Kandasami Pillai vs Rangasami Nainar (died) and Others

Sundara Aiyar, J.—The suit in this case is for restraining first defendant from interfering 11th the plaintiffs enjoyment of certain lands. The

plaintiff obtained a sale of it from the 2nd defendant in 1906. Prior to the sale the land had been sold in execution of a decree against the 2nd

defendant in a Small Cause Suit. The 1st defendant was the auction purchaser. The auction sale took place in June 1904. Admittedly the land

previously belonged to the 2nd defendant. The plaintiff''s case is that the auction purchase was really for the benefit of the 2nd defendant and that

the 1st defendant was only a benamidar. This plea has been upheld by both the courts. The 1st defendant set up his own title to the land as the real

purchaser and contended that Section 317 of CPC was a bar to the plaintiff''s suit. Both the Lower Courts held that Section 317. was not

applicable in the circumstances of the case. There was an issue raised as to whether the 1st defendant was estopped by his conduct from

questioning plaintiffs title. The conduct referred to consisted in the 1st defendant allowing the 2nd defendant to remain in possession of the land for

a period of about 3 years after the auction sale without taking any steps to assert his own title and in his attesting the sale deed executed by the 2nd

defendant in plaintiff''s favour Ex. C. The 1st defendant stated that he made the attestation without any knowledge of the contents of Ex. C. But his

story had been disbelieved by both the courts. I am of opinion that this appeal may be disposed of on the issue of estoppel. Ex. C. was executed

on the 6th July 1936. Till then the 1st defendant did not take steps to obtain a sale deed though the took place in April 1904 and it was confirmed

in June 1904. His application, for a certificate was made in 1907 after he has attested Ex. C. Now Ex. C. recited that the land belonged to the 2nd

defendant and was in his enjoyment. And this document was found by the lower Courts attested by the 1st defendant with full knowledge of its

contents. The District Munsif found more against the 1st defendant. He was of opinion that there were good reasons to believe that it was the 1st

defendant who brought about the sale and it cannot therefore be doubted for a moment that his attestation and also that of his undivided son were

obtained as security for the vendees in token of the 1st defendant having admitted that he was only a benamidar in respect of the land purchased in

court auction and which was with his full knowledge and consent included in the sale deed. The District Munsif does not say that it was the 1st

defendant who brought about the sale deed. If he did so there could be no doubt 1st defendant would be estopped from asserting his own

ownership, subject to an argument of Mr. Seshagiri Aiyar which I shall hereafter notice that the rule of estoppel is not applicable to such a case.

There are no reasons to believe that the District Judge did not really agree with the District Munsif in his observation as to the part taken by the 1st

defendant in the matter of the execution of the sale deed Ex. C. But it is not necessary to rest my judgment on the assumption that the District

Judge intended to agree with the District Munsif. It would be quite enough if the 1st defendant with the knowledge of the recital that the land

belonged to the 2nd defendant and was in his enjoyment as owner attested the sale deed executed by him to the plaintiffs. In the leading case of

Sarat Chunder Dey v. Gopal Chunder Laha I. L R. (1887) M. 234 the Judicial Committee of the Privy Council expounding the law of estoppel

observe ""The principle on which the law and statute rest is, that it would be most inequitable and unjust to him that if another by a representation

made or by conduct amounting to a representation has induced him to act as he would not otherwise have done, the person who made the

representation should be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it."" It is

quite clear both from the exposition and from the words of Section 115 of the Indian Evidence Act themselves that no actual verbal representation

is necessary to give rise to estoppel. It is quite enough that the conduct of a party leads another to act in the belief that he asserts no claim to the

property. A passage from the judgment of Lord Campbell in the case of Cairncross v. Larimer (1860) 3. Macq. 827 is cited by the Privy Council

in the judgment ""I am of opinion that generally speaking if a party having an interest to prevent an act being done has full notice of its having been

done and acquiesces in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his

sincerity he has no more right to challenge the act to their pre-judice than he would have had if it had been done by his previous license."" Their

Lordships ""go on to say ""these words were used with reference mainly to acts indicating only subsequent consent to an application which had been

made and which might have been objected to when originally made; but they apply a fortiori in a case like the present where the person estopped

was a party to the transaction itself which he or others taking title from him seek to challenge after a considerable interval of time. In Carr v. The

London and North-Western Railway Company (1875) L.R. 10 C.P. 507, a very leading decision on the question of estoppel, the following was

one of the propositions laid down. ""Another proposition is, that, if a man whatever his real meaning may be so conducts himself that a reasonable

man would take his conduct to mean a certain representation of facts and that it was a true representation and that the latter was intended to act

upon it in a particular way and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as

represented."" Here at the time of the execution of Exhibit C, the 1st defendant was the ostensible purchaser at court auction. The sale deed was

executed by the 2nd defendant. Not only the 1st defendant but his son also attested the document. It is impossible to doubt that the object of the

attestation was to reassure the plaintiff in taking a sale deed from the 2nd defendant when the ostensible purchaser at the auction sale was the 1st

defendant. We have no hesitation in saying that the 1st defendant must be held to be estopped from asserting his own title to the land.

It was argued by Mr. Seshagiri Aiyar that Section 317 embodies a rule of public policy and that there can be no estoppel contravening that rule.

In my opinion there is no contravention at all of the rule in Section 317 in holding that the 1st defendant is estopped. Section 317 lays down the

rule that where property is brought to sale in court auction a suit cannot be instituted on the ground that the defendant was only a benamidar for the

plaintiffs. The utmost that cpuld be said in favour of the 1st defendant is that the effect of the section is to create some scrt of title in him though this

position is denied by the respondent. But assuming it to be so, what is there to prevent a person who gets title, we shall suppose under a statute,

from afterwards allowing it to be sold as the property of another person? I can find no reason why he should not do so any more than why a

person having a title under a private conveyance should not allow it to be sold as the property of another. The cases cited by Mr. Seshagiri Aiyar

viz., Abdul Aziz v. Khantker Mullick I. L R. (1911) C. 512 A.R. Krishnan Chetty (died) and Others Vs. Vellaichami Thevan (died) and Others,

and Madras Hindu Benefit Permanent Fund v. Ragava Chetty ILR (1895) M. 200 are all inapplicable to the case. The attempt there was to get

behind the very rule itself enacted by the statute by getting up a contention of estoppel. I might also put this judgment on another ground. Section

317 provides ""nothing in this section shall bar a suit to obtain a declaration that the name of any person certified as aforesaid was inserted in the

certificate fraudulently."" After the 1st defendant attested Ex. C. which distinctly stated that the land belonged to the 2nd defendant it was fraudulent

on his part to have obtained in 1907 a sale certificate in his own name.

On these grounds the second appeal must be dismissed with costs.

Sadasiva Aiyar.--As many of the questions argued in the second appeal are important questions, I do not think it inappropriate to add a few

words of my own. If the plaintiffs are obliged to set up a part of their case for relief, the allegation that the 1st defendant made the purchase benami

and cannot succeed except by proving the fact I am inclined to hold that Section 317 will be a bar to the suit. I agree with the observation in

Bishan Dial v. Gazziuddin ILR (1901) A. 175 that although Section 317 should be construed strictly the words of the section ought to be given

effect to if they apply aptly to the plaint put forward by the plaintiff and I am also not inclined to try to whittle away the effect of the section as has

been done in some cases by excluding from its operation cases where the suit is brought against the purchaser''s representatives and assigns. I also

agree with Mr. Seshagiri Aiyar that after the Transfer of Property Act no waiver or transfer of rights can be recognised in the case of immovedble

property of a registered instrument. Hence the observations in Mannappa v. Surappa ILR (1887) M. 234 may not apply to cases of alleged

transfer by the subsequent conduct of the benamidar or by an oral agreement with the benamidar if such conduct or agreement took place after

Act 4 of 1882 came into force. It is also clear as decided in A.R. Krishnan Chetty (died) and Others Vs. Vellaichami Thevan (died) and Others,

that estoppel by itself cannot form the basis of a cause of action or claim. But in this case the plaintiffs are in possession is prima facie evidence of

title. The 2nd defendant had conveyed all his right to 2nd plaintiff and 1st plaintiff''s vendor and could not therefore deny plaintiff''s title and if so the

defendant as contended in paragraph 6 of the plaint is estopped by his conduct from asserting any title as against the plaintiffs. The plaintiffs need

not rely at all upon and need not prove the allegation that their title is based upon 1st defendant having purchased in the court auction sale as the

benamidar of the 2nd defendant. They need only prevent 2nd defendant from claiming any title under tne court auction purchase and they could do

by setting up the doctrine of estoppel.

As regards the question of estoppel also, though the District Judge does not in so many words say that the 1st defendant himself brought about

the sale made by the 2nd defendant to the 2nd plaintiff and 1st plaintiff''s vendor, he says ""it is impossible to concur generally in the lower Court''s

conclusions-of the District Munsif in which the District Judge evidently so concurs seems to me that the 1st defendant did bring about the sale and

did not merely attest the document Ex. C.

I am also of opinion that having regard to the ordinary course of conduct of Indians in this Presidency, attestation by a person who has or claims

any interest in the property covered by the document must be treated prima facie as a representation by him that the title and other facts relating to

title recited in the document are true and will not be disputed by him as against the obligee under the document. I therefore concur in the conclusion

that the second appeal must be dismissed with costs.