Govindasami Naidu vs Ethirajammal

Coutts Trotter, J.—The first finding of the learned District Judge is that the two persons who granted the earlier lease to the plaintiff were in

fact the dharmakartas of the temple and the 2nd defendant had no right to grant the subsequent lease relied on by the defendants. That finding is

conclusive.

It is next argued that the document relied on by the plaintiff is not a lease at all but a license; and the learned Judge has found that the lease is

terminable at the option of the lessor. It is a mistake. The lease is terminable only at the option of the lessee, the plaintiff, and enures to her benefit

so long as she is able and willing to perform the services for which she was given the lease.

The last ground taken is that the defendant, having in good faith spent money in building a house on the suit site, ought not to be ejected except

on terms of the 1st defendant being paid compensation. How far the Indian Law has gone on this matter, it is not necessary to decide. At any rate,

it is clear that no such claim for compensation can be made except in the case of fraud, namely, if the persons really entitled knew that they were

entitled and the persons in actual possession were not, and stood by and allowed them to spend money in building on the land. That I say is an

allegation of fraud. Even if that be not cause of action in this country, it is in England. No case of this kind is made either in the pleadings or set out

in the issue and I think it is the settled practice of every Court that an allegation of fraud must be made definitely and categorically and must, in no

circumstances, be allowed to be made at a subsequent stage of the suit.

The appeal fails and is dismissed with costs.

Seshagiri Aiyar, J.

As at present advised, I am inclined to think that where a lessee comes upon a property and the lease is found to be not valid, the principle of

Section 108, Clause (b), of the Transfer of Property Act applies to the improvements made by him. Therefore, if he seeks any remedy, he is only

entitled to have the superstructure removed by him and not to compensation. Further, sufficient foundation has not been laid for the contention that

the plaintiff is entitled to any compensation. I agree in the order proposed by my learned colleague.