TMI Blog1936 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... . Some four and a half months later the plaintiff served the defendant with the notice, Ex. P-5, dated December 21, 1932, and gave him the option of carrying out his part of undertaking or of forfeiting the lease. He was told that unless he paid-up the lease money due from him and executed a deed of agreement within a fortnight of the receipt of the notice, the theka would be auctioned again on February 10, 1933, and the defendant would be held responsible for any loss that might ensue thereby. 4. The defendant did nothing, and so the lease was auctioned again and the plaintiff now sues for damages. 5. The first question is whether the lease can be proved. It was argued that being a lease of immovable property for a term exceeding a year, it could only be effected by a registered instrument under Section 107 of the Transfer of Property Act. The learned Counsel for the plaintiff respondent countered by saying this was a lease for an agricultural purpose and so was excluded from the provisions of the Transfer of Property Act by Section 117. 6. The term agriculture is a very wide one, as was explained in Panadai Pathan v. Ramasami Chetti 45 M. 710 : 70 Ind. Cas. 657 : (1922 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained any longer. The view taken there is the old view that lac produce cannot be regarded as a growing crop. That is no longer the law. It is now looked upon as a periodical crop and consequently until gathered must be growing crop . 10. But that is not what was leased in this case. A growing crop necessarily means a crop which is in existence and which is in the process of coming to fruition. What was leased was the light of planting lac on the trees as Ex. P-7 states, that is to say, the right of sowing, cultivating and harvesting the crop. Therefore, the lease is of the trees themselves for a particular purpose, and not of a particular crop which is ripening on them. 11. I cannot see how this differs from a lease of land for the purposes of cotton, wheat, or any other kind of cultivation. Trees are undoubtedly immovable property unless severed from the ground; and, unless the intention of a lease is that the trees should be cut down and the wood removed, the lease must be a lease of immovable property. That being so, it requires registration if reduced to writing. Exhibit P-7 is of course in writing, but it forms no part of either an agreement to lease or of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the remainder of which are obtainable in your office, and which I accept, I will pay you ₹ 850 a year. 16. Exhibit P-8 then does not embody the terms of the proposed lease and was not meant to do so. 17. What then of the acceptance? That is contained in writing in Ex. P-2. It accepts the defendant's offer and states that the requisite agreement on stamped paper executed by the lessee may be submitted when ready for my signature. 18. It is not clear whether this acceptance was actually communicated to the defendant in writing. But that is immaterial, for under the rules and practice of the Court of Wards, of which I can take judicial notice, there is no doubt that the intention was that this written record should in itself constitute the actual sanction, and as such, when communicated to the defendant, the acceptance of his offer. 19. We are then left with the position in which there is a written offer and a written acceptance of a contract upon which the parties are agreed, but which was not wholly reduced to writing. The portion quoted from Ex. P-2 above shows that a formal written agreement had yet to be executed. 20. The legal result which flows fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s offer and the acceptance may be entirely oral, and yet the contract is a written one. A common example of this is when an intending passenger obtains a railway or a steamship ticket, which contains the printed terms and conditions of the contract. Equally the offer and acceptance may be in writing as is the case here, and yet the terms may be oral, and then the contract is oral one, not a written one, for it is the terms of the contract which must be embodied in a written instrument before the contract can be considered a written one, and not merely the offer and the acceptance. 24. I have spoken throughout of a document and instrument in the singular, but of course the contract may actually be contained in several documents which when read together constitute the entire contract and they are then regarded as one instrument in the eye of the law, even as they form but one contract. The terms of the contract in suit are not to be found in writing anywhere. There is no plea that they were reduced to the form of a document. Paragraph 6 of Ex. P-7 and para. 2 of Ex. P-2 indicate on the contrary that an instrument of lease had yet to be made. I hold, therefore, that the contract wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both the lower Courts hold the contract was broken by the defendant. That of course is a finding of fact and must be accepted here. But the measure of the damages to which the plaintiff is entitled has yet to be considered. The contract was broken to the plaintiff's knowledge on August 5, 1932, but she did nothing until December 21, 1932. On that date she gave the defendant a locus penitential and intimated her willingness to overlook the breach provided the defendant fulfilled his part of the obligation on or before February 10, 1933. On that date she said, through her agent through the Court of Wards, that she would treat the contract as at an end. This time the defendant did nothing, and on due date the property was again auctioned. What is the legal position arising from these facts? 29. The plaintiff claims she is entitled to the difference between what she would have obtained under her contract if it had been duly performed and what she actually obtained at the second auction, less whatever sums the defendant had paid towards the lease in the interval. The defendant says the plaintiff knew the market was steadily falling all the time and go should have mitigated damag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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