MARGARET JEAN MASSY WESTMORLAND WOOD Vs. COLONEL GRANVILLE ALRIC RICHARD SPAIN
HIGH COURT OF MADRAS
Margaret Jean Massy Westmorland Wood
Colonel Granville Alric Richard Spain
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(1.) THIS is an appeal by the plaintiff in O. Section No. 162 of 1948 on the file of the Subordinate Judge of the Nilgiris at Ootacamund against the dismissal of her suit. The plaintiff is the owner of lands and premises known as Niton Estate which contains a tea plantation and is situated in Kotagiri in the District of the Nilgiris. The plaintiff demised the said estate to the defendant under a lease deed dated 1st July 1945 (Ex. A. 1). The lease was for a period pf ten years. The annual rental was fixed at BE. 1800 to be paid in four instalments of Bs. 450 each in advance on or before the 1st July, 1st October, 1st January and 1st April each year. Besides the estate, a small house used for the occupation Of the writer was also let out to the defendant at a monthly rental of Rs. 5. The lease contained both covenants by the lessor and covenants by the lessee. It was provided 'inter alia' in the lease that in case of breach or nonperformance of any of the covenants and conditions contained in the lease on the part of the lessee, then it shall be lawful for the lessor to re -enter upon the demised premises and to re -possess the same without prejudice to any right of action or remedy of the lessor in respect of any such breach of the covenants and conditions. The suit was instituted on the allegation that there had been many breaches of several of the covenants and conditions of the lease and that, therefore, the plaintiff as lessor had become entitled to lawfully re -enter upon the premises and to forfeit the defendant's rights under the lease. The plaintiff therefore prayed for a decree in ejectment. She also prayed for the recovery of a sum of Bs. 5776 -2 -6 as compensation for the damage caused to the estate by the said breaches by the defendant. She also claimed mesne profits from the date of suit till date of delivery of possession at the rate of Rs. 1000 per month and compensation for the deterioration of the premises from the date of suit till date of possession.
(2.) THE defendant denied the breaches alleged by the plaintiff and disclaimed any liability. The defendant also pleaded that some of the covenants were not binding on him because they were inserted fraudulently and on misrepresentations made by the plaintiff's husband to the defendant. He also raised a further plea that the suit must fail because of the want of a proper and valid notice of ejectment.
The following issues were raised on the pleadings: 1. Has the defendant committed a breach of any of the covenants mentioned in the plaint, and if so, does it work out a forfeiture of the lease? 2. Was a proper and valid notice of ejectment given by plaintiff to defendant? 3. Has plaintiff a cause of action and is her suit for ejectment and possession maintainable? 4. Are covenants 5, 9 and 9 (a) void and invalid for the reasons alleged by the defendant?
(3.) (a) If issue 4 is in the negative, has there been sufficient compliance by defendant with the said covenants? 4(b) Is it competent for the defendant' to say that plaintiff is not entitled to insist on his performance of the covenants to the extent mentioned in the lease deed itself?;
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