Venkata Chetty vs Aiyanna Goundan

Abdur Rahim, Officiating C.J.

The question referred to us is in these terms:--Whether a tenant who has executed a lease but has not been let into possession by the lessor is

estopped from denying his lessor''s title in the absence of proof that he executed the lease in ignorance of the defect in his lessor''s title or that his

execution of the lease was procured by fraud, misrepresentation or coercion? Mr. Justice Coutts Trotter, one of the learned Judges who made the

reference, is of opinion that a tenant is altogether estopped from denying the title of the landlord who has let him into possession. So far there can

be no doubt as to the law in India or in England. Section 116 of the Indian Evidence Act which says "" 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"" is quite clear on the point. It does not recognise any exception exempting from the operation of

estoppel cases in which the tenant was either ignorant of his landlord''s title or was induced by fraud or misrepresentation to enter upon the

tenancy. It is only when the tenancy ceases, that he is free to deny the landlord''s title, but not till then. Their Lordships of the Privy Council in Bilas

Kunwar v. Desraj Ranjit Singh 2, say "" Section 116 of the Indian 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 might be, so

long as he has not openly restored possession by surrender to his landlord.

But it has been argued before us on behalf of the plaintiff landlord, firstly, that Section 116 is not confined to cases where the tenant has been let

into possession by the landlord whose title he seeks to deny and alternatively, in the next place, that the section is not exhaustive of the law of

estoppel between tenant and landlord. As to the first contention, I entertain no doubt that the landlord whose title the tenant is estopped from

denying is only the person from whom the tenant derived his tenancy and not his predecessor-in-title. Does the section then apply to a case where

the tenant has been in possession of the land before the date of the acquisition of his title by the landlord 2 The words ""at the beginning of the

tenancy "" do not in my opinion refer to the commencement of the particular lease or contract between the tenant and the landlord, but to the

beginning of the occupation of the land by the tenant or by the person through whom he claims. If I am right in thinking that the estoppel enunciated

in Section 116 is absolute in its nature and we were to apply it in favour of a landlord who has a derivative title and did not let the tenant into

possession but to whom the tenant attorned either by executing a lease or paying rent, then we should be laying down a proposition which goes

further than the law on the subject in England. In Woodfall''s Law of Landlord and Tenant, page 249, 19th edition, the law in England is thus

stated. "" The rule that a tenant may not dispute his landlord''s title applies only to the title of the landlord who let him in "" and this is how I

understand the observation of the Judicial Committee in Bilas Kunwar v. Desrqj Runjit Singh I.L.R (1915) A. 557 as to the scope of Section 116.

The argument that Section 116 is not exhaustive on the question of tenant''s estoppel cannot in my opinion be accepted. In Sarat Chunder Dey

v. Gopal Chunder Laha ILR (1892) C. 296 the Judicial Committee dealing with a case of estoppel by conduct has ruled that the question must be

determined with reference to Section 115 of the Evidence Act though they proceeded to point out that it did not enact anything different from the

law in England. But however useful it might be to refer to English decisions to explain the principle underlying the enactments of the Evidence Act, it

is from the Evidence Act alone that the law on the subject is to be gathered.

Bearing this in mind, I shall advert briefly to some of the English cases. In Carlton v. Bowcock and Anr. (1884) 51 L.T. Rep. 659 Gave, J. held

where a person claiming to be the assignee of the reversion receives rent from the tenant by fraud or misrepresentation, such payment is no

evidence of title, but where there is no fraud or misrepresentation, such payment is prima facie evidence of title and the tenant can only defeat that

title by showing that he paid the rent in ignorance of the true state of the title and that some third person is the real assignee of the reversion and

entitled to maintain ejectment. "" Here clearly there is no allusion to any rule of estoppel such as is dealt within Section 116 of the Indian Evidence

Act, the question before the learned Judge being treated as one of appreciation of evidence in support of the landlord''s title and of onus of proof.

Much reliance is however placed on another passage in the judgment of Cave, J. where he observes "" A tenant of a house who pays rent to one

who claims to be assignee of the reversion is not estopped from denying the title of the assignee in the same way that he is estopped from denying

the title of the lessor by whom he has been let into possession.

Reading the two passages together, I am not satisfied that the learned Judge intended to formulate a modified form of estoppel in cases like the

one before him. Apart from any technicalities of pleading to which we attach very little importance in India, the effect of the so-called rule laid

down in Carlton v. Bowcock and Anr. (1884) 51 L.T. Rep. 659 in its practical operation would amount to this:--the fact of payment of rent or

execution of a lease is prima facie proof of title in the person who receives the rent or in whose favour the lease executed and if the tenant is unable

to get rid of the effect of these facts by showing that he was acting in ignorance and that the title was in some person other than the persons to

whom he paid the rent, he would have no defence to a suit for rent or in ejectment. It is perfectly clear from the authorities cited in the judgment of

Mr. Justice Cave that it is open in such cases to the tenant to prove that the title is in fact in some third person. It will be seen that in the other

English cases also cited in the Order of Reference, the fact of payment of rent to a person who did not let the tenant into possession is really

treated as proof of the existence of relationship of landlordand tenant and naturally as a conclusive proof in the absence of adequate explanation.

Coming to the Indian decisions, the view that hag found favour in this Presidency is that estoppel applies only where the tenant has been let into

possession by the landlord in question; Bankala Vittil Usman Koya and Another Vs. Chidriamokkausa Akoth and Another, Yerraguntla

Seshacharlu v. Mukkumalla Chinniah (1914) 25 Ind. Cas. 721 Annayyan v. Chinnan ILR (1909) Mad., 366 and Viswanadha Row v. Chinna

Kolandai Nainar (1913) 1 L.W. 197. The same view was expressed in Lal Mahomed v. Kallanus ILR (1885) Cal., 519 though that case was

sought to be distinguished in Ketu Das v. Surendra Nath Sinha (1908) 7 C.W.N., 596 where Mitter and Brett, JJ. gave effect to the modified form

of estoppel suggested in the Order of Reference. In Lodai Mollah v. Kally Dass Roy ILR (1881) Cal. 238 also, it was held, after reviewing the

English decisions (Rogers v. Pitcher (1815)6 Taunt., 202 claridge v. Mackenzie (1842) 4 M. & G. 143 and Gregory v. Doidge (1826) 3 Bing.

474 that "" where the plaintiff claims by a derivative title and the defendant has attorned to him, the defendant is not thereby estopped from showing

that the title is really not in the plaintiff but in some other person"". I entirely agree in that proposition.

I would therefore answer the question in this way:--A tenant who was let into possession is estopped from denying a landlord''s title. A tenant

who was not let into possession by the person seeking to eject him is not estopped from denying the plaintiff''s title ; he may show that the title is in

some third person or in himself. But the execution of a lease or payment of rent by the defendant is a prima facie proof of the plaintiff''s title which

the Court dealing with the evidence will ordinarily treat as conclusive in his favour unless the fact is sufficiently explained. In most cases of this

nature the presumption in favour of the plaintiff can only be displaced by the defendant showing that the attornment was made by him in ignorance

of the plaintiff''s title or was induced by fraud, misrepresentation or coercion.

The answer to the question referred to us will be in the affirmative as proposed by my learned brothers Seshagiri Aiyar and Phillips, JJ.

Seshagiri Aiyar, J.

I have the misfortune to differ from the learned Chief Justice in this case.

The question has been argued more fully than on the last occasion and some fresh light has been thrown upon some of the points. I consider it

therefore desirable that I should restate my conclusions.

The facts were fully stated by me in the order of reference and it is not necessary to recapitulate them here. The question whether the Indian

law of evidence is exhaustive need not be discussed, as I am of opinion that Section 116 is general in its terms and does not preclude the

consideration of English decisions to understand its import. It is only where the law is silent on some points, the question whether it should be

supplemented by principles deducibie from English authorities can arise. That is not the present case.

I shall first deal with the section itself. The chapter dealing with Estoppel comprises three sections. The first one, Section 115, enunciates the

general rule and prescribes no limit before or after which parties can recede from their relationship. Section 116 which deals with a particular

species of Estoppel in pa/is introduces limitations regarding its operation. It is not as stringent as the general estoppel and gives freedom to parties

to resile from their position under certain circumstances. Section 117 deals with a particular class of Estoppel by deed and imposes some

limitations on its applicability. In English textbooks it is pointed out that Estoppel in pais may spring from (1) Livery of Seisin, (2) Entry, (3)

Acceptance of rent, (4) Partition, or (5) Acceptance of an Estate. There is no reason to suppose that the framers of the Indian Evidence Act were

not legislating for all kinds of tenancy when they were dealing with the relationship of landlord and tenant in Section 116. In my opinion, all the first

three classes of ""Estoppel in pais"" were intended to be comprised in the rule indicated in Section 116. There is nothing in the section to lead to the

contrary conclusion. All tenants, including those who have attorned by deed to the landlord, must have been in the contemplation of the Legislature,

because there is no indication that any were to be excluded. Prima facie, therefore, the section applies to tenants who have been let into possession

as well as to those who have acknowledged the landlord by executing a deed by paying rent or otherwise. The words ""at the beginning of the

tenancy"" do not spell that only persons let into possession are within their connotation. There must be a beginning of the tenancy in all cases where

the relationships of landlord and tenant can be predicated. I do not see any reason for narrowing their applicability to tenants to whom first

possession is given.

One other point may be mentioned before dealing with the decided cases. The rule of law enunciated in all the sections of this chapter is

subject to the general proposition that they would not avail against any statute. There have been numerous cases on this point u/s 115. The latest is

Vaikuntarama Pilled v. Authimoolam Chettiar ILR (1914) M. 1071 This doctrine would apply equally to Section 116. Therefore, if the estoppel

pleaded can be proved to contravene the law, e. g., the law of contracts, the estoppel will not be given effect to. That is the foundation of the rule

that the tenant in avoiding the estoppel can show that he has been induced by coercion, undue influence, misrepresentation, fraud or mistake

(ignorance will be included in this last term). To put it shortly, the contract of tenancy can be avoided if it is subject to any of the infirmities which

the Indian Contract Act has enumerated in Sections 13 to 20 of the Act. This is the general rule.

There is an apparent exception to this rule in the case of tenancies which commence with the tenant being let into possession. The basis of the

distinction is this. A person cannot both approbate and reprobate. If he has got into possession with the consent of another, he is bound to vacate

and surrender possession before he can be heard to say that that other had no right to put him in possession. He should not be allowed to use the

privilege given to him to attack the man who conferred it. That is the reason why a person who is let into possession is required to give it up before

he disputes the title of the person who put him in. As a matter of fact, I find nothing in Section 116, to the effect that there should be a surrender of

possession before title is disputed. But that is the law in England ; and that has been read as being within the meaning of Section 116. Bilas Kunwar

v. Desraj Ranjit Singh ILR (1915) A. 557 Subject to this further reservation in favour of the landlord, I am of opinion that Section 116 deals with

estoppels of every kind as between landlord and tenant and that there is no justification for narrowing its scope.

On one point, my mind was fluctuating a great deal during the course of the argument and it is this : Whether, when we speak of the estoppel in

Section 116 being dependent upon proof that the contract is not vitiated by the infirmities to which all contracts may be subjected, it is not a mere

question of burden of proof. After consideration, I incline to the view that the term estoppel is not misapplied in such cases. What is meant is, that it

is open to a tenant to raise the preliminary issue that the contract is void or voidable. If the preliminary issue is in his favour, the relationship is not

established. If it is found against him, he will be precluded from agitating the broader question that the landlord had no title when the relationship

came into existence. Even where the stricter estoppel operates, which compels a party to surrender possession first, there may be a preliminary

issue whether the tenant was first let into possession by the landlord. After all, in a sense, all rules of estoppel are rules of evidence and the fact that

in the case of ordinary contracts of tenancy, the tenant is allowed more scope to impeach the relationship is not a ground for saying that on the

question of the disproof of title, there is no estoppel.

I have made these general remarks, as in my opinion, the rules of English Law to which I referred in the Order of Reference, are consistent

only with the considerations I have above set forth.

As regards decided cases, it is clear that the preponderance of authority is in favour of the view that the section applies also to tenancies other

than those in which the tenant was first let into possession. In Madras, we have Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetty

ILR (1895) M. 200 and Kunyil Parkum Putthukkayi Kottayi Kanaran Vs. Varanakot Illath Ganapathi Nambudri and Others, and Gavarayyamma

v. Dundi Seetharamaswami (1914) 1 L.W. 821. In Calcutta there is the authority of Ketu Das v. Surendra Nath Sinha 7 C.W.N. 596 which fully

and elaborately considers the question. See also Bhyro Singh v. Rajah Leelanund Singh Bahadoor (1874) 21 W.R. 153 In Allahabad, the current

of decisions is all one way. Girdhari Lal v. Kalloo Mestri (1913) 22 I.C. 213 and Ganapat Rai v. Multan ILR (1916) A. 226 and the cases cited in

it. In Bombay also the view has been that the section is comprehensive enough to cover all cases of tenancy. Vasudev Daji v. Babaji Ranu (1871)

8 Bom. H.C.R. 175 and Trimbak Ramachandra v. Shekh Gulam Zilani I.L.R (1909) B 329 On the other hand, Annayyam v. Chinnan ILR (1909)

M. 366 and those that follow it, namely, Viswanadha Row v. Chinnakolandai Nainar (1913) 1 L.W. 197 and Yerraguntla Seshacharlu v.

Mukkumalla Chinniah (1914) 25 I.C. 721 take the narrower view and they purport to follow the earlier Calcutta decision in Lal Mahomed v.

Kallanus ILR (1885) C. 519 As I said before, the view which I have been suggesting is more widely accepted in this country than the other one.

As regards English cases, Mr. Seshachariar has not drawn our attention to any which is in conflict with those that were cited by me and by Mr.

Justice Coutts Trotter in the Order of Reference. I do not propose to refer to them again. I may however refer to a few more cases and to the

conclusions stated by textwriters on this subject. In Cooke v. Loxley (1792) 5 T.R. 4 the tenant was already in possession under another and

acknowledged the new landlord by paying him rent. Lord Kenyon, C.J., held that the tenant cannot give evidence of want of title in the landlord. In

Cooper v. Blandy (1834) 1 Bing 45 the predecessors-in-title of the plaintiff were put in possession by the landlord. The plaintiff succeeded them

and disputed the title of the landlord. In a very strong judgment, Tindal, C.J. points out that a person although not put in possession by the landlord

will be estopped from denying his title if he has been in occupation of the premises. To the same effect is the decision in Panton v. Jones (1813) 3

Campb. 372.

Coming to the recognised text writers, I find Woodfall in his book states the proposition thus : "" If the defendant has expressly attorned to the

plaintiff, he will thereby be estopped from disputing the plaintiff''s title, unless such attornment be proved to have been obtained by fraud, or

through some mistake of facts.

In Fawcett''s book on Landlord and Tenant p. 77 after a full discussion of the cases bearing on the question, it is stated, ""where a person in

possession of land recognises a subsisting tenancy under another whether by payment of rent, by submission to distress, or otherwise, he is

similarly estopped from disputing the title of that other, although he did not originally receive possession from him."" Foa is equally explicit. See page

425 in the third edition. Bigelow in his book on Estoppel says that "" payment of rent is evidence of permissive occupation and when

unaccompanied by fraud or mistake establishes the relation of landlord and tenant and is the ordinary evidence upon which the estoppel arises,

though it is by no means the only evidence upon which the estoppel may be founded."" I do not think it necessary to multiply citations any further. In

my opinion the estoppel of the tenant u/s 116 is not confined to cases where possession was originally obtained from the landlord but extends to all

cases of tenancy. I would therefore answer the questions referred to us in the affirmative.

Phillips, J.

I agree generally with the judgment that has just been delivered by my learned brother Seshagiri Aiyar, J., but I have a few words to add. The

question referred for our consideration is in a somewhat restricted form and assumes that when a tenant has not been let int6 possession by his

landlord he is not absolutely estopped from denying his landlord''s title but can plead ignorance of the defect of title, fraud, misrepresentation or

coercion and we are asked to decide whether when such pleas have failed such a tenant can prove that his landlord''s title is defective.

The proposition that a tenant not admitted into possession by his landlord is not absolutely estopped from denying his landlord''s title and could

raise the pleas just above mentioned is laid down in Ketu Das v. Surendra Nath Sinha (1903) 7 C.W.N. 596 and is in accordance with the

decision in Lodai Mollah v. Kally Dass Roy ILR (1881) C. 288 and Gridhari Lal v. Kalloo Mestri (1913) 22 I.C 243. It has also been held that

Section 116 of the Evidence Act is not applicable to a tenant who has not been let into possession by his landlord, Lal Mahomed v. Kallanus ILR

(1885) C. 519 and Yerraguntla Seshacharlu v. Mukkumalla Chinniah (1911) 25 I.C. 721 and Annayyan v. Chinnan ILR (1909) M. 366 A

contrary view has been taken by Oldfield, J. in Gavarayyamma v. Dundi Seetharamaswamy (1914) I.L.W. 821 following Madras Hindu Mutual

Benefit Permanent Fund v. Ragava Chetti ILR (1895) M. 200 Section 116 of the Evidence Act does not specifically make any reference to a

tenant being let into possession but it states that he is estopped from denying his landlord''s title "" at the beginning of the tenancy. "" These words

have been interpreted in different ways and it has been held that "" the beginning of the tenancy "" means "" the time when the tenant was first let into

possession, "" but it appears to rue that this is an unnecessarily narrow interpretation to put upon the words. It seems that the question as to whether

a tenancy begins at a certain time depends upon whether there was any agreement between the tenant and the landlord which constitutes a new

tenancy. It may be that the tenant was in possession before the new tenancy began : but it may happen that in attorning to a new landlord he

executes a lease which constitutes a new tenancy on terms differing from the previous one. Can it be said in such a case that this attornment was

not the beginning of a new tenancy? I think not. On the other hand, a tenant may continue to hold on the strength of the subsisting lease and, on the

death of his original landlord, may continue the payment of rent to the person purporting to be his landlord''s successor. In such a case when there

is no specific agreement between the new landlord and the tenant, it cannot be slid that a new tenancy has arisen. The tenant holds under his old

lease and is merely continuing payment of rent in accordance with the claim put forward by his supposed landlord. The payment of rent is no doubt

evidence of the payee''s title as landlord but is not in itself sufficient to create a new tenancy. It therefore seems to me that the question to be

decided u/s 116 of the Evidence Act is not so much whether a tenant has been let into possession or not, but whether a new tenancy has arisen. If

it is proved that there is a new tenancy, then under the words of the section, the tenant is estopped during the continuance of that tenancy from

denying his landlord''s title at the beginning of the tenancy and in such a case, I am of opinion that he is absolutely estopped and cannot even raise

the pleas of fraud, misrepresentation, etc., which would ordinarily render the contract voidable and I would hold this on the principle that a person

cannot approbate and reprobate. He has taken advantage of the supposed title of his landlord to obtain his lease and therefore so long as he

wishes to hold the property under that lease, he cannot be heard to say that his landlord had no right to grant it. What he must do before he denies

the landlord''s title is to deliver up possession of the property. This proposition is laid down clearly in Bilas Kunwar v. Desraj Ranjit Singh ILR

(1915) A. 557 in which their Lordships of the Privy Council say "" Section 116 of the Indian 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."" Here, we find the words ""let into possession,

but it does not appear to me that any emphasis is laid upon these words and the principle would be the same whether a man was let into

possession or whether he was continued in such possession by a specific agreement between himself and his landlord. u/s 111 of the Transfer of

Property Act a lessee is bound to'' deliver possession at the end of the tenancy and consequently if he wishes to support the title of a third party, he

can only do so after he has surrendered the lease to his original landlord.

In the case of a tenant who has not been let into possession or has not been continued in possession under the terms of a new tenancy, the

position is somewhat different and that seems to be the case which has been referred to us. Such a tenant is not in the same position as the tenant

with whose case I have already dealt. He has not obtained the lease on the strength of an agreement with the new landlord and consequently he

may set up pleas, which are always available to a person who has made a contract, such as fraud, misrepresentation, or mistake; but unless he is

able to prove one of these pleas, he is bound by his contract; and in the same way, I think, the tenant by payment of rent having impliedly made a

contract with his landlord is bound by it unless he can prove these pleas. The case referred to us assumes that these grounds for avoiding the

contract do not exist and consequently, I would hold that such a tenant is estopped from denying his landlord''s title. It seems to me to be

unnecessary to consider the question whether Sections 115 to 117 of the Evidence Act are exhaustive, for in the present case, there is no reason

to go beyond the provision in Section 116 of the Evidence Act which undoubtedly reproduces the English law on the subject. In Sarat Chunder

Dey v. Gopal Chunder Laha ILR (1892) C. 296 the Privy Council remark that Section 116 of the Evidence Act was not different from the English

law of estoppel and that there was no warrant for adding qualifying conditions and we find a similar remark in Asmatunnessa Khatun v. Harendra

Lal Biswas ILR (1908) C. 901. English cases may no doubt be referred to for ascertaining the principles which underlie the provisions of the

section ; but certainly in a case like the persent, I think we should be guided by the words of the section itself.