the plaintiff claimed that the structure to which he objected should be demolished; he should give the defendant a notice to quit. In my judgment the appeal fails and the action should be dismissed with costs.