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Koylash Chunder Bose Vs. Anarallah Shaikh and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal118
AppellantKoylash Chunder Bose
RespondentAnarallah Shaikh and anr.
Excerpt:
fraud - misrepresentation--kabuliat--contract of tenancy--rectification of contract--specific relief act (i of 1877), section 31. - .....was an entire contract, and the defendants have no right to repudiate one portion of it on the ground of fraud and adhere to the other portion. if the tenancy is to be avoided on the ground of fraud, it must be avoided in toto.4. if they wished to set up the defence upon which they now rely, they should have relinquished the whole of the land covered by the kabuliat.5. if, on the other hand, they wished to have their contract of tenancy rectified or altered, they should have brought a suit for that purpose. they would have their remedy under section 31 of the specific relief act.6. but then it is said by the pleader for the appellants, that the defendants are holding the piece of land which they have retained, not under the case, but under a different title; but this does not appear.....
Judgment:

Richard Garth, C.J.

1. We think that the appeal should be dismissed upon this short ground. Three plots of land were let to the defendants under one kabuliat, two of these, they say, they have relinquished, but one they are now admitted to be in possession of.

2. Under these circumstances they have clearly no right to set up as a defence to a suit for the whole rent, that they were induced to enter into the kabuliat by the fraud of the plaintiff.

3. The lease was an entire contract, and the defendants have no right to repudiate one portion of it on the ground of fraud and adhere to the other portion. If the tenancy is to be avoided on the ground of fraud, it must be avoided in toto.

4. If they wished to set up the defence upon which they now rely, they should have relinquished the whole of the land covered by the kabuliat.

5. If, on the other hand, they wished to have their contract of tenancy rectified or altered, they should have brought a suit for that purpose. They would have their remedy under Section 31 of the Specific Relief Act.

6. But then it is said by the pleader for the appellants, that the defendants are holding the piece of land which they have retained, not under the case, but under a different title; but this does not appear upon the record, and the pleader has been unable to show us that he has any real ground for that contention.

7. We think, therefore, that, as a matter of law, the learned Judge was perfectly right.

8. The appeal is dismissed with costs.


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