P L D 1966 (W (PLP)

Qazi Muhammad Ashraf for Petitioners. Syed Ghulam Haider Shah and Qazi Muhammad Salim for Respondent. Date of hearing: 13th October 1964. SARDAR MUHAMMAD IQBAL, J.‑The plaintiffs‑petitioners claim to be the donees of the property, in dispute from their mother, the respondent. According to them the respondent gave an authority to her husband Syed Nasir Hussain Shah to sell or gift away the property on her behalf and he, in his capacity as her lawful attorney, gifted away the property to them of which entries were made in the mutation register. On denial by the respondent of the title of the petitioners, they instituted a suit against her that by virtue of the gift made by the latter in their favour on the 31st of July 1962, they had become owners of the property and she, therefore, should be restrained from interfering with their possession. The defendant‑respondent resisted the suit and by way of preliminary objections she pleaded that the plaintiffs‑petitioners were not in possession and a suit for declaration simpliciter was; therefore, not competent in law. It was further alleged that the suit had not been properly valued for the purposes of Court‑fee. On facts, the case of the defendant was that he had cancelled the power of attorney and her husband consequently could not make any gift and she also challenged the validity of the gift on the ground that the possession of the property bad not been delivered to the plaintiffs‑petitioners.

2. The learned Senior Civil Judge decided the issues arising from the preliminary objections in favour of the defendant and held that the plaintiffs were not in possession and the suit for declaration was not competent. He further held that the suit had not been properly valued for the purposes of Court‑fee. Since the plaintiffs‑petitioners had themselves valued the suit for the purposes of jurisdiction at Rs. 34,500.00 he directed that the same should be the value of the suit for the purposes of Court- fee. The Court allowed the plaintiffs‑petitioners to put in an amended plaint by making up the deficiency in the Court‑fee. The plaintiffs have challenged the said order through this revision petition.

3. The learned counsel for the petitioners argued that the property was in possession of tenants, namely, Muhammad Hussain, Muhammad Ibrahim and Khushi Muhammad and they had by executing lease deeds in favour of the plaintiffs‑petitioners on the 15th of October 1962, attorned themselves to them. According to him, therefore, the plaintiffs‑petitioners are in constructive possession through these tenants. Muhammad Hussain and Muhammad Ibrahim deposed that they were the tenants of the plaintiffs and had attorned in their favour on the 15th of October 1962. It was not denied by them that they were earlier the tenants of the defendant. They also admitted that they had executed lease deeds in favour of the defendant on the 13th of October 1962, i.e., two days prior to the execution of the lease deed in favour of the plaintiffs‑petitioners, There is no denying the fact that all of them were the tenants of the defendant prior to their attornment to the plaintiffs‑petitioners. The defendant‑respondent, therefore, was in possession through her tenants. The fact that these tenants executed lease deeds in favour of the plaintiffs subsequently and that they had attorned themselves to them tantamounts to the denial of title of their landlady. Under section 116 of the Evidence Act, no tenant of immovable property during the continuance of the tenancy can be permitted to deny that the landlord of such tenant had at the beginning of the tenancy title to such immovable property: It is indeed open to a tenant to prove subsequent ceaser of the landlord's title by ouster by the holder of a paramount title and his attornment to the latter without actually going out of possession. In order that an eviction by a person with a title paramount may constitute a good defence, the party evicting must have a good title and the tenant must have quitted against his will. In other words the tenant should have been forced to adopt the course of attorning himself to a person of paramount title. It can happen only when the person armed with an authority to eject has actually ejected' the tenant and he subsequent to his ejectment may become the tenant of such a person. It can also happen in .a case where the tenant is in the imminent danger of ejectment at the hand of a person who has established his paramount title. In such a case the tenant; if he attorns, it will be against his will. In Krishna Prosad Singh v. Adyanath Ghatak (A I R 1944 Pat. 77), it was held that: --‑ "A tenant cannot escape the estoppel merely by saying that his tenancy under the landlord was terminated, either by the delivery of possession, or by the landlord's own act in determining the tenancy and bringing the suit for ejectment. Nor can he escape it merely by saying that he came to an arrangement with a third person claiming a paramount title and attorned to him. Neither of these by itself is enough. The estoppel disappears, however, if the landlord's title is extinguished subsequent to the inception of the tenancy, or if there is eviction by title paramount. No physical dispossession by the person claiming paramount title is necessary. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession, the threat to put him out of possession amounts in law to eviction. If in such circumstances the tenant openly and to the knowledge of his landlord attorns to the true owner, the estoppel is gone. The attornment, however, must be under compulsion. The party evicting must have a good title, and the tenant must have quitted against his will." On the facts of the case, there was no eviction of the tenants, nor threat of eviction, but they voluntarily attorned to the plaintiffs petitioners. The tenants, therefore, cannot be allowed to deny the landlady's title. The law on this point is stated in para. 1213 in Halsbury's Laws of England, (3rd Edition), Volume 23:‑ "Similarly, in order, to constitute an eviction by a person claiming under title paramount, it is, not necessary that the tenant should be put out of possession, or ejectment should be brought. A threat of eviction is sufficient and if the tenant, in consequence of such threat, attorns to the claimant, he can set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor's title. There is no eviction, however, if the tenant gives up possession voluntarily." In Delaney v. Fox (140 E R 621), Wills, J., observed as follows:‑ "It is competent to the tenant to show that his landlord's title has expired; but that has not happened in this case. It is then said that there is another exception to the rule which precludes the tenant from disputing his landlord's title, viz., where the tenant has been evicted by title paramount. No such eviction was proved here. All that appears is, that another person was not evicted from the celler, which was not demised to the plaintiff and that the plaintiff, apprehending that she would be turned out, attorned to the person claiming title." In the present case, it is not proved that the tenants had any apprehension of ejectment. The plaintiff‑petitioner led no evidence on this question. The tenants attorned to the plaintiffs petitioners voluntarily and there was thus no valid attornment of such persons by a person claiming a paramount title. These persons, therefore, continued to remain in the eye of law the tenants of the defendant‑respondent and they are estopped from denying their title. The position, therefore, in law will be that B notwithstanding the attornment of the tenants to the plaintiff s petitioners, they will continue to remain in possession on behalf of the defendant‑respondent. The defendant‑respondent, in law can claim the rent from them and also maintain an action for their ejectment. In either of the cases, it will not be a good defence for these tenants to plead that they have attorned to the plaintiff s petitioners.

4. I may as well mention that I have not been convinced by the evidence of these tenants that they had, in fact, attorned to the plaintiffs‑petitioners at the time of the institution of the suit. The lease deeds relied upon by the plaintiffs‑petitioners were alleged to have been executed on the 15th of October 1962. They were not produced along with the plaint which was filed in the Court on the 14th of November 1962. In the list of documents filed under Order VII, rule 14, C. P. C., those were not shown to have been filed and no reliance was placed on the documents either in Column Nos. 2 or 3 of the said list. They were produced for the first time in the Court on the 29th of January 1963. The defendant‑respondent, on the other hand, has produced Bashir Ahmad (D. W. 1), the Lambardar of the village and Nizam Din (D. W. 3) another Lambardar of the village to depose that the defendant‑respondent had been in possession of the land. The fact that Khushi Muhammad and the other tenants had been in possession on their behalf is also borne out by the entries in Khasra Girdawaris, copies of which are (Exhs. D. 5 and D. 7). Khasra Girdawaris are public documents and are, therefore, admissible in evidence under section 35 of the Evidence Act. They are prepared in regular course of business after inspection on the spot. If the tenants had, in fact, attorned themselves to the plaintiffs‑petitioners, it would have ‑been evidenced by the entries for the year 1962‑

63. It is admitted by Muhammad Hussain, the tenant (P. W. 1) and Muhammad Ibrahim (P. W. 2) that the Patwari used to prepare the Khasra Girdawaris on the spot. On the, evidence led in the case, the learned Senior Civil Judge, held that the plaintiffs petitioners were not in possession. This is a finding of fact, which, in the circumstances of the case, is unexceptionable. The order of the learned Senior Civil Judge that the plaintiffs petitioners were not in possession at the time of the institution of the suit is, therefore, unassailable. I, however, want to make it clear that this finding will have no effect or bearing on the question whether, in fact, possession was delivered to the petitioners at the time when the alleged gift was made on the 31st of July 1962. That question will have to be determined by the Court in adjudicating upon the existence and the validity of the gift itself.

5. It was next contended by the learned counsel for the petitioners that the gift was by a mother in favour of her minor children and it was, therefore, not necessary that the actual possession should have been delivered to the donees. Reliance was placed on Paragraph 155 of the Principles of Muhammadan Law by Mulla, which reads as:‑ "

155. Gift to a minor by father or other guardian.‑No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give." The learned counsel attempted to argue that the defendant respondent being the mother was the guardian of the person of the minors and the principles given in this paragraph were attracted to the present case. The argument is based on some misconception. The mother is only entitled to the hizanat, i.e., the custody of the minor children up to certain ages but cannot be the guardian of the person of the minor during the lifetime of the father. The father remains ‑the guardian for all times in spite of the fact that the hizanat may be in the mother. It may, moreover, be observed that the (guardian) mentioned in the section is a guardian of the property of the minor. The principle laid down in the said section is, therefore, not attracted to the facts of the present case, because the mother is neither the guardian of the person nor of the property of the minor children.

6. The petitioners had instituted the suit for declaration and paid a fixed Court‑fee of Rs. 15 on the plaint. The learned trial Judge held that the suit should have been for a declaration and possession and it was not competent for the petitioners to have instituted a suit for declaration simpliciter. He direct& the plaintiffs‑petitioners to put an amended plaint and to value the suit for the purposes of Court‑fee at Rs. 34,500 which value the plaintiffs themselves had put for the purpose of jurisdiction of the Court. On behalf of the petitioners an exception was taken to the fixation of the amount for the purpose of Court‑fee by the trial Court. It is, however, not denied by him that the land in suit pays no revenue permanently or temporarily settled thereon or has been partially exempted from such payment or is charged with a fixed payment in lieu of such revenue. The Court‑fee is, therefore, not payable under clause (b) or clause (d) of section

7. The land is subject to a fluctuating assessment F and the Court‑fee payable is governed by clause (c) of paragraph (v) of section 7 and is payable on fifteen times the net profits which may have arisen from the land during the year next before the date of presenting the plaint. It was so held in Mahna Singh v. Bahadur Singh (100 P R 1919). The objection raised by the petitioners as to the valuation of the suit for the purpose of Court‑fee is thus untenable.

7. No other point was urged. The petition has no merit which is dismissed accordingly. There shall be no order as to costs. The trial Court will give an opportunity to the plaintiffs petitioners to put in an amended plaint. A. H. Petition dismissed.