Judgement Appeal (No. 79 of 1930) from a decree of the High Court (August 19, 1928) affirming a decree of the District Court of 24 Parganas (February 13, 1926) which reversed a decree of the Subordinate Judge. The appellants were the owners of a 12-anna undivided share in three plots of land, the pro forma respondents Nos. 2 and 3 being the owners of the remaining 4-anna share. In circumstances which appear from the judgment of the Judicial Committee respondent No. 1 instituted a suit against the appellants and the pro forma respondents claiming an order for the execution of an amalnamah in his favour as to the property in the terms of a kabuliyat which he had executed, possession, Rs.600 as compensation for loss of profits, and further relief. The Subordinate Judge dismissed the suit on the ground that no contract was established. The District Judge affirmed the finding that the owners of the 4-anna share had not authorized a lease; he was of opinion, however, that the owners of the 12-anna share having sanctioned the lease without reservation, the plaintiff was entitled to a decree against them declaring the plaintiff lessee of that share, also to a return of one-quarter of the salami, and mesne profits on the 12-anna share. The High Court (Suhrawardy and Garlick JJ.) affirmed the decree of the District Judge. 1931. Oct. 23, 27, 28. Dunne K.C. and Dube for the appellants. There was no contract concluded. Both parties believed that the consent of the other owners would be given. Upon the evidence the consent of the owners of the 4-anna share was a condition to any agreement. Having regard to provisos 1 and 3 to s. 92 of the Evidence Act, oral evidence to establish that condition was admissible Guddalur Ruthna Mudaliyar v. Kunnattur Arumuga Mudaliyar (( 1872) 7 Mad. H. C. 189, 196.) ; Pym v. Campbell.(( 1856) 6 E. & B. 370.) The finding of the District Court that there was a contract by the appellants was one of mixed fact and law, and was not binding Damusa v. Abdul Samad.(( 1919) L. R. 46 I. A. 140.) But even if there was a binding contract it was an indivisible contract as to the whole property, and did not warrant the decree made. The suit was really one for specific performance, and governed by the Specific Relief Act, 1877. The suit was really one for specific performance, and governed by the Specific Relief Act, 1877. As held by the High Court, ss. 14, 16, 17 did not apply; further s. 15 did not apply, as the plaintiff had not relinquished all other claims, as required by the proviso Graham v. Krishna Chunder Dey.(( 1924) L. R. 52 I. A. 91.) The decree was based upon a contract different from that alleged, and was therefore invalid Official Trustee of Bengal v. Krishna Chunder Mozoomdar.(( 1885) L. R. 12 I. A. 166,169.) Hyam for the first respondent. The appellants contracted in terms as to the whole property. The evidence does not show that the appellants made consent-by the other owners a condition; evidence to that effect was not admissible under s. 92. Under s. 108a (a) of the Transfer of Property Act the appellants were bound to tell the respondent of the defect. In any case the District Judge found that the appellants contracted unconditionally, and his finding was binding in second appeal Durga Choudhrain v. Jawahir Singh Choudhri (( 1890) L. R. 17 I. A. 122.) ; Nafar Chandra Pal v. Shukur.(( 1918) L. R. 45 I. A. 183.) Even if the document signed by the appellants was not a contract, the kabuliyat was accepted by the appellants and its terms constituted a contract. The suit was one for specific relief, but not for specific performance. Upon the principles of justice, equity and good conscience the plaintiff was entitled to a decree in respect of the interest the appellants had Woodfalls Landlord and Tenant, 22nd ed., p. 109; Burrow v. Scammell (( 1881) 19 Ch. D. 175.) If the suit was governed by the Specific Relief Act there was nothing to disentitle the plaintiff to a decree under s. 15 in respect of his 12-anna share. Dunne K.C. in reply. Nov. 24. The judgment of their Lordships was delivered by LORD SALVESEN. This is an appeal from a judgment and decree dated August 16, 1928, of the High Court of Judicature at Fort William in Bengal, which affirmed a judgment and decree dated February 13, 1926, of the Additional District Judge at Alipore, who had reversed the judgment and decree dated August 21, 1924, of the Subordinate Judge. The facts of the case may be very shortly stated. The facts of the case may be very shortly stated. The suit relates to three plots of land of the total area of 6 bighas, situated not far from Calcutta. The appellants who are known as the Mittras of Shambazar, and are hereafter -referred to as Mittras, have a 12-anna undivided share in these lands. The defendants-respondents hereinafter referred to as Boses, own a 4-anna share. The appearing respondent, Gostha Behari Sen (hereinafter called the respondent), was desirous of obtaining a lease of the whole lands, and commenced negotiations for this purpose in the beginning of 1919 by-sounding the appellants through their representative as to their willingness to lease their interests in the lands. Nothing came of these primary negotiations, but in January, 1920, the appellant again called at the house of the Mittras. According to his own evidence, he was then informed that settlement could only be made with the consent of those who represented the Boses 4-anna share. At the same time the Mittras indicated the terms upon which they for their part would be disposed to agree to such a lease. Within eight or ten days after this the respondent, according to his own evidence, saw the representatives of the Boses, who told him that they had given their consent to the proposed lease and had instructed the manager of the Mittras accordingly. He then called on the Mittras on January 13, and the result of his interview with them was a document in the following terms "A be-meadi (without any fixed period) settlement with Gosto Behari Sen in respect of the jama (tenancy) at Bonehughli formerly held by Jogendra Nath Bagchi and at present in the khas possession of the estate is approved on the following terms — (1.) A total sum of Rs.300 should be paid as salami (bonus) for this jama; (2.) the annual rent is fixed at Rs.60 ; (3.) the lessee would not beentitled to alienate this jama at any time on any ground whatever ; if he does, the jama would become khas ; (4.) if the land is acquired by Government, the proprietors would get a moiety of the compensation money ; (5.) the lessee would not be authorised to make a permanent or kaemi settlement with, or to grant a long lease to, any person. September 28, 1926. (Sd.) P. Mittra. September 28, 1926. (Sd.) P. Mittra. (Sd.) B. B. Mittra." It will be observed that this document was not signed by the respondent and that it deals with the whole lands, of which it was known to the parties at the time that the Mittras only held a 12-annas undivided share. Yet, on the terms of this document alone and without reference to the evidence, which gives no support to his conclusion, the District Judge has held that it was a " final contract " and that the Mittras thereby undertook a binding obligation on behalf of themselves and of the other co-sharers that the respondent was to obtain a lease of the whole lands on the terms briefly set forth in the document itself. Their Lordships are clearly of opinion that, looking to the state of mind of both parties at the time, such an obligation cannot be implied. On the one hand, the Mittras had clearly stated from the first that they would only grant a lease to the respondent if the consent of the other co-sharers was obtained, and, on the other hand, the respondent was at the time under the belief that he had already secured the assent of those co-sharers to the proposed lease. It is incredible under these circumstances that the appellants should either have been asked or agreed to bind themselves to an uncon ditional contract of lease of lands which in part did not belong to them. On the other hand, the document is entirely consistent with the attitude of the appellants that they were adjusting the terms of the proposed lease on the footing that the other co-sharers in the lands had already consented, or at all events were prepared to consent, to a settlement on similar terms. Moreover, it was throughout admittedly in the contemplation of both parties that a formal kabuliyat would be drawn up as between the respondents and all the co-sharers in which the full terms of the proposed lease would be embodied. In fact, an oral agreement to this effect was entered into at the same interview. Thus it would be more proper to describe the document as heads of a proposed agreement than as a final contract, as it has been interpreted by the District Judge. In fact, an oral agreement to this effect was entered into at the same interview. Thus it would be more proper to describe the document as heads of a proposed agreement than as a final contract, as it has been interpreted by the District Judge. Following on the signature of the Mittras to the document in question, the respondent paid Rs.300, which was to be the salami in respect of the whole lands. This is easily explained on the footing that the respondent believed that he had already obtained the consent of the other owners and that the whole matter of the proposed lease had been substantially arranged with all the parties concerned. In terms of the arrangement made as above set forth the respondent on January 15 had a draft kabuliyat prepared and sent to the appellants representatives. This draft was revised by them and was subsequently registered by the respondent. This draft contains numerous additions to the heads of agreement of January 13, and it is addressed not to the Mittras alone, but to the other co-sharers. So far as the Mittras were concerned, the plain inference from the terms of the kabuliyat is that no lease could be concluded without the signature of the other co-sharers, to whom along with them it was addressed. On the other hand, the respondent had previously ascertained that his belief that the Boses would join in the proposed lease was unfounded. On January 14, 1920, he called upon the Maharaja, who represented one of the co-sharers, and showed him a copy of the terms. He did not, however, obtain the signature of the Maharaja. Notwithstanding this, and apparently in the hope that he might yet induce the Maharaja to accept the terms provisionally arranged with the Mittras, he registered the kabuliyat on January 24, and thereafter again called on the Maharaja on February 3 to induce him to accept the kabuliyat, but failed to get him to agree to its terms. A third attempt had the same negative result. A third attempt had the same negative result. On March 5, 1920, he caused his solicitor to write to the appellants to the effect that they and the other co-sharers had granted a permanent lease of the property in question and that the Mittras had undertaken to grant the usual amalnamah in his favour and undertook to get the same signed and executed by the Maharaja and Manmatha on behalf of the Boses. This was the first time, so far as the evidence discloses, that this attitude was taken up on his behalf, and it was not adhered to in the plaint of the suit which he raised two years later. This plaint proceeds on the footing that it had been agreed by all the owners of the property in the beginning of January, 1920, that they should grant him a lease of the lands in question and the suit was accordingly directed against all the co-sharers. He accordingly prayed "(a) That the defendants be ordered to execute an amalnamah in favour of the plaintiff corresponding to the terms of the said kabuliyat executed by the plaintiff and annexed hereto, (b) That the defendants do make over possession to the plaintiff of the said lands and premises." The leading issues of the case as adjusted by the Subordinate Judge were "2. Whether all the defendants agreed to the proposal of the plaintiff to take a lease of the land in suit? 3. Had the defendants Nos. 1-3 any power or authority to make settlement with the plaintiff or to act in that behalf? 4. Was there a valid agreement to lease between the parties? If so what are its terms and is it binding on all the defendants? "All these issues were found against the plaintiff by the learned Subordinate Judge, and 2 and 3, which are issues of fact, have been found against the respondent by the District Judge, whose findings of fact are conclusive. On the fourth issue, which their Lordships think was at all events in part an issue of law, they are in agreement with the learned Subordinate Judge. On the fourth issue, which their Lordships think was at all events in part an issue of law, they are in agreement with the learned Subordinate Judge. The whole actings of the parties, and the conduct of the respondent in particular, are wholly inconsistent with the view that is now put forward and was sustained by the District Judge and the High Court, that the appellants undertook a binding obligation to the respondent to lease their own 12-annas share in the lands to him irrespective of what action the other co-sharers might take. The point has never been raised in the pleadings of the parties and was only suggested in argument when the respondents pleader realized that the attitude taken up in the plaint was incapable of proof. The result is that there was no concluded contract of lease with respect to the land in question, the whole negotiations having proceeded on the footing that all the owners of the property would consent to the lease. As the consent of the Boses was never obtained, the negotiations fell to the ground and the Subordinate Judge was right in dismissing the suit. Even on the assumption that the interpretation put upon the document of January 13 were well founded, their Lordships would have been unable to sustain the view of the learned District Judge and of the High Court that the respondent was entitled to the relief which has been given him. The suit as framed is obviously one for specific performance and not for a mere declaration of title. The plaintiff prays that the defendants be ordered to execute an amalnamah in favour of the plaintiff corresponding to the terms of the kabuliyat annexed to the plaint. That cannot be done, as the kabuliyat is addressed not merely to the appellants, but to the other two defendants, who have never accepted it. They agree with the learned judges of the High Court that ss. 14, 16 and 17 of the Specific Relief Act have no application to the present case. Sect. 15, however, is in these terms "Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. Sect. 15, however, is in these terms "Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant." It is upon this that the learned judges of the High Court proceeded. The proviso to the section, however, has been overlooked. The plaintiff has not relinquished all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendants. On the contrary, he claimed in his plaint Rs.600 as loss of profit already suffered, and he has obtained a decree for the return of that share of the salami which enured to the 4-anna share. The learned judges who allowed the appeal on the ground that an important question of law was involved stated this as one of the questions which they thought might properly be submitted to this Board, and their Lordships have thought it right, although in the view that they take of the case it is not necessary for their decision, that their opinion should be recorded. On the whole matter their Lordships will humbly advise His Majesty that the appeal should be allowed and the decrees of the High Court and the District Court recalled with costs and the decree of the Subordinate Judge affirmed. The first respondent must pay the appellants costs of the appeal.