Report No. 185

Section 116

This Section refers to 'Estoppel of tenant and of licensee of persons in possession'. It reads as follows:

"116. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such licence was given."

The Section deals with estoppel against a tenant/licensee. The lease/licence may be from the real owner. But, at other times, it may also be one granted by a person not having title. But once a person derives his right to possession from either of these persons, he is estopped from denying the right of the grantor to grant the lease or licence. It is obvious that this estoppel must operate during the period of the lease/licence. But the Section says that the prohibition against denial of title is to operate 'during the continuance of the tenancy'.

This qualification is not there in the second part of the Section which deals with a licence. It also states that the tenant cannot deny the title which the grantor had "at the beginning of the tenancy" or 'at the time licence was given'. Another question is as to whether the estoppel will apply to a person to whom the tenant attorns, because he recognizes the original landlord as his landlord.

So far as limiting the estoppel 'during the continuance of the tenancy; does is mean that once a notice of termination is given under Section 106 of the Transfer of Property Act, the tenant is free to dispute the landlord's title?

The position in law is that estoppel continues (Md Mujibur v. Shk Issb: AIR 1928 Cal 546; Bilas v. Desraj: AIR 1915 PC 96. The 69th Report refers to judgments of the other High Courts also. Therefore, after the words 'during the continuance of the tenancy', the words 'or at any time after termination of the tenancy' must be added.

The words 'at the beginning of the tenancy' are of course understandable. If the landlord dies and is succeeded by his heirs, even then, the tenant cannot dispute the title of the predecessor landlord to whom the said heirs have succeeded.

But the above words have resulted in some conflicting decisions as to whether the estoppel applies to a person who is already in possession, though not as a tenant, but who later executes a lease deed. (See discussion on the conflicting judgments in Sarkar (15th Ed., 1999, pp 1927 to 1931)). We do not see any good reason as to why a person in prior possession without authority to be in possession, should be allowed to go back to that anterior stage if he had later on accepted a person as his landlord.

Of course, if a tenant has a case that the lease was vitiated by undue influence, fraud or coercion or mistake, the ban under this Section, it is well settled, does not apply. But barring such cases, there is no reason why the estoppel should not apply to a person already in possession.

If a person becomes a tenant of A first and later enters into a tenancy agreement with B, even so.- the estoppel applies against both A and B, whether A or B was the owner or even if A or B were not the real owners. Having obtained possession from A under the first lease, he cannot be allowed to get out of the estoppel by executing a tenancy agreement with B. If A files a suit, the tenant is estopped from disputing A's title and cannot say that it was B who put him later in possession.

We agree with above recommendation with slight modification that the words "or the person claiming through such tenant" should also be added after the proposed words "if the tenant".

The other aspect refers to the cases of 'attornment'. This aspect has been dealt with elaborately in the 69th Report (paras 58.20 to 58.29). After attornment, a 'new tenancy' is created in the technical sense. But, notwithstanding some conflict of decisions to which the Report refers, it was felt that, because the person to whom the original tenant surrendered has, by virtue of the attornment, recognized the original landlord, the estoppel must apply, unless he pleads, fraud, undue influence or coercion or mistake. The 69th report recommended insertion of new sub-Section (2) for dealing with the issue of attornment.

We are not dealing with cases arising under Rent Acts where the tenant in possession becomes a statutory tenant. Some State statutes which provide for eviction upon denial of title, do permit a denial of title provided it is bonafide. It is not necessary to deal with those cases.

We, therefore, broadly accept the recommendation in para 58.31B by the 69th Report. Now Section 116 as recommended in the 69th Report requires that the existing provisions of Section 116 should be redesignated as subSection (1) with the addition of the words "or any time thereafter if the tenant continues in possession after termination of the tenancy".

We therefore recommend that Section 116 should be substituted as follows:-

"116. Estoppel of tenant and of licensee of person in possession.- (1). No tenant of immoveable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, if the tenant or the person claiming through such tenant, continuous in possession after termination of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such property; and no person who came upon any immoveable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

(2) Where a tenant in possession of immoveable property is attorned to another, the tenant or any person claiming through him shall not, during the continuance of the tenancy, or at any time thereafter if the tenant or the person claiming through him continues in possession after termination of the tenancy, be permitted to deny that the person to whom the tenant was attorned had, on the date of the attornment, title to such immoveable property; but nothing in this sub-Section shall preclude the tenant or the person claiming through him from producing evidence to the effect that the attornment was made under mistake or was procured by fraud."