- (1.) This is an appeal by the defendant in a suit for specific performance against the judgment and decree of the High Court of Judicature at Fort William in Bengal (Sir Trevor Harries C. J. and Mukherjea J.) dated 30-5-1948, dismissing his appeal and confirming, with certain modifications, the judgment and decree for specific performance passed by Ormond J. on 24-1-1947. There is no substantial dispute as to the facts leading up to the suit out of which the present appeal has arisen and they may shortly be stated :
(2.) Maharaja Sris Chandra Nandy of Cossimbazar is the owner of premises No. 374, Upper Chitpur Road, in the town of Calcutta (hereinafter referred to as the "said premises"). By an indenture of lease made on 27-4-1931, the Maharaja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised the said premises to one Madan Gopal Daga for a term of 51 years commencing from 1-5-1931, at and for the monthly rent of Rs.1,083-5-3 and upon terms and conditions contained therein. By sub-cl. (6) of cl. 2 of the said indenture the lessee covenanted, amongst other things "not to assign the demised premises or any part thereof without first obtaining the written consent of the lessor, such consent, however, not to be unreasonably withheld in the case of respectable or responsible person......" There was the usual proviso for re-entry for non-payment of rent for three months or for breach of any of the lessee's covenants, without prejudice to the lessor's right of action for such breach. On 25-3-1943 Madan Gopal Daga, with the written consent of the lessor, assigned the unexpired residue of the lease to the defendant who was accepted as the lessee by the lessor. By an agreement said to have been arrived at by correspondence exchanged between the plaintiff and the defendant and their respective solicitors between 27-1-1945 and 2-2-1945 the defendant is alleged to have agreed to assign the said lease to the plaintiff for the unexpired residue of the term with effect from 1-2-1945 at and for the price of Rs. 1,80,000 and upon terms and conditions contained in the correspondence to which reference will be made in greater detail hereafter. On 21-2-1945 the defendant wrote a letter to the lessor intimating that he had agreed to assign his interest in the lease to the plaintiff and requesting the lessor to give his consent in writing to such assignment. On 5-3-1945, the lessor replied that the question of his giving consent to the transfer of the lease could not be entertained as he had already determined the lease and that in the circumstances the whole initiative was in the hands of the defendant. This letter clearly indicated that the lease had been determined for non-payment of rents and it obviously implied that it was for the defendant to get the lease revived by paying up the arrears of rent so that the question of giving consent to an assignment of the lease might be considered by the lessor. On 8-3-1945, the defendant by his solicitors' letter informed the plaintiff's solicitors that the defendant had approached the lessor but had failed to secure his consent and that, as no valid transfer could be made without such consent and the agreement for sale was subject to such consent being obtained, the defendant was reluctantly compelled to cancel the agreement. The plaintiff by his solicitors' letter of 10-3-1945 maintained that the agreement was not subject to the alleged condition and that the defendant was not entitled to cancel the agreement. It was pointed out that under the terms of the lease the lessor could not refuse his consent to the transfer of the lease to a respectable or responsible person which the plaintiff undoubtedly was. It is not necessary to refer to the further correspondence that followed in which each party maintained his own contention. On 17- 3-1945 the lessor filed a suit (being suit No. 495 of 1945) in the High Court against the defendant for the recovery of the demised premises on the ground that the lease had been determined. It was during the pendency of that suit that on 4-7-1945 the suit for specific performance of the agreement to assign the lease out of which the present appeal has arisen was filed by the plaintiff against the defendant.
(3.) On 13-7-1945 the lessor's suit for ejectment was settled by the defendant consenting to a decree for Rs. 59-213-11-0 for arrears of rent which was paid up. There is no dispute that the forfeiture of the lease for non-payment of rent was waived and the lease was accordingly revived. Shortly after the settlement of the ejectment suit the defendant on 6-8-1945 applied to the lessor for his consent to the assignment of the lease and on the same day the lessor in reply declined to give his, consent without assigning any reason whatever. The suit for specific performance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned. It was eventually further heard in January 1947 and finally, disposed of on 24-1-1947 when Ormond J. passed a decree against the defendant for specific performance of the agreement. The decree provided that in the event of the defendant being unable within a fortnight from the date of the decree to obtain the written consent of the- lessor the assignment should be made without such consent. The defendant appealed. After two days' hearing, "in order to clear up the matter" the appeal Court gave the plaintiff "an opportunity to examine the Maharaja as a witness in this case so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to come to a proper decision on this point." The appeal was accordingly adjourned and the lessor was examined on commission and his evidence was fled in the proceedings. After further hearing the appeal Court dismissed the defendant's' appeal and confirmed the decree for specific performance of the agreement without the need for obtaining the consent of the lessor prior to the execution of the deed of assignment in favour of the plaintiff. This decree was subsequently amended by inserting therein a provision enabling the plaintiff to set off from the purchase price the amount of rent payable as and from 1-2-1945 until the date of conveyance less all outgoing and interest on the purchase price at 4 per cent. per annum from that date to the date of the conveyance. The defendant has now come up before us in appeal from the judgment and decree of the appeal Court.;