The covenant to renewal was found to be enforceable and apportionable, allowing assignees of a portion of the originally demised land to enforce it.

Venkatasubba Rao, J.

1. In both these appeals the Government is the appellant. There were two suits tried by the District Judge of South Malabar, one was a suit in ejectment by the Government and the other was a suit for specific performance by Messrs. Volkart Bros. These two suits arose out of the same set of facts and the learned District Judge dismissed the Governments suit for possession and decreed the suit of Messrs. Volkart Brothers for specific performance.

2. By an indenture, dated the 6th of June, 1821, between the United Company of Merchants in England trading in the East Indies on the one part and Mr. Francis Schuler of the other part, the said United Company granted a lease of land in British Cochin of the extent of four cawnis and odd for a period of 99 years to the said Mr. Schuler. The lease deed contains a clause for renewal which runs as follows:

And also he the said Mr. Francis Schuler, his heirs, administrators, or assigns fulfilling the covenants and agreements contained in the said indentnre and on his part to be performed and yielding at the end and expiration of the aforesaid term of 99 years unto the said United Company, their successors or assigns the full and just sum of 100 pagodas current money of Fort St. George, then the said lease should and might be renewed for a further term of 99 years upon such terms and conditions as should be judged reasonable.

3. Mr. Francis Schuler assigned his interest in the lease deed and there have been several subsequent assignments and in the year 1907 the entire leasehold interest became vested in Messrs. Volkart Brothers. In 1913 or 1914 the Government acquired 30 cents from Messrs. Volkart Brothers paying them a price of Rs. 1,538-2-0. Some time later on the 29th of October 1914 Messrs. Volkart Brothers by Ex. 2, assigned their leasehold interest in acres 3-70 to the Cochin Club receiving a sum of Rs. 18,461-14-0 as consideration. Ex. 2 provides that in a certain event the Cochin Club would be bound to convey to Messrs. Volkarb Brothers a small part of the premises assigned to them. I may observe that we are not concerned with this clause.

4. On the 5th June 1920, the period of the original lease expired. A few weeks before it actually expired, Messrs. Volkart Brothers requested the Government to grant them a renewal for a fresh period of 99 years in pursuance of the term in the lease deed. The Government replied that as the lands were required for Government purposes, the request of Messrs. Volkart Brothers could not be complied with.

5. In February 21 the Government filed a suit in ejectment and in November 21 Messrs. Volkart Brothers filed their suit for specific performance. Practically the same points were raised in both the suits.

6. The Government raised three points. (1) That Messrs. Volkart Brothers, who were bound to tender 100 pagodas (Rs. 350) tendered only Rs. 100 and that they thus committed default in regard to compliance with the terms of the lease deed relating to renewal. (2) The provisions in the lease deed that renewal shall be granted on such conditions as shall be judged reasonable is vague and uncertain and cannot be enforced. (3) (a) That the extent of the land in the possession of Messrs. Volkars Brothers was only acres 1-10, they having assigned to the Cochin Club acres 3-70 and that they are not consequently entitled to claim specific performance in respect of the land including the land that has been assigned to the Cochin Club. (b) It is also urged on behalf of the Government that Messrs. Volkart Brothers are not entitled to claim specific performance even in respect of acres 1-10 in their possession on the ground that there cannot be specific performance of a part of the contract.

7. In regard to the first point the matter stands thus. The term expired on 5th June 20. A few weeks before the expiry of the term, Messrs. Volkart Brothers wrote to the Collector of Malabar, a letter dated the 15th of May 20, Ex. 3. In that they said that