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TMI Blog1974 (8) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to give effect to the same and deliver possession . Respondent 2 was also informed that under Clause 3 of the lease deed he will cease to pay rent six months prior to the above date of termination of the tenancy in adjustment of the advance paid by him. Respondent 2 replied on May 13, 1946, that he wished to exercise his option to renew the lease for a further period of five years. In continuation of this letter the lawyer of respondent 2 again wrote to the lawyer of the 1st respondent on September 16, 1946 that according to the present lease the terms and conditions of the fresh lease for 5 years to come into effect in pursuance of the right of option are to be and mutually agreed upon. The letter went on to point out : Of course, the main point is about the rent; and our client was expecting your client to propose the terms and waited so long. He has not yet heard from your client in the matter. Our client learns that your client is creating some self serving evidence in connection with the lease of the property: that apart our client is prepared to pay the reasonable rent subject to the modification in consideration of the heavy out-lay he has invested in convert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of the lease and for non payment of rent for which it gave a decree with interest, 3. Respondent 2 respondent 1 filed separate appeals in the High Court being Appeals Nos. 217 of 1948-49 and 50 of 1949 50 respectively. When these appeals were pending, respondent 1 executed a registered lease deed on August 16, 1950 in favour of respondent 2 purporting to be under a compromise. This lease deed was for 10 years in the first instance with an option to extend it for 5 years and thereafter for another 5 years, on a monthly rental of ₹ 1800/- Apart form this rent, respondent 2 was also to pay ₹ 45,650/at the rate of ₹ 1100/- p.m. from March 1, 1947 to August 16, 1950. 4. On August 21, 1950, after the lease was executed in favour of respondent 2, respondent 1 purported to cancel the lease in favour of the appellant and deposited ₹ 18,000/- in the appellant's Bank account on the same date, which, however, was returned by the appellant to the first respondent by cheque on September 4, 1950 On November 14, 1950, the respondent and the second respondent withdrew their appeals pursuant to compromise petition filed in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it applied the doctrine illustration as barring any remedy for the enforcement of Exhibit D. It said to para 5 : In the Court below, there was some controversy as regards the true character of Exhibit D. But in this Court all the parties are agreed which we think is the true position in law, that Exhibit D is an agreement of lease and not an agreement to lease . In other words as per Exhibit D, there was a demise in presenti. The fact that the property demised was to be delivered to the possession of the lessee at a subsequent date is irrelevant for the purpose of determining whether the agreement on question represents a lease or not. See, Narayan Chetty and Anr. v. Muthaiah Servai and Ors. 35 Mad. 63; Sultanali Mulla Rassoji v. Tyeb Pir Mahomed AIR 1930 Bom. 210; Ramjoo Mahomed v. Haridas Mullick and Ors. AIR1925Cal1087 . As per Section 105 of the Transfer of Property Act, delivery of possession of the property demised is not a condition precedent for coming into operation of a lease. In view of Exhibit D the plaintiff had obtained an interest in the property leased and he was entitled to sue for possession of the same on his own right, if there were no other leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of damages. But since the parties have argued this matter before us at some length, we think it appropriate pronounce on the same. It was further observed : Now that it has been held that the contract under Exhibit is void, the 1st defendant is bound to return the money advanced. He is also liable to pay reasonable interest thereon. If these passages give an impression that the learned Judges had treated Exhibit D as executory agreement incapable of specific performance because of frustration, that view cannot be regarded as correct. In our view on a correct it repetition of the lease, Exhibit D is a demise in presenti and on the basis the appellant would have been entitled to mesne profits because on the day when possession could have been given, the second respondent with full notice of the lease in favour of the appellant and with the knowledge that respondent, I had not renewed it continued in possession. It is not as if the later impediment created by the Rent Control Act precludes the first respondent from agitating his appeal as he was bound to in order to give effect to the demise granted by him to the appellant. As we have seen, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option to continue which shall be by written notice issued, and served on the land-lord six months prior to the expiration of the period of tenancy as stipulated above. The tenant shall pay one year's rent in advance for the extended period of 5 years and this advance shall be refunded to the tenant in the same manner as provided for in para 3 above. 8. The period of lease for ten years under Clause 4 should begin from a particular point of time which point of time cannot by any stretch of the argument be the date on which the lease was executed because Clause 2 notes the fact that the landlord is not in possession of the premises and has to put the appellant (tenant) in possession as soon as the lease was executed. Hence Clause 2 states that the landlord should take such steps as may be required to obtain and deliver possess on to the tenant (appellant) as soon as possible, which makes the giving of possession to the appellant the starting point of the lease. In other words for the purposes of Clause 4 the starting point of the lease for determining the period of 10 years is the obtaining of possession of the theatre. In any view of the matter the appellant is ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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