JUDGMENT Banerjee and Geidt, JJ. - This appeal arises out of a suit brought by the Plaintiff Appellant for a declaration that the Plaintiff was entitled to all the rights in the lease dated the 23rd July 1879 executed by the late Gunga Babu Debi; that the subsequent lease in favour of the Defendant No. 3 was invalid; that the Plaintiff was entitled to be substituted in place of the J Defendant No. 3 in suit No. 93 of 1888; and that the Plaintiff was entitled to recover possession in maurasi right of a twelve annas share of Lot Manirtat and mesne profits in respect of the same, or in the alternative that the Plaintiff was entitled to possession of a one-third share of the said property. 2. The main allegations upon which the suit is based are, that Gunga Bahu Debi was owner of a twelve annas share of Lot Manirtat, which was mortgaged to the Defendants Nos. 4 to 6; that with a view to redeem the said property she granted to Jogeswar Bose on the 23rd July 1879 a maurasi mukarari lease in respect of the same, stipulating with Jogeswar Bose that she should institute a suit with the help of Jogeswar Bose for redemption of the property and that upon possession being recovered Jogeswar Bose should hold it in maurasi right upon payment of a certain rent; that Jogeswar Bose then obtained on payment of Rs. 1,200 a deed of relinquishment from Kissen Pershad Rora, the reversionary heir of Ganga Bahu Debi husband; that subsequently on the 2nd April 1880 (sic) the father of the Defendant No. 3 and Jogeswar Bose entered (sic) an ekrarnamah, in which it was stipulated that Chunnamal should bear the costs to be incurred in the contemplated redemption suit and in return obtain from Jogeswar Bose a two-thirds share in the maurasi tenure; that upon the death of Jogeswar Bose and his son, Poresh Nath Bose, his estate having devolved upon his minor grandsons and Chunnamal, having also died, the Defendant No. 3, with the intention of defrauding the said minors, instituted suit No. 93 of 1888 for the redemption of the aforesaid mortgage and induced Ganga Bahu Debi to execute in his favour a maurasi mukarari pottah; that the said pottah was invalid; and that the Plaintiff as purchaser from the surviving minor sons and the widow of Poresh Nath Bose, the son of Jogeswar Bose, in whom the rights under the pottah of 3rd July 1879 had become vested, was entitled to these rights and this suit was instituted by him to obtain the reliefs mentioned at the outset. 3. The suit was brought against the Defendant No. 3 as principal Defendant; the first Defendant was made a party as claiming to be the heir of Ganga Bahu Debi's husband; the second Defendant was made a party as devisee under the will of Ganga Bahu Debi; and the Defendants Nos. 4 to 6 were made parties as mortgagee's, or the representatives of the mortgagees, to whom Lot Manirtat had been mortgaged. We may here observe that it having been found in a previous litigation that Lot Manirtat was the stridhan of Ganga Bahu Debi, the first Defendant Earn Chand was not a material party to the suit, nor is there any contest with the second Defendant, Shama Bibi, now in this appeal, although in the Court below she disputed the Plaintiff's title. 4. For the purposes of this appeal the defence that is necessary to be considered is that of Defendant No. 3. 4. For the purposes of this appeal the defence that is necessary to be considered is that of Defendant No. 3. Shortly stated, it was to the following effectthat the lease relied upon by the Plaintiff to did not effect any transfer of the property leased, but was only an agreement to give a lease and the Plaintiff's predecssors not having performed their part of the contract, the Plaintiff is not entitled to enforce his rights under it; that the ekrarnamah of Chunnamal relied upon by the Plaintiff is not genuine and the Plaintiff is not entitled to any relief under it; that the lease in (sic) of the answering Defendant was valid and binding; and the Plaintiff was only a benamdar of the Defendants Nos. 4, 5 and 6 and was not entitled to maintain the suit. 5. The Court below has held that the Plaintiff was only a benamdar of the Defendants Nos. 4, 5 and 6; that the lease upon which the Plaintiff based his title was not a lease, but merely a contract to grant a lease; that the authority under which that lease was registered having been revoked before the registration of the document, it became inoperative and that the Plaintiff was not entitled to any relief under that contract, neither he nor his predecessors-in-interest having done anything to fulfil their part of the contract. The Court below has further found that the Plaintiff was not entitled to any relief in the alternative under the ekrarnamah of Chunnamal, as it was not a registered document and could not be operative in creating an interest in land. And it has accordingly dismissed the Plaintiffs' suit and made the Plaintiffs and the Defendants Nos. 4 to 6, whose benamdar it has found the Plaintiff to be, jointly liable for the costs of the other Defendants. 6. Against this decision of the Court below the Plaintiff has preferred appeal No. 375 of 1899 and the Defendants Nos. 4 to 6 have preferred appeal No. 377, of 1899. 7. We shall take up the two appeals separately. Appeal NO. 375 of 1899. 8. In this appeal it is contended for the Appellants (1) that the Court below is wrong in holding upon the evidence that the Plaintiff was the benamdar of the Defendants Nos. 4 to 6 have preferred appeal No. 377, of 1899. 7. We shall take up the two appeals separately. Appeal NO. 375 of 1899. 8. In this appeal it is contended for the Appellants (1) that the Court below is wrong in holding upon the evidence that the Plaintiff was the benamdar of the Defendants Nos. 4 to 6; (2) that even if the Plaintiff was the benamdar of the Defendants Nos. 4 to 6, the Court below is wrong in holding that he was not entitled to maintain this suit; (3) that the Court below is wrong in holding that the powers of the agent appointed to admit execution (sic) before the Registrar had been revoked and that the lease has consequently become inoperative; (4) that the Court below is wrong in holding that the lease did not transfer any immovable property, but merely amounted to a contract to grant a lease; (5) that the Court below is wrong in holding that the Plaintiff was not entitled to obtain specific performance by reason of the laches of his predecessors-in-interest; (6) that the Court below is wrong in holding that the ekrarnamah of Chunnamal was inadmissible in evidence and inoperative upon the question of the alternative relief claimed by the Plaintiff. 9. On the other hand, it is argued for the Respondent, the Defendant No. 3, that not only is the Court below right in its judgment, so far as that judgment goes, but that the judgment may be further supported on three additional grounds, (1) that the contract of Jogeswar Bose was of a personal nature and that the right to enforce specific performance did not pass to his heir or assignee; (2) that the alternative relief was inconsistent with the main claim put forward by the Plaintiff; (3) that the Plaintiff has not acquired any right to this alternative relief under the deed of sale propounded by him. 10. The ease has been very fully and ably argued before us on both sides. The points that arise for determination upon the contentions urged are (1) whether, as a matter of fact, the Plaintiff is a benamdar of the Defendants Nos. 10. The ease has been very fully and ably argued before us on both sides. The points that arise for determination upon the contentions urged are (1) whether, as a matter of fact, the Plaintiff is a benamdar of the Defendants Nos. 4 to 6; (2) if that is so, whether, as a matter of law, the Plaintiff is entitled to maintain this suit; (3) whether the authority of the agent appointed to admit execution of the lease of the 23rd July 1879 had been revoked before the registration of that document and if so, what was the effect of such revoeanon; (4) was the lease of the 23rd July 1879 operative in transferring to the lessee the property, which it purported to lease? or was it only in the nature of a contract to grant a lease? (5) If it was of the latter sort, could the right to enforce specific performance be claimed by the representative in interest of the grantee? or was such right claimable only by the person, with whom the contract was made? (6) Even if the right to obtain specific performance could be claimed by the legal representative of the party with whom the contract was made, was not such right lost by reason of the grantee and his representative not having done anything to perform their part of the contract? (7) whether the alternative relief claimed was inconsistent with the main relief; (8) whether the Plaintiff was, under the kobala, upon which the suit is based, entitled to the alternative relief; and (9) whether the ekrarnamah of Chunnamal was admissible in evidence in support of the claim for alternative relief and whether the Plaintiff was entitled to any such relief. 11. Upon the first point the evidence has been placed before us and we feel bound to say that not only is it wholly insufficient to prove that the Plaintiff was a benamdar for the Defendants Nos. 4 to 6, but it is insufficient even to raise any reasonable suspicion that he was a benamdar. In this view of the case it is unnecessary to consider the second point; but as the contention has been raised by the learned vakil for the Appellant that the decision of this Court in the case of Hari Gobind Adhikary v. Akhoy Kumar Mozumdar ILR (1889) Cal. In this view of the case it is unnecessary to consider the second point; but as the contention has been raised by the learned vakil for the Appellant that the decision of this Court in the case of Hari Gobind Adhikary v. Akhoy Kumar Mozumdar ILR (1889) Cal. 364, to which I was a party and which may be cited in support of the view that a benamdar cannot maintain a suit for possession, is based upon an erroneous view of certain observations of the Judicial Committee in the case of Gopee Krist Gosain v. Gunga Persaud Gosain (1854) 6 M.I.A. 53, I take this opportunity to correct that error and to show that, notwithstanding the error pointed out, the conclusion arrived at in that case is correct. In my judgment in that case I said.: "As pointed out by the Judicial Committee in the case of Gopee Krist Gosain v. Gunga Per mud Gosain (1854) 6 M.I.A. 53, a distinction has sometimes been made between suits upon bonds by benamdars and suits for recovery of land upon title and in this latter class of cases it has alway been held that a benamdar is not entitled to maintain the suit." The passage in the judgment of the Judicial. Committee is that at page 72 of vol. VI of Moore's Indian Appeals, where reference is made to Mr. Justice Hyde's notes from Morton's Decision, page 249. We referred to the passage second-hand without referring to Morton's Decisions. I now find on reference to the note in Morton's Decisions that the view I then took was not correct and that the view taken by the Supreme Court was that in cases of dispute about land the benamdar, that is, the party in whose name the title-deed was, was entitled to maintain a suit. But although that was so that was in accordance with the practice of the Supreme Court, in which the distinction between legal title and equitable title was a well-recognised distinction then. We do not, however, think that that would affect the correctness of the decision in the case of Sari Gobind Adhikary v. Akhoy Kumar Mozumdar ILR (1889) Cal. 364. But although that was so that was in accordance with the practice of the Supreme Court, in which the distinction between legal title and equitable title was a well-recognised distinction then. We do not, however, think that that would affect the correctness of the decision in the case of Sari Gobind Adhikary v. Akhoy Kumar Mozumdar ILR (1889) Cal. 364. In the mofussil and I should say generally in the Courts of this country, the benamdar is treated merely as a person in whose name any property stands, without his having any legal or equitable title in the same. That being so, there is no reason for holding that a benamdar is entitled to maintain a suit. Of course, where a suit has been allowed to be brought by a benamdar, the decree in such suit has been held to be binding on the beneficial owner. That is a very different thing from holding that a benamdar as such is entitled to maintain a suit for recovery of possession of property, of which he is merely a benamdar. Although come of the inconveniences arising from a benamdar being permitted to sue may be met, that is no reason why a person who has no right to any property should be held entitled to maintain a suit for recovery of the same. The reason for the decision in the case of Hart Gobind Adhikary v. Akhoy Kumar Mozumdar ILR (1889) Cal. 364 remains unshaken, although one of the authorities cited in support of the view happens not to be an authority in favour of that view. There is no doubt some conflict, more apparent than real, in the decisions of this Court on this point. The cases of Prosunno Coomar Roy Chowdhry v. Gooroo Churn Sein (1865) 3 W.R. 159, Fuzeelun Beebee v. Omdah Beebee (1868) 10 W.R. 469, Issur Chunder Butt v. Gopal Chunder Das ILR (1897) Cal. 98 and Baroda Sundari Ghose v. Dino Bandhu Khan ILR (1898) Cal. 874, besides the case of Sari Gobind Adhikary v. Akhoy Koomar Mozumdar ILR (1889) Cal. 364, are in favour of the view we take, whilst the case of Ram Bhurosee Singh v. Bissesser Narain Mahata (1872) 18 W.R. 454, which, at best, only suggests a doubt as to the correctness of that view, the case of Bhola Pershad v. Ram Lall ILR (1896) Cal. 364, are in favour of the view we take, whilst the case of Ram Bhurosee Singh v. Bissesser Narain Mahata (1872) 18 W.R. 454, which, at best, only suggests a doubt as to the correctness of that view, the case of Bhola Pershad v. Ram Lall ILR (1896) Cal. 34, in which, however, the beneficial owner was subsequently added as a party Plaintiff and the case of Sachitananda Mohapatra v. Baloram Gorain ILR (1897) Cal. 644, in which none of the earlier cases is referred to, may be cited as lending support to the Appellant's contention. The balance of authority in this Court is therefore clearly in favour of the view we now take. As for the case of Ravji Appaji Kulkarni v. Mahadev Bapuji Kulkarni ILR (1897) Bom. 672, there also the beneficial owner was subsequently added as a party; and with reference to the two Allahabad cases, Nand Kishore Lal v. Ahmad Ata ILR (1895) All. 69 and Yad Ram v. Umrao Singh ILR (1899) All. 380, with all respect for the learned Judges who decided them, we must say that we are unable to agree in the view they have taken. In the latter of these two cases the learned Chief Justice says: "Now I do not propose to discuss which of these conflicting views I should follow, if the question were res Integra. I propose to deal with it simply on the authorities." As we have already observed, we do not see any reason in favour of the opposite, view. Dealing with the question as depending for its determination on the balance of authority, we find that so far as this Court is concerned, it is in favour of the view we take. 12. Upon the third question, namely the question of revocation, the learned Subordinate Judge in the Court below is of opinion that Tarini Das Roy Chowdhury, the agent, whose authority was revoked, is the same person as Tarini Churn Ghatak, who was authorised to admit execution of the lease in question before the registering officer and who did adroit such execution on behalf of Ganga Bahu Debi. The oral evidence on the record is, however, insufficient to warrant any such inference; and the evidence furnished by the lease in favour of the Defendant No. 3 (we have referred to, the original) clearly goes to establish the fact that the two persona were not the same, but were different individuals; that document showing that whereas the name of Ganga Bahu Debi was written by the pen of Tarini Das Roy Chowdhury, Tarini Churn Ghatak was an attesting witness t o it. This shows that the revocation of the authority of Tarini Das Roy Chowdhury could not in any way have affected the authority given to Tarini Churn Ghatak. We may add that, even if the authority of Tarini Churn Ghatak had been revoked, there being nothing to show that such revocation had been made known either to Jogeswar Bose or to the registering officer, it could not take effect, regard being had to the provisions of Section 208 of the Contract Act; and upon this consideration the case of Mujibunissa v. Abdur Rahim ILR (1900) All. 233, which may be cited on the other side as showing that the registration was invalid, is distinguishable from the present. 13. We come now to the fourth point mentioned above, namely whether the lease to Jogeswar Bose operated as immediate transfer, or was only in the nature of a contract to be performed in future and upon the happening of a contingency--a contract of which the grantee might claim specific performance, if he came into Court showing that he had himself done all that he was bound to do. Upon this point, having regard to the terms of the lease, we are clearly of opinion that the document was not operative in effecting a present transfer of the property leased, but was only a contract to be performed in future. The view we take is amply supported by the decision of the Privy Council in the cases of Rajah Sahib Perhlad Sein v. Doorga Persaud Tewarree (1869) 12 M.I.A. 286 and Ranee Bhobo Soondree Dasseah v. Issur Chander Dutt (1872) 11 B.L.R. 36. It was contended by the learned Vakil for the Appellant that these two cases have been subsequently explained by their Lordships of the Judicial Committee in the case of Kali Das Mullick v. Kanhaya Pundit ILR (1884) Cal. It was contended by the learned Vakil for the Appellant that these two cases have been subsequently explained by their Lordships of the Judicial Committee in the case of Kali Das Mullick v. Kanhaya Pundit ILR (1884) Cal. 121 in which their Lordships held, that delivery of possession was not necessary to complete a transfer of immoveable property. 14. That may be quite true, but here the defect in the transaction consisted not merely in want of delivery of possession, but in other important respects. 15. The subject-matter of the contract was property not only not in the possession of the transferor, but was property to which the transferor might never establish a title, namely, a title to redeem. The document provides that a suit was to be brought to redeem the property and upon possession being recovered the rents agreed upon should become payable. The case therefore clearly comes within the scope of the rule laid down in the earlier cases decided by their Lordships. The case of Kali Das Mullick v. Kanhaya Lal Pundit ILR (1884) Cal. 121 has no bearing upon it, as that was a case in which the donor's title to the land was not at all in question. 16. That being, then, the nature and effect of the so-called lease, the question next arises whether the right created by it, namely the right in the grantee to claim specific performance, was a right only personal to him, or whether it can be claimed also by his legal representative. 16. That being, then, the nature and effect of the so-called lease, the question next arises whether the right created by it, namely the right in the grantee to claim specific performance, was a right only personal to him, or whether it can be claimed also by his legal representative. Upon this point Section 23, Clause (b) of the Specific Relief Act [we quote only so much of the clause as bears upon the case] provides that specific performance of a contract may be obtained by the representative-in-interest of any party thereto, provided that where any personal quality of such party is a material ingredient in the contract, his representative-in-interest "shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed." In the present case it appears to us clear from the terms of the lease of the 23rd July 1879 as well as from the terms of the power of attorney of even date executed by Ganga Bahu Debi in favour of Jogeswar Bose, that the personal quality of the grantee of these two documents and the confidence which the grantor had in him, formed a material consideration: for in Clause 7 of the lease the grantor says:--" As you have agreed to pay all expenses for the institution of the suit against the aforesaid Kishori Mohun Roy and others, I grant this maurasi mukurari ijara pottah without any bonus and as you have consented to undergo all the labour necessary for that purpose, I make the settlement with you on the terms aforesaid." In other words, it was a settlement made in favour of the grantee, because of his consenting to undergo all the labour necessary for the conduct of the litigation with the mortgagees and the settlement is made without bonus in consideration of his agreeing to pay all the expenses of the litigation. The lease further provides in Clause 4 that the lessor shall have no right to compromise the redemption suit, but that the power of compromising the suit or withdrawing it was exclusively entrusted to the lessee. This goes clearly to show that the personal quality of the party with whom the contract was made was a material ingredient in the contract. We may in this connection refer to Pollock's Principles of Contract (7th edition), page 471. This goes clearly to show that the personal quality of the party with whom the contract was made was a material ingredient in the contract. We may in this connection refer to Pollock's Principles of Contract (7th edition), page 471. In this view of the case the right to enforce specific performance ceased to exist upon the death of Jogeswar Bose. 17. But even if it did not so cease, we are clearly of opinion that the right was lost by reason of the delay and laches on the part of Jogeswar Bose and his successors and this brings us to the consideration of the sixth point mentioned above. It was argued by the learned Vakil for the Appellant that as time was not mentioned in the contract as the essence of it, delay or laches could not operate to the prejudice of the party, with whom the contract was made, unless and until the other contracting party called upon him to perform his part of the contract. That may be the general rule, but in the present case there are two things to be taken into consideration. In the first place does not the contract itself from its very nature and terms show that it was not intended that there should be any further call upon Jogeswar Bose to take steps to institute the redemption suit and to perform his part of the contract? The lady, as appears from the power of attorney, was residing at Benares; she had not funds enough to carry on the redemption suit and she had no one to look after such suit nor was it easy for her to come to the 24-Pergunahs. She left it to Jogeswar Bose, the lessee, to institute such suit and to defray the expenses thereof; and she empowered him by the power of attorney to do all that was necessary to be done on her behalf for the conduct of the suit. There is one other matter appearing on the face of the lease itself which goes to show that it was the bounden duty of Jogeswar to institute the suit at the earliest possible opportunity. There is one other matter appearing on the face of the lease itself which goes to show that it was the bounden duty of Jogeswar to institute the suit at the earliest possible opportunity. The lease provides on the one hand that the rent reserved shall become payable to the lessor only from the date that possession is obtained by the lessee; and on the other hand that all mesne profits recoverable from the mortgagees in possession should belong to the lessee. It was therefore the interest of Jogeswar Bose to put off the institution of the suit as long as he could: for then he would be entitled to the mesne profits of the property without having to pay anything in the shape of rent. When that was the portion in which he was placed, fairness and honesty required that he should institute the suit without delay: and it could not very well be said that he was under no obligation to institute the suit, until he was required by a fresh call to do so. The contention of the learned Vakil for the Appellants that the delay cannot be prejudicial in a case where time is not of the essence of the contract cannot therefore be raised in a case like this. The fact was that, although Jogeswar was living for nearly three years after the date of the lease, he did not take any direct step for the institution of the intended redemption suit and his subsequent conduct goes to show that he was not prepared to take any effective step towards the institution of the suit, for the only thing he did in furtherance of his contract with Ganga Bahu was to enter into the ekrarnamah with Chunnamal on the 2nd of April 1880, stipulating that Chunnamal was to pay all the expenses of the litigation. The truth is, that Jogeswar entered into this speculative transaction without any present means of performing his part of the contract. He did nothing to perform his part of the contract; and now the assignee of his grandson comes to claim the benefit of the contract when another person has, by incurring expense and undergoing trouble, succeeded in obtaining a decree. He did nothing to perform his part of the contract; and now the assignee of his grandson comes to claim the benefit of the contract when another person has, by incurring expense and undergoing trouble, succeeded in obtaining a decree. We do not think that the Court would be exercising the judicial discretion vested in it by Section 22 of the Specific Relief Act rightly, if it allowed such a claim as this. It has been held in English Courts that a party cannot call upon a Court of Equity for specific performance, unless he shows himself "ready, desirous, prompt and eager." It cannot be said that the Plaintiff has shown that he or his predecessors had been so for the 18 years between the date of the contract and the date of the suit [see on this point, Fry on Specific Performance of Contracts, Sections 1100 to 1102]. 18. We come next to the last three points in the case which relate to the question of alternative relief. It was argued by the learned Yakil for the Appellant that whatever difficulty there may be in the way of the Plaintiffs obtaining the full relief claimed' his right to the smaller measure of relief claimed in the alternative could not be questioned, that right being a right to a one-third of the maurasi tenure under the ekrarnamah executed by Chunnamal, the father of the Defendant No. 3, in favour of Jogeswar Bose. Now with reference to this claim it is open at the outset to the objection that it is inconsistent with the other relief claimed. Indeed, the proper way to have claimed these two alternative reliefs was for the Plaintiff to have said that he meant to treat the ekrarnamah of the 2nd April 1880 as a binding document; that under that document he was entitled in the first instance to a one-third of the maurasi tenure, but that, if the ekrarnamah was denied by the Defendant No. 3 and if the Court found that document not proved, in that case the Plaintiff might be held entitled to the whole of the maurasi tenure under the lease in favour of the Plaintiff's predecessor in title, Jogeswar Bose. That, however, was not the way in which the alternative reliefs were claimed. That, however, was not the way in which the alternative reliefs were claimed. But the defect was cured by the learned Vakil for the Appellant electing to claim the smaller measure of relief in the first instance in his argument before us, so the technical objection may perhaps be overruled. But then there arises the question whether the Plaintiff is entitled to this relief under the kobala upon which he bases his title. The kabala makes no reference to the ekrar between Jogeswar and Chunnamal. We were told, however, to construe the terms of the kobala liberally and not literally and to hold that, as the Plaintiff's vendors did not mean to reserve any right that they might have to the maurasi tenure, when making the transfer in favour of the Plaintiff the Plaintiff has not only acquired his vendors' rights under the lease of the 23rd July 1879, but also acquired the rights created by the ekrarnamah of the 2nd April 1880. We are inclined to accept the Appellant's contention so far; but then does it really avail the Plaintiff Appellant, if, as we have held, the lease of the 23rd July 1897, or rather the contract evidenced by the document, was one, whereof specific performance could not be claimed by the heirs or assignee of Jogeswar Bose and if the right created by the contract consequently came to an end upon the death of Jogeswar Bose? Although the ekrarnamah of the 2nd April 1880 is expressly said to be binding upon the heirs and legal representatives of Jogeswar and Chunnamal, the consideration for the contract embodied in that document, namely, the right to participate in the maurasi to be obtained by Jogeswar ceased to exist and would it be right to enforce the contract, although the consideration for it has ceased to exist? We must answer that question in the negative. 19. It was argued that the position of Chunnamal's heir, Defendant No. 3, was that of a co partner with Jogeswar's legal representatives in a common venture and that the lease subsequently obtained by the Defendant No. 3 must be held to have been taken by him, not only for himself, but for himself and for his co-partners, for whom he was a constructive trustee. We do not think that the doctrine of co-partnership and of constructive trust should be applied to cases like this. We do not think that the doctrine of co-partnership and of constructive trust should be applied to cases like this. The community of interest ceased with the cessation of the right to enforce specific performance of the contract under the original lease with Jogeswar upon Jogeswar's death; and that being so, Jogeswar's representatives cannot claim any right as against Chunnamal's representatives. In saying what we have just said, we have assumed that the ekrarnamah of the 2nd April 1880 was admissible in evidence, notwithstanding that it was an unregistered document, an assumption which is in accordance with the view we have taken of the lease of Jogeswar being only in the nature of a contract to be performed in future. The right created by the ekrar should also be treated as being in the nature of a right to obtain specific performance of a contract and not a right to obtain a share of any property, which, had been acquired by Jogeswar, arid if that is so, the claim of the Plaintiff to this g alternative relief must be viewed in the nature of a claim for specific performance as against the Defendant No. 3 and to such a claim Clause (2) of Section 22 of the Specific Belief Act would in our opinion be a complete answer; for the performance of the contract would involve hardship on the Defendant, which he did not foresee, whereas its non-performance would involve no such hardship on the Plaintiff. For to enforce specific performance of the contract now would be to oblige the Defendant No. 3 to give the Plaintiff a share of the maurasi tenure he has obtained, which is a much more burdensome one than the tenure of which he was originally content to have only his share, the rent reserved in the second lease being Rs. 1,100, whereas the rent of the first lease was only Rs. 600. The Defendant No. 3, moreover, cannot get the whole of the costs and mesne profits to be recovered, but only three-fourths of that amount; and he will have to give to the Plaintiff a share in the under-tenure and the costs and mesne profits, without the Plaintiffs having had to undergo any expense, trouble or risk. 600. The Defendant No. 3, moreover, cannot get the whole of the costs and mesne profits to be recovered, but only three-fourths of that amount; and he will have to give to the Plaintiff a share in the under-tenure and the costs and mesne profits, without the Plaintiffs having had to undergo any expense, trouble or risk. We are therefore of opinion that the claim for the full relief as well as that for the alternative relief have been rightly dismissed by the lower Court; and this appeal must consequently be dismissed with costs. Appeal No. 377 or 1899. 20. This is an appeal by the Defendants Nos. 4 to 6 and it relates to the question of costs, their contention being that they have been wrongly made liable along with the Plaintiff for the costs of the other Defendants, as they had nothing to do with the claim. "We think that this contention must be given effect to. We have already, in our judgment in Appeal from Original Decree No. 375 of 1899, said that it is not at all shown that the Plaintiff is a benamdar for the Defendants Nos. 4 to 6. That being so, there is no reason why the Defendants Nos. 4 to 6 should be saddled with the costs of the other Defendants. The decree of the Court below, so far as it makes them liable for the costs of the other Defendants, must therefore be set aside. We make no order as to the costs of this Court.