Badruddin Khan vs Bhagloo Koeri

Wort, J.—The only point for consideration in this case is whether by reason of Section 116, Evidence Act, the defendant who is the respondent in this appeal was estopped from denying the plaintiff''s title.

The plaintiff claimed to be the assignee of the reversion of certain lands and the defendant as his tenant. There is no doubt that the defendant, after the reversion had been assigned to the plaintiff, executed a kabuliyat in favour of the plaintiff. The plaintiff in this action claimed rent for the period of the kubuliyat and also to eject the defendant. The defence set up was that the plaintiff had no title. The Court below has held that the defence was open to the defendant and therefore had dismissed the plaintiff''s suit on the ground that one Gopal Lal was entitled to the land and not the plaintiff.

As I have said the question is whether the defendant is a person who is estopped by reason of Section 116, Evidence Act, which reads as follows:

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property, etc.

I am concerned only with the first part of the section, and the substantial question, is, what is meant by the words "at the beginning of the tenancy." In India these words have been construed in various ways and decisions have been most numerous in the Madras High Court and by reason of a conflict of decisions in that Court the matter was referred to a Full Bench in the case of Venkata Chetty v. Aiyanna Gounden 1917 Mad 789.

The judgment was first delivered in the case by Coutts-Trotter J., and Seshagiri Ayyar, J., both holding that the doctrine of estoppel laid down in Section 116, Evidence Act, was not different from that of the English law. In substance the judgment of the learned Judges was to the effect that a person in the position of the defendant in this suit was estopped from denying the title of his landlord, although the landlord was an assignee of the reversion and although the landlord had not let the defendant into possession, unless the defendant could show either fraud or circumstances which would vitiate the contract and that he was not bound by the lease which he had executed.

The matter coming before a Full Bench of the Madras High Court, Abdul Rahim, C.J., dissented from the view expressed by the referring Court but there was a judgment of Seshagiri Ayyar, J., and Phillips, J., in support of the view held by Coutts-Trotter, J. In the judgment that was delivered a somewhat elaborate discussion took place of the English cases. I must say that I agree with the view expressed by Abdur Rahim, C.J. The English oases do not help the decision of this particular case. There is abundant authority, if authority were needed, that in construing a statute regard cannot be had to the law prior to the statute.

If indeed a statement of the English law is necessary or advisable for the purpose of construing Section 116, Evidence Act, no better statement of that law can be had, in my judgment, than the draft of the Law of Evidence by Sir James Fitzjames Stephen, being Article 103. It is to this effect:

No tenant and no person claiming through any tenant of any land or hereditament of which he has been let into possession, is permitted to deny that the landlord had, at the time when the tenant was let into possession or paid the rent, a title to such land or hereditament.

Indeed had the matter to be decided on common law principles, the authorities being so exhaustive on the matter, there would be no difficulty. The difficulty arises by reason of expressions used by the Legislature in the section. The section provides, to repeat it:

No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny, etc.

Their Lordships of the Judicial Committee of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh 1915 PC 96 made this statement:

Section 116, Evidence Act, is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord''s title, however. defective it may be, so long as he has not openly restored possession by surrender to his landlord.

I refer to that decision as an interpretation of the words "during the continuance of the tenancy," the words, according to the opinion which was delivered by Sir George Farwell in the case to which I have just referred, having the same meaning as the rule of the English law. The difficulty arises when the words, "at the beginning of the tenancy" are to be construed.

In the views expressed by the majority of the Judges in Venkata Chetty v. Aiyanna Gounden 1917 Mad 789, the words "at the beginning of the tenancy" were not to have a limited construction placed on them: the words "at the beginning of the tenancy" mean at the time when the tenant was let into possession. It is clear that in a case where the tenant has been let into possession the tenant would be estopped for the reason that he cannot approbate and reprobate and cannot accept the title from a person and then when in possession to deny that that person had any title to give him.

As was pointed out by Seshagiri Ayyar, J., in Venkata Chetty v. Aiyanna Gounden 1917 Mad 789. an estoppel of the description provided for by Section 116 is known in English law as estoppel in pais and that it arises from Livery of Session, Entry, Acceptance of rent, Partition or Acceptance of an estate. I do not agree however with the learned Judge in suggesting in his judgment that a case of the kind which we have before us as he had in that case came within either of those descriptions (here there is no acceptance of rent although there is a clear case of attornment) but I do agree with the learned Judge in holding that there appears to be no reason on the face of the section itself to entitle the Court to construe the words "at the beginning of the tenancy" in a limited way: a new tenancy may begin although the tenant has been in possession prior to that tenancy. It may begin by the granting of a lease by the landlord, it may begin by the tenant attorning to a new landlord as in the case which I have before me.

The distinction between the tenant being let into possession by the person whose title he seeks to deny and that in which the person whose title he denies did not let him into possession seems to be this, that in the first case the estoppel is complete as provided by the section, that is to say that so long as that tenancy continues the tenant cannot deny his landlord''s title as pointed out by their Lordships of the judicial Committee of the Privy Council in the case of Sital Prasad v. Badri Prasad 1923 All 53. In the other the second class of cases, the estoppel is not complete in the sense that the tenant may evade it by showing any circumstances which would vitiate the agreement which he has entered into with the landlord. Indeed it is not an exception to the rule laid down in Section 116 but is merely an application of the ordinary principles of law which in no way are affected by Section 116.

Estoppel exists in both class of cases but in the second class to which I have made reference, which was the class to which this case belonged, it would have been necessary for the defendant to have shown that he executed the kabuliyat under misrepresentation or coercion or by reason of fraud which would vitiate the contract which he had entered into.

As that is not the case in this action, in my judgment the defendant was estopped from denying his landlord''s title and therefore the landlord in this case should have succeeded in his action. In the Madras case, the case of Venkata Chetty v. Aiyanna Gounden 1917 Mad 789 the question of whether coercion or undue influence or misrepresentation, fraud or mistake existed had already been tried out in the previous suit and as the learned Judges in that case stated, the matter was not open to the defendant. The same view was taken in the case of Sital Prasad v. Badri Prasad 1923 All 53 and in Mela Ram v. Mt. Bholi 1925 Lah 60 and a different view was taken in Lal Mahomed v. Kallanus (1885) 11 Cal 519.

For the reasons I have given it seems to me that the estoppel existed in this case and accordingly there should be a judgment in favour of the plaintiff. The appeal is therefore allowed. There will be a decree in favour of the plaintiff with costs throughout. There will be leave to appeal.