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1913 Supreme(Cal) 183
CALCUTTA HIGH COURT
Jenkins, C.J, Mookerjee, J.
Ameer Ali - Appellant
Versus
Yakub Ali Khan - Respondent
Decided On : 11-07-1913
Headnote:
Evidence - Tenancy - Transfer of Property Act, 1882 - Section 107, Evidence Act, 1872 - Section 92
Fact of the Case:
The plaintiff sued the defendant to recover rent. The defendant had executed a kabuliyat (lease agreement) on 6th July 1898, which was not registered and never came into operation. The plaintiff claimed rent at the rate of Rs. 4 per month.
Finding of the Court:
The court held that oral evidence was admissible to prove the rent agreed upon by the parties, even though the kabuliyat was not registered and did not come into operation under Section 107 of the Transfer of Property Act. The court relied on the principle that a tenancy can be proved without proving the lease, if there is one, which is in accordance with the settled law in England.
Issues: Whether oral evidence was admissible to prove the rent agreed upon by the parties, despite the kabuliyat not being registered and not coming into operation under Section 107 of the Transfer of Property Act.
Ratio Decidendi: Section 92 of the Evidence Act, which prohibits the admission of oral evidence to contradict or vary the terms of a written document, does not apply in this case. A tenancy can be proved without proving the lease, if there is one, and the rent agreed upon by the parties can be established through oral evidence.
Final Decision: The decree of the lower court was confirmed, and the plaintiff was awarded the rent at the rate of Rs. 4 per month.
JUDGMENT
Mookerjee, J. - 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 states that the defendant had on the 6th of July 1898 executed a kabuliyat 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 kabulayat was not registered and consequently never came into operation u/s 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 v. Rai Chandra Pal 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. Poison (1815) H.N.P.47 that where a rent is 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 that the suit has been rightly decreed.
3. The decree of Mr. Justice Coxe will, therefore, be confirmed with costs.
Jenkins, C.J.
4. concurred.
