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PETITIONER: TEJ BHAN MADAN

       Vs.

RESPONDENT: II ADDITIONAL DISTRICT JUDGE AND OTHERS

DATE OF JUDGMENT09/05/1988

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) PATHAK, R.S. (CJ) NATRAJAN, S. (J)

CITATION:  1988 AIR 1413            1988 SCR  Supl. (1) 247  1988 SCC  (3) 137        JT 1988 (2)   574  1988 SCALE  (1)1083  CITATOR INFO :  RF         1989 SC 758  (11)  RF         1990 SC 636  (6,9,10)

ACT:      Indian Evidence  Act,  1872:  Section  116-Estoppel  in relation to  tenants-Whether there can be denial of title of landlord without tenant renouncing.      Uttar Pradesh  (Temporary) Control of Rent and Eviction Act, 1947:  Section 3(1)(f)-Denial  of title of the landlord by tenant-Forfeiture of tenancy-When arises.

HEADNOTE:      Mainavati, who  had purchased  the premises in question at a  court-sale, conveyed  the same  by sale  in favour  of Gopinath. The  appellant who  was in occupation attorned his tenancy in  favour of  Gopinath. Gopinath, in turn, sold the property in  favour of  Chhaya Gupta,  the third respondent. The appellant-tenant on being asked to attorn the tenancy in favour of  Chhaya Gupta,  declined to do so and assailed not only the  derivative title  of the  third respondent  to the property but  also the  validity of  the sale  in favour  of Gopinath himself  on  the  ground  that  Mainavati  had  not acquired the  totality of  all rights  and interests  in the property and, as such, her title was defective.      This act of disclaimer of the title of Gopinath to whom the appellant had attorned was the foundation of proceedings in ejectment.  The High  Court, dismissing  the  appellant’s writ petition,  upheld the  order of  ejectment made  by the Courts below.      Before this  Court it  was contended  by the appellant: (1) that  the High  Court was  in error in its view that the stand taken  by the appellant amounted in law to a denial of title of  the landlord,  and (2)  that the  view of the High Court on the scope of a tenant’s estoppel was erroneous.      Dismissing the appeal, it was ^      HELD: (1)  The law as to the estoppel of a tenant under Section 116  of the  Evidence Act  was  a  recognition,  and statutory  assimilation,   of   the   equitable   principles underlying the doctrine of estoppel in rela-

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248 tion to  tenants. The  Section was not exhaustive of the law of estoppel.  The section  inter-alia,  predicated  that  no tenant of  immovable property  during the continuance of the tenancy, would  be permitted  to deny  that the  landlord of such tenant  had, at  the beginning of the tenancy, title to such property. [251B-C]      (2) There  could be  a  denial  of  the  title  of  his landlord without  the tenant renouncing his own character as a tenant,  where, for  instance, he had set up a plea of Jus tertii. [254B]      (3) The  derivative title  of the  third-respondent was not denied on any other ground than the one that the vendor, Gopinath-to  whom  appellant  had  attorned-had  himself  no title, the  implication of which was that if appellant could not  have   denied  Gopinath’s   title  by   virtue  of  the inhibitions of  the attornment, he could not question third- respondent’s  title  either.  What  appellant  did,  indeed, amounted to  a denial of title which appellant was precluded from doing  on the  general principles  of estoppel  between landlord and tenant. [254C-D]      (4) Having  regard to  the findings of fact recorded by the High  Court, it  appeared  to  be  a  clear  case  which attracted the  grounds for  eviction under  section 3 (1) of the Uttar  Pradesh (Temporary)  Control of Rent and Eviction Act, 1947. [254E-F]      Kumar Krishna  Prasad Lal  Singha Das  v. Baraboni Coal Concern Ltd., AIR 1937 PC 251, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  80 of 1981.      From the  Judgment  and  Order  dated  10.7.80  of  the Allahabad High  court in Civil Miscellaneous W.P.No. 5661 of 1979.      Manoj Swarup for the Appellant.      S.K. Bagga for the Respondent.      The Judgment of the Court was delivered by      VENKATACHALIAH, J.  This appeal,  by special  leave, by the tenant  arises  out  of  and  is  directed  against  the Judgment dated  10.7.1980 of  the Allahabad  High  Court  in Civil Misc.  Writ Petition  No. 5661  of 1979  rejecting the appellant’s challenge to of the decrees of ejectment 249 granted in  favour of  the third  respondent-landlord on the ground that  there was a denial of the title of the landlord within the  meaning, and for purposes, of Section 3(1)(f) of the Uttar  Pradesh (Temporary)  Control of Rent and Eviction Act, 1947 (Act III of 1947).      The appeal  raises a  short question  whether,  in  the circumstances of  the case,  there was  a disclaimer  on the part of  the appellant  of the  landlord’s title,  so as  to incur forfeiture of the tenancy.      2. The  necessary and  material facts  may  briefly  be stated:      The  premises  in  question,  i.e.  No.  7/3,  Shambhoo      Barracks, Allahabad,  originally belonged  to a certain      Shambhoo Lal  Jain. Shamboo  Lal died  in the year 1943      leaving behind  him his widow Rajul Devi; his two sons,      Dayachand and  Dhoomchand; and  a  daughter  Mainavati.      Dayachand, it  is stated,  went away in adoption to the      family of  one Banvarilal,  a brother  of Shamboo  Lal.      Pursuant to and in execution of a money-decree obtained

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    by the  said Mainavati  against her brother Dhoomchand,      she brought  the said  premises for sale and claimed to      have purchased  the same  at a Court-sale on 21.5.1956.      Mainavati, thereafter, conveyed the property by sale in      favour of a certain Gopinath Agrawal.      Appellant who  was in  occupation of  the premises as a tenant even prior to the sale attorned the tenancy in favour of the  purchaser Gopinath  and came  to pay  the  rents  to Gopinath accordingly.  Gopinath, in  turn, sold the property in favour of Chhaya Gupta, the third respondent herein. Both the vendor-Gopinath  and the  purchaser-Chhaya Gupta  issued notices to  the appellant to attorn the tenancy in favour of the purchaser,  Chhaya Gupta.  But appellant-tenant declined to do  so and  assailed not only the derivative title of the third-respondent to  the property  but also  the validity of the sale in favour of Gopinath himself.      3. The  provocation for  the denial  on the part of the appellant of the third respondent’s title was this: It would appear that in a separate litigation which culminated in the judgment dated 6.7.1971 of the Allahabad High Court in First Appeal No. 260 of 1968 between the said Mainavati on the one hand and  a certain Chamanlal on the other, it was held that what Mainavati  had acquired  under the  execution  sale  of 24.4.1956 was  not the  totality of all rights and interests in the property, but was only such right, title and interest as the judgment- 250 debtor, i.e. Dhoomchand, had and that the Court-sale did not convey to Mainavati the interest of Rajul Devi, the widow of Shamboolal  Jain.  It  was  also  held  that  Chamanlal  who obtained a  decree against both Dhoomchand and the estate of Shamboolal would,  notwithstanding the  sale  in  favour  of Mainavati, be  entitled to  bring the residuary interests in the same  property for  sale  in  his  execution.  Appellant sought to  raise this  defect in  Mainavati’s title. But the point to  note, however,  is that the appellant had attorned the tenancy  in  favour  of  Gopinath  Agarwal,  paid  rents through-out the  period  during  which  Gopinath’s  interest subsisted. The question was whether despite this attornment, the  appellant  could  assail  Gopinath’s  title.  Appellant sought to  assert that  the sale  in favour  of Gopinath was void and conveyed nothing.      This act,  on the  part of the appellant, of denial and disclaimer  of   the  title   was  the   foundation  of  the proceedings in  ejectment. The  High Court,  dismissing  the appellant’s writ petition, has upheld the order of ejectment made by the Courts below.      4. We  have heard  Shri K.B.  Asthana,  learned  Senior Counsel for  the appellant  and Shri  B.D. Aggarwal, learned Senior Counsel  for  the  contesting  third-respondent.  The point that  Shri Asthana  sought to  put across was that the High Court  was in error in its view that the stand taken by the appellant in his reply dated 3.4.1972 amounted in law to a denial  of title of the land-lord and that, at all events, the view  of the  High Court  on the  scope  of  a  tenant’s estoppel was  clearly untenable.  Learned counsel  submitted that the  estoppel of  a tenant does not go so far as to bar him from  questioning the derivative title of an assignee of the reversion or from contending, as here, that, in addition to the  particular person  claiming to  be the  successor or assignee of  the reversion,  there were also others who were co-owners of  the reversion.  On the  first aspect,  learned counsel submitted  that where  a tenant  requires  from  the person, claiming  to be assignee or successor-in-interest of the reversion,  proof of  the vestitive  facts on  which the

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claim rests  or where  the tenant alleges that the reversion vested not  exclusively in  the person so claiming, but in a body of  co-owners, there  was no disclaimer of the position of the tenant as tenant.      On the  second aspect,  learned counsel  submitted that estoppel of  a tenant is in respect of, and confined to, the title as  at the  time the  tenant was  inducted or let-into possession,  that   appellant  could   yet  show   that  the attornment made in favour of Gopinath Agarwal, from 251 whom the  third respondent  claims, was  in ignorance of the full facts  and the  result of fraud and mis-representation, and   that    under   these    circumstances,    appellant’s acknowledgment of  Gopinath Agarwal  as the  landlord, would not debar  him from contending that Gopinath himself was not the full owner, but had acquired only an undivided share and interest in the property.      5. The law as to estoppel of a tenant under Section 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: (Cuthberton v. Irwing, 28 LJ 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 every-thing which his           lease purports  to grant  how does  it concern him           that 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 otherise or has been lost or defeated by title-peramount. In English  case   law  there   was  some   authority  for  the proposition that  the tenant  was only 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.  and  Ors.,  AIR  1937  PC  251  the  judicial committee noticed this contention thus: 252           "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...."

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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  Section  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           Section 116 and quite impossible to find therein."      6. 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 Section 116 altogether ......"                                          (emphasis supplied) 253      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           tenant  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 is  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 of  admission of  the appellant-that  ever- since  the   purchase  by  Gopinath  Agarwal  the  appellant attorned the  tenancy in  his favour  and paid  rent to him. Appellant did not establish that there was misrepresentation

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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   Gopinath  Agrawal   by  trying   to           demonstrate that  the attornment was as the result           of  fruad   and  mis-representation  practised  by           Gopinath  Agrawal.  Both  the  Courts  below  have           rejected this  plea, which  is undisputably 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,  Section 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 254                waived his  right or  condoned the conduct of                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  attornment, 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  Shri  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 cricumstances 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 the 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. R.S.S.                                     Appeal dismissed. 255