Madan Vs. II Additional District Judge & Ors  INSC 158 (9 May 1988)
M.N. (J) Venkatachalliah, M.N. (J) Pathak, R.S. (Cj) Natrajan, S. (J)
1988 AIR 1413 1988 SCR Supl. (1) 247 1988 SCC (3) 137 JT 1988 (2) 574 1988
INFO : RF 1989 SC 758 (11) RF 1990 SC 636 (6,9,10)
Evidence Act, 1872: Section 116-Estoppel in relation to tenants-Whether there
can be denial of title of landlord without tenant renouncing.
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.
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.
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.
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
this Court it was contended by the appellant:
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.
the appeal, it was ^
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- 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]
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]
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]
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.
APPELLATE JURISDICTION: Civil Appeal No. 80 of 1981.
the Judgment and Order dated 10.7.80 of the Allahabad High court in Civil
Miscellaneous W.P.No. 5661 of 1979.
for the Appellant.
for the Respondent.
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).
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.
necessary and material facts may briefly be stated:
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.
it is stated, went away in adoption to the family of one Banvarilal, a brother
of Shamboo Lal.
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.
thereafter, conveyed the property by sale in favour of a certain Gopinath Agrawal.
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.
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.
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
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 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.
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
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.
to the reason underlying this branch of the doctrine of estoppel Marton B said:
(Cuthberton v. Irwing, 28 LJ Ex. 306).
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
Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd. and Ors., 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:
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."
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:
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.
did 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 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."
Now, Section 3(1)(f) which refers to one of the grounds for eviction under the
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.
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.
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.