Case: TEJ BHAN MADAN Vs. II ADDL DISTRICT JUDGE AND OTHERS

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 Lai Jain. Shamboolal 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 stared, went away in adoption to the family of one Banvarilal, a brother of Shamboolal. Pursuant to and in execution of a money-decree obtained 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.3. 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 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.4. The provocation for the denial of the part of the Appellant of the third Respondents 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-debtor, i.e. Dhoomchand, had and that the Court-sale did not convey to Mainavati the interest of Rajuldevi, 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 Mainavatis 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 Gopinaths interest subsisted. The question was whether despite this attornment, the Appellant could assail Gopinaths title. Appellant sought to assert that the sale in favour of Gopinath was void and conveyed nothing.5. 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 Appellants - writ petition has upheld the order of ejectment made by the Courts below.

Reasoning: 8. The law as to the estoppel of a tenant u/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 at the beginning of the tenancy, had title to such property.10. 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 landlords title. It may also be true that the estopple 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 landlords title has since terminated by transfer on 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 only estopped from denying his landlords title only if at the time he took the lease from the landlord he was not already in possession of the land.11. In AIR 1937 251 (Privy Council) 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 lessors 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 landlords 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 grantors 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.12. In the present case the plea of the landlord is that the general principles of estoppel preclude the tenant from denying the tide of the person to whom he has attorned.14. 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 on the part of Gopinath or mistake on the part of the Appellant misleanding 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 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 undisputably purely one of fact. Counsel for the Petitioner made no attempt to show that the said finding of the courts below is wrong.14. Now. Section 3 (1) (f) which refers 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 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 set up a plea of jus-tertii. The stance of the Appellant against the third-respondents title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latters 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 Gopinaths title by virtue of the inhibitions of the attornment, he could not question third-respondents title either Appellant did himself no service by this stand.15. It must, accordingly, be held on both the aspects contended-for 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 foundation means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate.