JUDGMENT

1. This is an appeal by the plaintiffs in a suit for specific performance of an agreement to grant a permanent lease, made orally on the 30th December 1908. There is no dispute as to the identity of the property, the annual rent fixed and the premium payable. A sum of Rs. 400 was paid on account of the premium on the day following the agreement but, though subsequently the plaintiffs tendered the balance, Rs. 900, the defendant declined to execute the lease. The plaintiffs were consequently driven to seek the assistance of the Court. The Court of first instance overruled the objections taken by the defence and made a decree for specific performance. On appeal the District Judge has set aside that decision on the ground that there was no concluded agreement, first, because, the time of the commencement of the please was not specified, and secondly, because the plaintiffs have failed to prove that they had tendered the balance of the premium within the period stipulated. Before this Court, the view taken by the District Judge upon each of these questions has been assailed by the plaintiffs as erroneous in law.

2. As regards the first question, the District Judge has held that in a contract for the grant of a lease, the date of the commencement of the lease is a material term, and if it does not appear in the contract, either expressly or by inference, the agreement is incomplete and incapable of specific performance. This view is in accord with that taken in the cases of Blore v. Sutton (1817) 3 Mer. 237 : 17 R.R. 74 : 36 E.R. 91 Nesham v. Selby (1872) 7 Ch. App. 406 : 41 L.J. Ch. 551 : 26 L.T. 568 and Lord Ormond v. Anderson (1813) 2 Ball.B 363 : 12 R.R. 103. Now, as was pointed out in White v. McMahon (1886) 18 L.R. Ir. 460 where reference was made to the decision in Marshall v. Berridge (1882) 9 Ch. D. 233 : 51 L.J. Ch. 329 : 45 L.T. 599 : 30 W.R. 9 : 46 J.P. 279 in English Courts this question has arisen principally in connection with the application of the Statute of Frauds. But as was explained by Sir Francis Maclean, C.J., in Ambica Prosad Dass v. J.C. Galstaun 4 Ind. Cas. 85 : 13 C.W.N. 326 : 6 M.L.T. 368 the Statute of Frauds has no application to this country and where there is an oral agreement to grant a lease, Section 92 of the Indian evidence Act does not stand in the way of proof that there has been an agreement, by implication or inferable from the circumstances, for the time of the commencement of the lease. Even in England sash inference has been permitted to be drawn from the surrounding circumstances; as, for instance, in the cases of under & Bailey's Contract, In re (1892) 3 Ch. 41 : 67 L.T. 521 : 61 L.J. Ch. 707 and Phelan v. Tedcastle (1885) 15 L.R. Ir. 169. We must consequently examine whether the circumstances of this case furnish an indication of what date was intended by the parties for the commencement of the lease, and here we must bear in mind that there was no suggestion at any stage in the primary Court that the contract was not complete because the date of the commencement of the lease had not been expressly stipulated; the objection was taken for the first time in the Court of Appeal below. It is plain, in view of the provisions of Section 110 of the Transfer of Property Act, that the intention of the parties must have been, in the absence of indication to the contrary, that the lease would take effect from the date of the execution of the instrument. This was formulated expressly in the plaint and was not challenged in the written statement. We are of opinion accordingly that the contract cannot be treated as other than a concluded agreement, though there was an absence of an express stipulation for the commencement of the lease. We may add that the Judicial Committee held in the case of Moulvie Mahomed Ikramull Huq v. Wikie 1 C.W.N. 946 : 17 M.L.J. 454 : 4 A.L.J. 740 : 6 C.L.J. 682 : 2 M.L.T. 448 that there was a concluded agreement, although the time of commencement of the lease was no