Report No. 69
58.20. Reverting to the section in our Act, we should note that there is some obscurity as to the effect of an attornment-that is to say, how far attornment creates an estoppel, and in what manner. The view has been take1 that though attornment creates an estoppel, it does so by virtue of an uncodified rule not falling within section 116. It has also been stated that attornment may create an estoppel under section 116, but only if the attornment has the effect of creating a new tenancy. It is also commonly understood that even if an attornment creates an estoppel either under the section or otherwise, it is possible for the tenant to show that the attornment was made under mistake or by fraud.2
1. See infra.
2. See the Bombay case, infra.
In order to appreciate the position in this regard, it may be useful to examine the nature and origin of attornment. In England, attornment originated in the feudal times, and seems to have been a concomitant of the doctrine that the tenant owed loyalty only to his landlord (until attomment). Though attornment, or the consent of the tenant to hold under the transferee, was still required upto the 16th century, the Old Nature Brevium [temp. Edward III, ed. Pynson (n.d.) fo. xlix; ed. Tottell (1584), ff. 168-70 contains two forms of writ (Quid Juris Clamat, and Per Que Servitia1 which can be traced back to Bracton's own day, to compel the tenant not being a tenant in tail [Bowles case, (1615) 11 Co Rep 80a] to attorn or be attorned1.
Meanwhile, the passing of the Statute of Uses had dealt a further blow at the theory of feudal allegiance; for it was soon afterwards held [Heyward's case, (1595) 2 Co Rep 35a] that a conveyance which operated by virtue of the statute passed the reversion without attornment of the tenant2. Finally, in 1705, a statute (4 & 5 Anne, c. 16, section 9) abolished the necessity for attornment in all "grants and conveyances" of reversions. It would seem that at the present day, attornment is not, in law, necessary to continue the relationship of landlord and tenant on a transfer of the reversion.
1. Adapted from Jenks Digest of English Civil Law, (1947), Vol. 2, p. 633.
2. Jenks Digest of English Civil Law, (1947), Vol. 2, p. 633.
58.22. A tenant is, however, protected if he pays rent to the former reversioner without notice of the transfer of the reversion.1 To that extent, attornment is desirable. Any act which recognises the position of the new reversioner will be sufficient as an attornment2 in this context.
1. Section 151(2), Law of Property Act, 1925.
2. Gladman v. Plumer, (1845) 15 LJQB 79.
58.23. Position as to estoppel.-
This statement of the present position made above with reference to England would, in substance, be true of India1-although, of course, we have no history of feudalism. As to the effect of attomment as estoppel, in Krishna Prasad's case,2 the Privy Council (Sir George Rankin) observed: "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. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation.
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;3 and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and completeness with the case covered by the section.
The section postulates that there is a tenancy still continuing,4 that it had its beginning at a given date from a "given landlord." It provides that neither a tenant nor anyone claiming through tenant shall be heard to deny that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise-which is the case before the Board on this appeal-the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title.
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 reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
1. See Pulin v. Misshla, AIR 1957 Cal 627 and section 109 of T.P. Act.
2. Krishna Prasad v. B.C. Concern, AIR 1937 PC 251 (255).
3. Emphasis added.
4. Emphasis supplied.
58.24. Attornment-Bombay and Calcutta cases.-
In the above observations of Sir George Rankin section 116 was treated as not covering attomment. In a Bombay case,1 the application of section 116 to attomment was confined to cases where there is a new tenancy, and it was observed that when, through ignorance or fraud, the tenants had made an attornment to a particular person, they were not altogether estopped from showing that the person to whom the attornment had been made had no title at the date of the attornment. This decision follows an earlier Calcutta case,2-though it may be pointed out that the observations in the Calcutta case were obtier.
1. Nadjarian v. E.F. Trust, Bombay, AIR 1945 Born 299 (399, 400) (Chagla, J.).
2. Changlu v. Taheru Deb, AIR 1926 Cal 720.
58.25. Estoppel when created.-
While we appreciate that section 116 is narrowly worded, the effect of attornment requires consideration. It seems to us that if attornment does create an estoppel, that is not because a new tenancy in the technical sense is created. The creation of a (new) tenancy would require compliance with the formalities prescribed by the Transfer of Property Act, 1882, or other legislation relevant to the case. In our view, estoppel is created by attornment because attornment amounts to a recognition of the new status-the derivative title of the landlord to whom the tenant is attorned.
58.26. By virtue of the recognition of the new landlord and by reason of the fact that having so recognised the new landlord, the tenant continues in possession or otherwise derives a benefit which would not have come to him but for the acknowledgment, the tenant is estopped from challenging the derivative title of the new landlord.
58.27. Doubt as to scope of section 116 in relation to attornment.-
As regards the question whether the situation falls within or outside section 116, a doubt may be legitimately entertained, the discussion in the Privy Council case being obiter and inconclusive. But if there is a doubt, we think it should be removed by suitable amendment. The doubt arises because of the words "beginning of the tenancy" in section 116.1 Do they mean the tenancy with the particular person, or do they mean tenancy in the abstract?
1. See the underlined words in the Privy Council case, supra.
58.28. Whatever be the true construction, we are of the view .that after attornment, the relationship between the tenant and the landlord should not, so far as estoppel is concerned, be left to be governed by an uncodified rule. The rule applicable should find a place in the statute. The content of the rule could, in certain respects, differ from the rule governing the relationship of the original landlord and the original tenant. But the rule, whatever be its content, should find a place in the Act. The situation is a frequently occurring one, and it is desirable that the section should specifically deal with it. The present position is not satisfactory.
58.29. Cause of present confusion examined.-
It would appear that a part of the obscurity is due to the fact that this subject of great practical importance has been totally left out of section 116-most probably because the attention of the draftsman was not drawn to it. It can hardly be denied that the principle, in its broad content, should not, after attornment, be different from that before attornment. No doubt, alleged derivative title can be challenged1 by the tenant. But once there is attornment this cannot be permitted in the absence of mistake or fraud. Attornment has, as its very object, the recognition of the derivative title. Apart from any question of fraud or mistake, it is difficult to understand how a tenant can question the title of the assignee of the landlord after attornment. We are of this view that the position should be set out clearly in the section. We recommend a suitable amendment of the section for the purpose.
1. Prakash Kaur v. Gian Chand, AIR 1940 Lah 341.
VIII. Continuance of Tenancy
58.30. We have already mentioned1 that the section, as it stands at present, is confined to the period of "continuance of the tenancy". Taken literally, this requirement would mean that if the tenancy is terminated by, say, a notice to quit, and the tenant continues in possession, there is no estoppel. This, however, is not the common understanding of the section. In fact, such a construction would lead to anomalies, where a recalcitrant tenant continues in possession after termination. It is hardly fair that he should be allowed to dispute the title of the landlord and that too as a result of his own default. Fortunately, this is not the usual construction. According to the commonly accepted view, even if the tenancy terminates (e.g., by a proper notice to quit or by forfeiture), the estoppel continues to operate2-3 under the section. This is well established4 by a series of decisions.
(b) Krishna Prasad v. Adyanath, AIR 1944 Pat 77 (83, 84), (Discusses effect of attornment on original landlord also);
(c) Charubala v. Comes, AIR 1934 Cal 499;
(d) Hirabai v. Jiwanlal, AIR 1955 Nag 234 (236), paras. 10, 11 (review cases);
(e) Bhaiganti Bawa v. Himmat, AIR 1917 Cal 498 (see Ashutosh Mookerji, J.'s indgment).
1. See discussion as to limitations of the section, supra.
2. Md. Mujzbar v. Shq. lssb, 32 CWN 867: AIR 1928 Cal 546.
3. Bilas v. Besraj, (1915) 42 I 202: 19 CWN 1207: ILR 37 All 557: AIR 115 PC 96.
4. (a) Makhan v. Baisakhi, AIR 1919 Lah 334;
58.31. Change needed.-
It appears to us that the language of the section requires a slight amplification in this regard, in order that it may reflect the judicial construction. Of course, the above discussion is not concerned with the acquisition as a result of adverse possession by a tenant remaining in possession after termination of the tenancy. That is a separate topic. If the tenant disputes the title of the landlord as of a date later than the period of tenancy, the section is not relevant.
58.31A. Statutory tenancy.-
In many cities, by virtue of the legislation relating to control of rent and eviction, a tenant whose contractual tenancy has been terminated nevertheless continues in possession as a 'statutory tenant'. Such a person would also presumably be governed by section 116.
58.31B. In the light of the above discussion, we recommend two amendments in section 116. In the first place, after the words "during the continuance of the tenancy", the words "or at any time thereafter if the tenant continues in possession after termination of the tenancy" should be inserted. Secondly, we recommend the insertion of a new sub-section in section 116, as follows:-
"(2) Where a tenant in possession of immovable property is attorned to another, the tenant or any other person claiming through him shall not, during the continuance of the tenancy, or at any time thereafter if the 'tenant 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 immovable property; but nothing in this sub-section shall preclude the tenant from producing evidence to the effect that the attornment was made under mistake or was procured by fraud."