P L D 1958 Dacca 43 (PLP)

The trial Court decreed the suit and, on appeal by the defendant, the lower appellate Court affirmed the decision of the trial Court and dismissed the appeal. Hence ‑ the present appeal at the instance of the defendant. In this case, the bone of contention is whether the date of commencement of the lease has been embodied in: the agreement. Both the Courts below have found that the date has not been expressly mentioned in the deed but the same can be gathered by implication. This finding is challenged by the appellant. Hence we are to see whether the contract in this case is void for uncertainty. In the case of Srimati Giribala Dasi v. Kalidas Bhanja and others (25 C W N 320 (P. C.)) it has been held "It is elementary that specific performance of an agree ment to grant a lease cannot be decreed unless that agree ment, either expressly or impliedly to be granted fixes the date from which the term is to run." Having in view this principle as enunciated by the Judicial Committee, we are to see whether the date of commence ment of the lease can be ascertained from 'the agreement in question: ` Mr. Bhattacharjee, the learned Advocate for the appellant, after placing the agreement in full, urged that the agreement has neither expressly nor by implication fixed a date from which the lease was to run and that the law as enunciated in the case of Kailash Chandra Bhoumik and others v. Bejoy Kanta Lahiri Chadhur y and another (23 C W N 190), and relied on by the lower appellate Court, is not a good law as, in his submission, section 110 of the Transfer of Property Act has no application to a lease 'to be executed but applies to a lease already executed and he has also relied on the decision given by Mr. Justice Mukherjee in the case in 44 C W N 76, while, ‑on the other hand, Mr. Chaudhury, the learned Advocate for the respondent, supporting the judgment of the Courts below, urges that the date of the commencement of the lease has been impliedly fixed and section 110 of the Transfer of Property Act is applicable to a lease to be executed. The facts of the case in 23 C W N 190 were that on 30th December 1908 an oral contract was entered into to grant a permanent lease. There was no dispute as to the identity of the land, the annual rent fixed and the premium‑payable. Further there was no suggestion at any stage in the preliminary Court that the contract was not completed though the date of commencement had not been expressly stipulated but in the plaint it was stated that the lease was to take effect, according to the oral contract, from the date of execution of the lease which was not chal lenged in the written statement. In this view of the matter, their Lordships held that, in view of the provisions of sec tion 110 of the Transfer of Property Act, the intention of the parties might leave been, in the absence of indication to the contrary, that the lease would take effect from the date of the execution of the instrument, and, as such, there was a concluded agreement. Mr. Chowdhury has further relied on the case of Kedar Nath Marwari Bajoria v. Ramendra Nath Mallik (50 C W N 306) and the decision of Mr. Justice Rau in the case of Calcutta Landing and Shipping Co. Ltd., v. The Victor Dal Co. Ltd. (48 C W N 76). The case in 23 C W N 190 was decided on 13th May 1915, while that in 25 C W N 320 (P C) was decided by the Judicial Committee on the 8th July 1920. The facts of the case in' 25 C W N 320 (P C) were that in the plaint an oral lease was alleged but it was not tried but a different issue was tried, namely, whether an agreement in writing in the shape of a letter contained in express words or by necessary implications the terms which the contemplated lease was to contain, so full, precise and unambiguous in character that specific performance of the contract could, according to established principles, be decreed. In the letter it was written that permanent ijara would be executed hereafter. It was held by the Judicial Committee that the date of commencement of the lease was neither expressly nor impliedly mentioned in the letter. In this case, an application of section 110 of the Transfer of Property Act was not pleaded though the case was decided later than the case in 23 C W N 190 as mentioned above. The present case is not a case of oral agreement but a written one and from the written agreement it appears that the instrument of lease was to be executed within one month after the sale being confirmed and delivery of posses sion taken but no date of commencement of the lease has been expressly mentioned nor do I find any late of com mencement of the lease by implication. Mr. Chaudhury also placed the whole document before me and from certain state ments in the document Mr. Choudhury urges that the date of commencement of the lease can be gathered by implication from those stray statements but I fail to find any such state ments from which I can find out the date of the commencement of the lease by implication. Now remains the application by section 110 of the Transfer of Property Act. The section runs thus : "Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in com puting that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease. Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences. Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option." From the aforesaid provisions of section 110 of the Transfer of Property Act, it appears to me that it provides for computation of period of a lease in order to find out duration of the lease and its determination. It nowhere refers to any lease which is to come into effect in future date but only refers to a lease already in existence nor does it provide that in case of an agreement where date of commencement of a lease is not mentioned it will be assumed that the date would be the date of execution of the lease. An agreement for a lease is not an instrument of lease but it is a contract to bring a lease into being in future. If there is no mention of the date of commencement of a lease in the con tract, either expressly or impliedly, section 110 of the Transfer of Property Act would not fill up the gap. In this view of the matter, I find that section 110 of the Transfer of Property Act has no application to a lease to be brought into being or to a contract. for lease but it only applies to a lease in existence in order to compute the period of duration of and to determine a lease. In the result, the appeal is allowed and the judgment and decrees of the Courts below are set aside and the suit is dismissed, but, in the circumstances of the case, I make no order as to costs. I direct that the parties should bear their own costs all through. Z. A. S. Appeal allowed.