BHANDARI, J. -
(1.) THIS is a civil regular first appeal against the judgment of the Senior Civil Judge No. 2, Jodhpur, dated 26th July, 1960 dismissing the plaintiff-appellant's suit for specific performance of a contract.
(2.) THE plaintiff appellant is a partnership firm registered under the Indian Partnership Act. THE Rajasthan Government published a notice Ex. 1 dated 28th November, 1955, in the Rajasthan Rajpatra dated 3rd December, 1955 inviting offers from parties desirous of purchasing or taking on lease the factories mentioned in that notice. Para 7 of the notice mentioned that lease of the factories will be on the conditions mentioned in the schedule to this notice. THE first condition was that the lease would be for a period of 20 years with an option to renew the same for further period of ten years to be exercised by the lessee after six month's notice in writing. THE case of the plaintiff appellant is that in pursuance of the said notice, the plaintiff submitted a tender for obtaining the lease of the Government Ice and Aerated Water Factory at Jodhpur and the said tender was accepted by the Government. THE lease deed Ex. A-1 was executed between His Highness the Rajpramukh of Rajasthan and the plaintiff appellant on the 15th May, 1956 and was registered on the 31st December, 1956. It may be mentioned that the duration of the lease as mentioned in Ex. A-1 was three seasons from the date of the taking over possession upto 31st October, 1958. THE case of the plaintiff appellant further is that on the 29th April, 1958, it sent a notice to the Government of Rajasthan intimating to them that the plaintiff appellant was exercis"ng the option to renew the lease as mentioned in condition No. 1 in the Schedule to the notice published in the Rajasthan Gazette, but the Government informed the plaintiff appellant that such option could not be granted. THEreupon the plaintiff served a notice under S. 80 C. P. C. to the State. In the notice it was also mentioned that the plaintiff appellant claimed Rs. 4,000/- for getting the possession of the factory late and Rs. 8,000/- as damages on account of expenses incurred by it on the machinery of the factory. After serving the notice, the plaintiff filed the suit against the State of Rajasthan on the 26th November, 1958 praying that the present State of Rajasthan be ordered to renew the lease in favour of the plaintiff appellant for a period of ten years from the 31st October, 1958 and to execute a deed for the same and the plaintiff appellant further prayed for a decree for Rs 4000/ -.
The suit was contested by the State of Rajasthan. The case of the defendant is that the lease of the said factory was granted to the plaintiff for a period of three years only without any renewal clause. It was also contended that the tenders submitted by the plaintiff appellant were not accepted by the State but the lease was granted subject to the terms and conditions mentioned in Ex. A-1 which did not contain any provision for renewal of the lease. The other allegation about damages by the plaintiff was also denied.
The trial court dismissed the claim of the plaintiff so far as it related to a decree for specific performance but granted a decree for Rs. 972/2/ -. The plaintiff appellant has filed this appeal against the dismissal of the suit. No appeal has been filed on behalf of the State of Rajasthan.
The first point to be determined in this appeal is whether the plaintiff is entitled to any renewal of the lease. For the proper appreciation of the argument addressed to us by learned counsel for the plaintiff appellant on this point, we may quote the relevant portions of the Notice. Notice Ex. 1 with Schedule Jaipur November 28, 1955 No. F. 26 (8) C & I (B)/51 - The Government of Rajasthan invites offers from parties desirous of purchasing or taking on lease the following factories belonging to the Government of Rajasthan. 1. Ice and Aerated Water Factory, Jodhpur. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. The lease of the factories will be on the conditions mentioned in the schedule to this notice. . . . . . . . . . . . . . . . . . . . . . . . Schedule (Conditions of lease ) 1. The lease will be for a period of 20 years, with an option to renew the same for a further period of 10 years, to be exercised by the lessee after six months' notice in writing. 2. The lease money will be paid in advance every year. Interest on lease money not paid in time will be charged at the rate of 6 percent per annum. The lessee will have to furnish a reliable security (in the form of suretyship bond) for the payment of lease money. Lease deed Ex. A-l This deed of lease is made on fifth day of May, 1956 between H. H, the Rajpramukh of Rajasthan (hereinafter called the lessor) and Messrs Bankidas Moolraj & Co. , Jodhpur (hereinafter called the lessee) on the terms and conditions mentioned below : Whereas it is decided to lease out the Jodhpur Ice & Aerated Water Factory at Jodhpur more particularly described in an inventory plan attached to this deed as appendix 'a' to the lessee and whereas the lessee has agreed to enter into the said lease on the terms and conditions mentioned in the notification No. F. 26 (8) C & I (B) 51, dated 28-11-55 and herein below. Now this deed of lease witnesses as under : 1. The duration of the lease would be three seasons from the date of taking over possession upto 31st October, 1958. 2. The lessee shall pay to the lessor a sum of Rs. 7001/- (Rupees seven thousand and one) only per season. Lease money will be paid in advance every year on 1st April, Interest on lease money not paid in time will be charged at the rate of 6 per cent per annum. The lessees will have to furnish a reliable security (in the form of a surety bond) for the payment of lease money.
The contention of learned counsel for the plaintiff appellant is that in para 2 of the lease-deed Ex. A-l, it has been mentioned that the lessee had agreed to enter into the said lease on the terms and conditions mentioned in Notification No. P26 (8) C&i (B)/5l dated 28th November, 1955, and thus the terms and conditions mentioned in the Schedule form part of the lease including the term of renewal of the lease. The contention of learned counsel for the State is that para 2 of Ex. A-l is clearly a recital of the deed and the terms and conditions enumerated in the lease deed below this paragraph are in no way qualified by the contents of paragraph 2 which was inserted only for the purpose of showing the past history of the lease.
We may here point out that the plaintiff appellant has not placed on record the tender he submitted nor has he placed on record as to how the period of 20 years mentioned in the Schedule was curtailed to three years only. We may also point out that the terms and conditions mentioned in the operative part of Ex. A-l are not exactly the same as those contained in the schedule, for example in the schedule it was mentioned that the lease was to be for a period of 20 years with an option to renew the same for a further period of ten years while condition No. 1 in the operative part of Ex. P-l is that the duration of the lease would be three seasons from the date of taking over possession upto 31st October, 1958, and there is no provision for renewal. Similarly condition No. 2 mentioned in the schedule has been modified by giving the details of the lease money and also specified the date of the payment of the same. There are also slight changes in conditions Nos. 8, 9 and 10 mentioned in the Schedule. Condition No. 15 has been newly inserted in the lease deed. The point to be noticed is that all the conditions mentioned in the Schedule have received consideration while executing the lease deed and inserted therein with appropriate changes. It is not that Ex. A-l has omitted in its operative part to mention any of the terms and conditions mentioned in the Schedule to Ex. 1. Taking these circumstances into consideration and reading Ex. A-l as a whole, we are of the view that the entire set up of the terms and conditions which are mentioned in it in the operative part comprehensively deal about the rights and liabilities of the parties and that nothing has been left over to be determined with reference to the terms and conditions mentioned in the Schedule. Paragarph 2 of Ex. A-1 is not very artistically worded; yet no room for doubt is left that it was merely inserted by way of recital and did not form operative part of the document.
The rule of law is that the deed must be read and interpreted as a whole in order to extract the meaning of any particular part or expression. See 'the Construction of Deed and Statutes' by Sir Charles E. Odgers page 41. The same author at page 108 has pointed out that: "it is impossible by a recital to cut down the plain effect of the operative part of a deed. " In the Commissioners of Inland Revenue vs. Raphael (l), Lord Warrington stated the law on the subject after quoting passages from the speeches of the noble Lords in the case of Mackenzie vs. Duke of Devonshire (1896 A. C. 400) at page 134 thus : "i now come to the question argued on behalf of the appellants with much ingenuity and force whether the words in the operative part of deed are capable as a matter of construction of being controlled and modified so as to give effect to the intention of the setter declared by the recitals, the terms of which are quoted above. The principle of law in this respect is perfectly settled and it may be thought unnecessary to restate it or to refer to authority on such a point. But in deference to the arguments addressed to the House I will cite the opinions of certain noble and learned Lords expressed in the case of Mackenzie vs. Duke of Devonshire (1896 AC. 400 ). In that case an attempt was made by the appellants, to modify as a matter of construction clear and unambiguous words in the operative part by reference to the intention of the settlor as expressed in the narrative part of the deed. Lord Halsbury said (1896 AC 405): If the trust purposes are set forth in the paragraph of the deed which is appropriate to such purposes it seems to me to be absolutely unarguable that the true meaning of those words and the purposes of the trust so set forth can be in any way controlled qualified, or modified by the initial statement of what the motive of the author of the deed was. It would to my mind be disastrous to introduce such a system of construing a deed. One has known the language of a will somewhat perverted to perform the function which it was assumed the testator intended to be performed but I never in my life heard of the language of a deed which contained a perfectly unambiguous provision being twisted from the natural ordinary meaning of the words by a preliminary statement of what the maker of the deed intended should be the effect and purpose of the whole deed when made. " Lord Waston in the same case said (1896 AC 407): "the narrative words come to no more than this. My attention is to do so and so, and you may add this, 'and I have accomplished that purpose by the provisions which follow. " In such a case the safer and only legitimate course is to look to the provisions which follow, and to read them according to their natural and just construction. " Lord Davey said (1896 A. C. 408) : "i take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital or narrative of intention. " In our view the terms and conditions of the lease are mentioned in Ex. A-1 after the phrase "now this deed of lease witnesses as under". These terms and conditions are unambiguous and they are in no way controlled by paragraph 2 of Ex. A-1 which is merely a recital of the document. Jessel, M. R. in Dawes vs. Tredwell in 1881 Chancery Division p. 354 has put the law as follows: - "now the rule is that a recital does not control the operative part of a deed where the operative part is clear. The recital here as is usually the case, is in general terms: the operative part is in definite terms. There is another rule that the recital of an agreement does not create a covenant where there is an express covenant to be found in the witnessing part relating to the same subject-matter. If therefore, the covenant is clear, it cannot be controlled or affected by the recital. " Here the posit on is that what is mentioned in paragraph No. A-1 is a sort of a general recital while the term and conditions are more specifically laid down in the latter part of the document. We cannot take it that the terms and conditions as contained in the Schedule to Ex. 1 form the terms and conditions of the lease. Obviously under Ex. 1 the lease was to be for a period of 20 years, with an option of renewal for ten years, but the case of the plaintiff appellant itself is that the lease that was granted to it was for a period of three years only. Thus as against the vague and indefinite reference to the terms and conditions in paragraph 2 of Ex. A-1, we find the terms and conditions specifically and definitely stated in the operative part and this must govern the rights and liabilities of the parties.
Though care was not taken in drafting paragraph No. 2 of Ex. A-1 but we may state at the cost of repetition that while putting down the terms and conditions in the operative part it appears that the entire schedule to Ex. 1 was examined and what were to form the terms and conditions of the lease deed were inserted by the parties.
Learned counsel for the plaintiff appellant has urged that in a deed terms and conditions may be incorporated by reference to another document. He has referred to the following passage in Aktieselskabet Ocean vs. B. Harding and sons Ltd. (2) at page 394 of the report: "the incorporation of the terms is merely a shorthand method of expressing and creating rights and liabilities as between B and C by reference to the language of some other document. The document which contains the reference is to be read as if the wording of the document referred to were repeated therein, so as to create rights and liabilities as between the parties thereto. " We have no doubt that in some cases this may be a situation but in the present case it is not possible for us to incorporate all that contained in the schedule to Ex. 1 in Ex. A-1. The draftman of Ex-1 left it in no manner of doubt as to what was to be incorporated and it was expressly mentioned in the operative part thereof.
The learned counsel for the plaintiff appellant has further relied on the judgment of their Lordships of the Supreme Court in Md. Kamgarh Shah vs. Jag-dish Ghandra (3 ). It was a case in which in the opinion of their Lordships of the Supreme Court, there was ambiguity in the construction of a document and it was pointed out: "in cases of ambiguity it is necessary and proper that the court whose task is to construe the document should examine the several parts of the document in order to ascertain what was really intended by the parties. " We have applied this test to the present case. For the reasons that have been mentioned by us, we are left in no manner of doubt that what was intended to be the terms and conditions of the lease deed are mentioned in the operative part of Ex. A-1 and the plaintiff cannot claim any renewal for whatever period. The plaintiffs claim, therefore, for renewal of the lease for ten years has been rightly dismissed, by the trial court.
The second argument of learned counsel for the plaintiff appellant is that it deposited Rs. 7001/- under protest for the first season on the 5th May, 1956, when 2/3rds of the season for sale of ice was over, and, therefore, it is entitled to claim the refund of 2/3rds of 7001/ -. The trial court has taken the view that lease money was to be paid in advance every year on the 1st April, and, therefore, 1st April should be taken to be the date for the commencement of the season and taking this view of the matter it has held that the plaintiff was deprived of the use of the factory for a period of one month and four days. There is no doubt that Rs. 7001/- were to be paid as rent if the lessee worked for the full season. It has not been specified as to what period is to form a season. Vijay Raj one the partners of the plaintiff firm has appeared in the witness-box and stated that the season for manufacture and sale of ice starts as early as February and ends at the end of June. He has, however, added that the extent of the sale of ice in July and August is the same as in the month of February and March; but it becomes very much less in the month of September. In Ex. A-1 1st April is not fixed as the date for the commencement of the season and the trial court was wrong in taking this date as the date for the commencement of the season. Taking the view that season for the manufacture and sale of ice commences on the 1st February and ends by the end of October the plaintiff has been deprived of the use of the factory for l/3rd period of this one season. He is, therefore, entitled to claim Rs. 2333/5/.- He has been awarded a decree for Rs. 972/2 -. He is further awarded a decree for Rs. 1361/3 -.
No other point has been urged before this court.
(3.) THE result is that the appeal is partly allowed and it is accepted to the extent that instead of a decree for Rs. 972/2/-, the plaintiff will get a decree for Rs. 2333/5/- with proportionate costs in both the courts. THE claim for specific performance of the contract is dismissed with costs in both the courts. .;