LexRAJA KAMALA RANJAN ROY versus BAIJNATH BAJORIA.
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1950 Manann Lal Deas hi '· Mohammad Moi.nul Haque & Others. Patanjali Saatri J, 1950 Dec, 1. 840 SUPREME COURT REPORTS (1950] thereafter. As pointed out by the Judicial Committee in H emanta K uinar' s case (1) "An agreement for a lease, which a lease is by the statute declared to include, must, in their Lordships' opinion, be a docu- ment which effects an actual demise and operates as a lease ...... The phrase which in the context where it occurs and in the statute in which it is found, must in their opinion relate to some document which creates a present and immediate interest in the land." The compromise decree expressly provides that unless the sum of Rs. 8,000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property. Until the payment was made it was impossible to determine whether there would be any underlease or not. Such a contingent agreement is not within clause (d) and al- though it is covered by clause (b), is excepted by clause (vi) of sub-section (2). \Ve therefore agree with the con- clusion of the High Court though on different grounds and dismiss the appeal with costs. Appeal dismissed. Agent for the appellant: P. K. Chatterjee. Agent for the respondent : Sukumar Glzose. RAJA KAMALA RANJAN ROY v. BAIJNATH BAJORIA. (SHRI HARILAL KANIA C.J., PATANJALI SASTRI and DAS JJ.) Conlract~Specific perforn"nce-0.ff:r to purchase leasehold right-Stipulation that lesse'J sho-uld obtain consent of lessor-Lessor ttnreasonably refflsing consent-Lessee, 1vhethe'· relieved of liribility f0 assign-Suit for sp-1cifi~ verformince by purchasftr-Maintain.• abilitr1-Lea.s9 deed-Covenant prohibitin1 assignm;nt of lease without l . " l _f!s~or s co:isent, Sit' i co 1isent, lunv,~v~r, not to b3 11,11reasonably u·i h- hJld in case of respectable p!rso'i "-llieaniru; and effect of co1,>!':1tant. (1) 47 Ca.I. 48-'i, at p. 494. - - • S.C.R. SUPREME COURT REPORTS 841 The defendant had obtained certain premises on lease under a deed which contained a covenant by the lessee "not to assign the demised premises or any port thereof without first obtaining the written consent of the lessor, such consent, however, not to be unreasonably withheld in the case of respectable or responsi· hie person", After some offers and counter offers the plaintiff finally made an offer to purchase the defendant's leasehold inter- est on certain terms one of which was that " the consent of the landlord will be obtained by yon before the completion of the sale"; and the offer was nnconditionally accepted by the defend- ant. The defendant subsequently refused to assign on the ground that the lessor had withheld bis consent, and the plaintiff sued for specific performance of the agreement : Held, (i) that the agreement was not, for its coming into being, conditional or contingent on the obtaining of the lessor's consent, the obligation ta obtain the lessor's consent being only a term of the agreement which the defendant had to fulfil; (ii) tho words 11 such consent, however, not to be unreasonably withheld in the case of a respectable or responsible person " in the lease· deed did not amount to a. separate or indepGndent covenant by the lessor that he would not refuse consent except on reasonable groundR in the case of a reBpectable or responsible person, but only limited or qualified the lessee's covenant not to assign with. out the lessor's consent, by relieving him from the burden of the covenant if the lessor withheld hie consent unreasonably in the case of proposed assignment to a respectable or responsible per- son ; (iii) that, as the plaintiff was admittedly a respectable and responsible person and on the facts of the case the lessor's refusal to give consent was unreasonable, the defendant could validly assign the lease without such consent ; (iv) that the court could come to a decision on this matter even though the lessor was not a party to the suit and the decision might not bind him ; (v) that the defendant could not under these circumstances plead the absence of the lessor's consent as relieving him from the obliga- tion to perform his part of the agreement if the plaintiff insisted on bis carrying out the agreement even though the lessor had not given his consent; and the plaintiff was therefore entitled to a decree for specific performance of the agreement. CIVIL APPELLATE JURISDICTION
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