Decided on February 09,1970



Ramendra Mohan Datta, J. - (1.) This suit is, inter alia, for the recovery of possession of the northwestern portion of premises No. 12/2 Kyd Street and the entirety of premises No. 13, Kyd Street, Calcutta (hereinafter called the said premises). By a registered Deed of Lease dated October 18, 1966 the said premises were demised by the lessors on a lease for 99 years in favour of the defendant No. 1. Besides the re-entry clause in case of non-payment of three months' rent and/or breach of any of the covenants contained therein the said lease, inter alia, provided the following clause :-- "Clause 6 (a). That the lessee shall at any time within period of six months from the said lease pay to the lessors (plaintiffs and the defendants Nos. 2 to 5 and their mother) either at a time or by two equal monthly instalments the aggregate sum of Rs. 21,000 as and by way of advance rent. Provided, however, that the defendant would be at liberty to adjust the said advance rent of Rs. 21000 so to be paid by deducting at the rate of Rs. 300 per month out of the total monthly rent payable by her. Provided further that the defendant would start such deducting at the rate of Rs. 300 per month out of the total monthly rent after the period of 13 years 8 months from the said date of the lease and would continue to do so until the sum of Rs. 21000 would have been fully adjusted. Provided also that if the lease was determined at any time before the said sum of Rs, 21000 would be adjusted as aforesaid due to any breaches of any covenant under the lease committed by the defendant No. 1 the lessors (the plaintiffs and the defendants Nos. 2 to 5 and their mother) would not be required and/or called upon to refund and/or adjust the sum of Rs. 21000 or any portion thereof which might then remain outstanding."
(2.) The said lessee paid rent only for the broken period of October 1966 calculated at the rate of Rs. 1500 per month but failed and neglected to pay any further rent. As regards the said payment of rent the lessees granted different rent receipts in respect of their shares of rent in terms of the said lease.
(3.) On June 7, 1967 a notice was served upon the defendant through the lawyer Sri P. K. Gliose, inter alia, determining the lease, specifying the breaches of the covenant and calling upon the lessee to quit and vacate and deliver up peaceful possession on the expiry of the mouth of July 1967. The defendant No. 1 having failed to comply with the said notice, two of the lessors filed this suit impleading the other lessees as party defendants herein and claimed arrears of rent npto the month oi July 1967 and mesne profits from August 1, 1967 until possession would be delivered. The two plaintiffs who have filed this suit are the two brothers and the defendants Nos. 2, 3, 4 and 5 are the sons of another pre-de-ceased brother. The two plaintiffs and the sons and the widow of the said pre-deceas-ed brother were the lessors under the said lease. The widow Annabati Dassi died sometime prior to the notice dated June 7th 1967. It is stated that the said notice was caused to bo served under instructions from the plaintiffs and the defendants Nos. 2, 3, 4 and 5 being the sons of the said pre-decea-sed brother.;

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