DHIRAJLAL VITTALJI Vs. IVY DICKSON

JUDGEMENT

(1.) These two second appeals are by defendants 1 and 2 respectively, against the decree passed by the Civil Judge, Mangalore, S.K. in RA.34 of 1970, modifying the decree passed by the Munsiff, Mangalore, S.K. in OS.597 of 1965.

(2.) The plaintiffs instituted the suit on 22-11-1965 for a declaration that the lease deed d/.9-3-1962 entered into between the first and third defendants and registered as document No.555 of Hook of 1962 of the office of the Registrar, S.K., is void and invalid and not binding on the plaintiffs and defendant 2. The property, which is the subject matter of the lease deed d.9-3-1962, originally belonged to one Gregory John Saldanha, He died on 11-3-1918 leaving behind his widow, the third defendant, and four daughters, plaintiffs 1 to 3 and the-second defendant. Before his death, he had executed a will d.30-9-1916 produced in the case as Ext.P1. In OP. 146 of 3920 a probate was granted in favour of the third defendant and one Joachim Vincent Saldanha, who was appointed as the managing executor. The first defendant was a monthly tenant of the suit premises, which is a non-residential building situate in the City of Mangalore. The agreed rent payable was Rs.50 p.m. After the death of the managing executor, Joachim Vincent Saldanha, the remaining executrix, viz., the third defendant, executed a lease deed on 9-3-1962 as per Ext P2 in favour of the first defendant. The lease deed recites that the first defendant was already a tenant on a monthly rental of Rs.50. It further recites that the building was in need of immediate repairs and renovation and that the executrix did not possess sufficient funds to effect the repairs and to renovate the building. Therefore, she entered into an agreement with the first defendant, who was already in possession of the building as a monthly tenant. It further stipulates that the first defendant should effect the repairs and make improvemen's, subject to the approval of the third defendant. It is further provided that the expenditure should not be Incurred so as to exceod a sum of Rs. 15,000. In lieu of this investment to be made by the first defendant, the third defendant agreed under Ext.P2 to grant a lease for ft period of twenty years renewable at the instance of the first defendant for a further period of twenty years on the same terms and conditions, viz., on payment of Rs.50 8s rental p.m. It further provides that if before the expiry of the period stipulated in Ext.P2 the lessor terminates the tenancy, the lessee would be entitled to the refund of the amount on the basis of the book value. It is this lease deed that is challenged by the plaintiffs as not binding on them and the second defendant who are the legatees entitled to. succeed to the suit property under the will executed by late Gregory John Saldanha.

(3.) The case of the plaintiffs is that the third defendant had no power of management of the property as she was not appointed as a managing executrix. It is the further case of the plaintiffs that the third defendant, at any rate, had lost the power of management after the second defendant attained twenty-one(21) years of age. It is further pleaded that Ex.DS d/.25-11-1964 is vitiated as it was obtained by undue influence, fraud etc.