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Shridhar Balkrishna Vaidya Vs. Babaji Mula Agarya - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 706 of 1913
Judge
Reported inAIR1914Bom248; (1914)16BOMLR586
AppellantShridhar Balkrishna Vaidya
RespondentBabaji Mula Agarya
Excerpt:
.....for consideration-resignation amounts to transfer-transfer not valid unless assented to by all khots- lease synchronous with such resignation-tenants can show defect in the khot's title in a suit on the lease-estoppel-act of legislature.;the defendant an occupancy tenant of khoti lands, resigned on the 29th april 1905, his occupancy rights in the lands for consideration to the plaintiff, who was one of the khots. on the same day and as part of the same transaction, the defendant attorned to the plaintiff by executing a lease of the lands for a term of five years. after the expiry of the term the plaintiff sued the defendant to recover possession of the lands and rent for three years preceding the suit. the defendant contested the validity of his resignation and claimed the lands as..........complied with. the essential condition which we have to consider is whether the consent of the khot was obtained, for it is not alleged that this transfer could be validated on the ground of any custom proved, authorizing a tenant so to alienate his occupancy rights without the consent of the khot. it is not seriously contended that the consent of the khot within the full meaning of that term has been obtained. one khot, the man in whose favour the void resignation was made, has of course consented. it is admitted that there are other khots whose consent would also be necessary, and it is not suggested that that consent has been obtained. in these circumstances there could be no transfer under section 9. that section expressly makes occupancy rights of this kind non-transferable.....
Judgment:

Beaman, J.

1. In this suit the defendant purported to resign his occupancy rights in a Khotki to the plaintiff, who was one of the Khots in the year 1905. Synchronously with this resignation a lease for a term of five years was executed, and the defendant attorned to the plaintiff in respect of these Lands. it is found as a fact that the proposed resignation was accompanied by consideration. After the expiration of the term the plaintiff has sued the defendant upon the lease, and the question of greatest difficulty which has arisen in the appeal is, whether the defendant is entitled to impugn the plaintiff's title ?

2. We pass over the nice point whether the estoppel mentioned in Section 116 of the Evidence Act survives the term upon which the lands may have been demised. This difficulty would arise upon a construction of the words ' during the continuance of the tenancy.' We think it unnecessary to give any decision upon that point, because we entertain no doubt but that the defendant is not estopped from challenging the legality of the plaintiff's title. There is no estoppel against an Act of Parliament or in this country against an Act of Legislature. It is to be remembered that the transfer or resignation and the lease were made at the same time and formed parts of what is virtually one transaction. If the transfer is found to be tainted with any illegality as being in contravention of any provision of the Statute-law the letting must go with it. We entertain no doubts in the state of the authorities but that this alleged resignation must be now regarded as a transfer. That has already been decided in more than one case in this Court, and must be regarded as settled law. Then, if a transfer, it could only be legal under Section 9 of the Khoti Act, provided that the conditions set forth in that section have been complied with. The essential condition which we have to consider is whether the consent of the Khot was obtained, for it is not alleged that this transfer could be validated on the ground of any custom proved, authorizing a tenant so to alienate his occupancy rights without the consent of the Khot. It is not seriously contended that the consent of the Khot within the full meaning of that term has been obtained. One Khot, the man in whose favour the void resignation was made, has of course consented. It is admitted that there are other Khots whose consent would also be necessary, and it is not suggested that that consent has been obtained. In these circumstances there could be no transfer under Section 9. That section expressly makes occupancy rights of this kind non-transferable unless the conditions stated in the section have been complied with; nor, as we said, in the state of authorities could it be regarded as a resignation under Section 10 since it was accompanied by consideration. Therefore the foundation of the plaintiff's title in 1905 is shown to have been illegal. It was moreover a contract between the plaintiff and the defendant here, so that both parties may be said to have been in pari delicti, and the plaintiff is not entitled to estop the defendant from showing the illegality of the title so founded. We must, therefore, confirm the decree of the Court below and dismiss this appeal with all costs upon the appellant.


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