Jagannatha Iyengar (died) and Another vs S.P. Mariappan Chettiar

Panchapakesa Ayyar, J.—This is a petition by one Jagannath Ayyangar, since deceased, the plaintiff in O.S. No. 107 of 1950 on the file of

the District Munsif''s Court, Srivilliputtur for revising and setting aside the judgment and decree of the Additional Subordinate Judge of

Ramanathapuram at Madurai in A.S. No. 97 of 1951.

The facts are briefly these : The petitioner had filed O.S. No. 107 of 1950, originally as a Small Cause suit, for recovery from the respondent

Mariappa Chettiar a sum of Rs. 227-12-3 as arrears of rent due to him for a shop rented out to the respondent on a rent of Rs. 5 per month. That

shop had been usufructuarily mortgaged to the petitioner by the Jeer of the Manavala Mamuni Mutt of Srivilliputtur for a period of five years from

23rd May, 1941, for a sum of Rs. 550, without however, obtaining the sanction u/s 76 of he Madras Hindu Religious Endowments Act On that

ground, the usufructuary mortgage in favour of The petitioner was held to be void on 31st March, 1945, by the sub-Court of Ramanathapuram at

Madurai (Exhibit B-1), and this was confirmed by this Court on 6th October, 1950, in A.S. No. 544 of 1945 (Exhibit B-2). On 9th August, 1945

notice was given to both the petitioner and the respondent by the Mutt stating that the Mutt continued to be entitled to the mortgaged property and

asking the petitioner to surrender the othi and the respondent to surrender his tenancy rights. The respondent was afraid that he would be evicted

from the shop and, being a businesslike Chettiar, he wanted to continue in the shop and attorned to the Mutt on or about 12th August, 1945. The

petitioner did not reply to the Mutt''s notice, and kept quiet, obviously because he had no valid reply and was awaiting the decision of his Court in

the pending appeal, m the forlorn hope that this Court might upset the first Court''s decision No such thing happened. As already stated, the first

Court''s decision was confirmed by this Court, and the othi was held to be void, on 6th October, 1950. In spite of this perfectly correct legal

position, the petitioner felt highly aggrieved that he had parted with Rs. 550 of his to the Mutt in the belief that the othi was valid and was now

faced with the loss of his money. He did not succeed in making the Hindu Religious Endowments Board ratify the othi. He filed this suit against the

respondent on the ground that the respondent having accepted the lease from him and treated him as landlord, was estopped from denying his title

till he had surrendered possession of the shop to him, or till he was actually evicted therefrom in due course of law by the rightful owner, the Mutt,

or was deemed to have been so evicted. The trial Court upheld the plea of estoppel to the full extent, and decreed the suit in full. I may add here

that the suit, though filed originally as a Small Cause Suit, was converted into an original suit owing to complicated questions of title regarding this

shop being involved in it. The respondent took the matter in appeal, and the learned Subordinate Judge reversed the judgment and decree of the

trial Court, holding that the decision regarding the voidness of the othi was binding on the petitioner, who was a co-defendant along with the

Manavala Mamuni Mutt, as there was a conflict between the pleas of the defendants and it was necessary to resolve the conflict. The curious thing

is that the trial Court decreed the suit in full, and the lower appellate Court dismissed the suit in full, whereas the correct course lay between these

two extremes. During the pendency of this Civil Revision Petition, the petitioner died, and his legal representative has been brought on record.

I have perused the records, and heard the learned Counsel on both sides. Mr. Srirangachariar, learned Counsel for the petitioner and Mr.

Desikan learned Counsel for the respondent, have argued the case fairly and squarely. Mr. Srirangachariar did not any longer contend that the

petitioner''s othi would be valid and could be enforced. Mr Desikan fairly conceded that till the respondent received the notice, on 12th August,

1945, he had not taken advantage of the judgment dated 31st March, 1945, holding the othi to be invalid, and given notice to the petitioner that he

felt himself bound by that judgment, though under appeal, and would pay the rent only to the Mutt, the rightful owner. Indeed, till he received the

notice on 12th August, 1945 he was happy, as he need not pay the rent either to the true owner or to the othidar whose othi had failed.

Three questions arise for decision in this Civil Revision Petition. The first is whether the petitioner, who admittedly lost his title under the othi,

could claim the rent from the respondent, simply relying on the estoppel u/s 116, Indian Evidence Act, for the whole suit period. The second is

whether he could not claim at least the rent for six months, from 12th February, 1945, till 12th August, 1945, or Rs. 30, from the respondent, since

neither he nor the respondent had received any notice from the true owner till then, and both had gone on the basis of the lease between them, and

were awaiting the result of the appeal pending in this Court. The third is whether the respondent was bound to actually surrender possession to the

petitioner even after the notice of the true owner to the petitioner, which the petitioner dared not answer, and after the true owner was threatening

him with eviction in case he did not attorn to him. I am of opinion that till 12th August, 1945, the respondent was bound to pay the rent to the

petitioner, who had given the lease to him, as he had not received any notice from the true owner, and had not also surrendered his possession to

the petitioner fearing that his title would not hold good after the judgment of the trial Court dated 31st March, 1945, and had, of course, not been

evicted. Mr. Desikan had no valid contention to urge against this. So, the suit should have been decreed against the respondent for this sum of Rs.

30.

But I cannot agree with Mr. Srirangachariar, for the petitioner, that the estoppel u/s 116 of the Evidence Act would enure even after the

petitioner and the respondent had both got the notices from the true owner, and the petitioner had not dared to reply to that notice, and the

respondent was threatened with eviction by the true owner unless he attorned to him. A lea-e by an unauthorised person, of properties over which

he has no title, to another will not entitle him to receive the rent stipulated under the lease for all time to come. If that were so, impostors will begin

executing leases over public and private properties, over which they have not the least claim or title, and rely on Section 116 of the Evidence Act

which will become a snare and a rap, instead of a shield had a defence, to honest persons as it is intended to be. I am satisfied that the respondent

really feared eviction by the true owner if he did not attorn to him after he had received the notice on 12th August, 1945. Mr. Srirangachariar

argued that the respondent did not give notice to the petitioner about the notice he had received, and take his instructions, and ask him to take

appropriate steps against eviction by the true owner. This argument would have had some force if the petitioner himself had not received a notice

from the true owner at the same time. The respondent was doubtless aware that the petitioner had also received such a notice from the true owner

and was keeping quiet as he had nothing to urge and was only hoping for a reversal of the trial Court''s judgment by this Court. So there was no

purpose served by the respondent''s going to the petitioner and asking his advice or directions. The petitioner was taking no action while the true

owner was threatening eviction unless the respondent attorned to him. A real threat of eviction believed in by the respondent would be enough

justification for the respondent''s attornment, and will make it not a voluntary act on his part but an act necessitated by the exigencies of

circumstances.

In the end, therefore, I modify the judgments and decrees of both the Courts below, and grant the second petitioner in this Civil Revision

Petition, the legal representative of the original plaintiff, a decree for Rs. 30 against the respondent with interest thereon at six per cent per annum

from 26th August, 1949, the date of plaint, till realisation, and dismiss the rest of the suit claim. In the peculiar circumstances, I direct all the parties

to bear their own costs throughout.