1989 PLP 1845 (MLD)

5. The law as to the estoppel of a tenant under S. 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. The section, inter alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. Referring to the reason underlying this branch of the doctrine of estoppel Marton B said (Cuthbertson v. Irving, (1859) 28 IJ Ex 306): " ....This state of the law in reality tends to maintain right and justice and the enforcement of contracts which men enter into with each other, for, so long as a lessee enjoys everything which his lease purports to grant how does it concern him what the title of the lessor ....is?" Shri Asthana may be right in his submission that a tenant who, without disclaiming his own position as tenant, however, seeks proof of title from an alleged assignee of the reversion cannot be held to have denied the landlord's title. It may also be true that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is not precluded from questioning the alleged derivative title of a person claiming to be the successor to or assignee of the reversion, for want of proof of the vestitive facts on which the claim for attornment is based. The rule of estoppel does not also preclude a tenant from contending that the landlord's title has since terminated by transfer or otherwise or has been lost or defeated by title ?paramount. In English case law there was some authority for the proposition that the tenant was estopped from denying his landlord's title only if at the time he took the lease from the landlord he was not already in possession of the land. In Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd., AIR 1937 PC 251 the Judicial Committee noticed this contention thus: "The defendant company contended before the High Court that the section only applies where it is shown that the landlord put the tenant into possession of the property and that when a person already in possession of land becomes tenant to another there is no estoppel against his denying his lessor's title ...." However, it was held :-- "There is in English case-law some authority for the view that a tenant is only estopped from denying his landlord's title if at the time when he took his lease he was not already in possession of the land. But in S. 116, the Indian Legislature has formulated no such condition. The words "at the beginning of the tenancy" give no ground for it. When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor's title and the benefit of his covenants, it is difficult to see why `during the continuance of the tenancy' he should be-free of this form of estoppel. `Tenant who has occupied but not entered' is a difficult notion to thrust into S.116 and quite impossible to find therein." 6-7. In the present case the plea of the landlord is that the general principles of estoppel preclude the tenant from denying the title of the person to whom he has attorned. In Kumar Krishna Prasad's case their Lordships observed: "????.The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversions, though in such cases there may be other grounds of estoppel e.g., by attornment, acceptance of rent etc???" "The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant????.Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside S. 116 altogether, then ...." (Emphasis supplied). In regard to the effect of attornment Spencer Bower on Estoppel, says "

192. Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenancy to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned. But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that when he so attorned he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person." (Emphasis supplied); (Estoppel by Representation by Spencer Bower & Turner-III Edn.) The concurrent findings-of facts in this case--it is indeed a matter admission of the appellant--that ever since the purchase by Gopinath Agarwal t: appellant attorned the tenancy in his favour and paid rent to him. Appellant d not establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment. High Court observes: "??????In the Courts below, an attempt was made to get over the effect of the defendant having attorned to Gopmath Agarwal by trying to demonstrate that the attornment was as the result of fraud and mis-representation practised, by Gopinath Agarwal. Both the Courts below have rejected this plea, which is un-disputably purely one of fact. Counsel for the petitioner made no attempt to show that the said finding of the Courts below is wrong." 8.???????? Now, S.3(1)(f) which refers to one of the grounds for eviction under the Act envisages: "(f)that the tenant has renounced his character as such or .denied the title of the landlord and the latter has not waived his right or condoned the conduct t the tenant;" There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of Jus tertii. The stance of the appellant against the third-respondent's title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latter's vendor- Mainavati herself had no title. The derivative title of the third-respondent is not denied on any ground other than the one that the vendor Gopinath--to whom appellant had attorned--had himself no title, the implication of which is that if appellant could not have denied Gopinath's title by virtue of the inhibitions of the at tornment, he could not question third-respondent's title either. Appellant did himself no service by this stand. It must, accordingly, be held on both the aspects contended for by Shr, Asthana that what appellant did, indeed, amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant. The principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Having regard to the circumstances of this case and the findings of fact recorded by tile High Court it appears to us to be a clear case which attracted the grounds under section 3(1) of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (Act 3 of 1947). The view taken by the High Court does not call for interference. We accordingly find no merit in this appeal which is dismissed but without an order as to costs. M. B. A./133/F.C.?????? Appeal dismissed.