1. The plaintiff in this case sued to recover rent of Rs. 182-4-0 on an oral agreement by which the defendants attorned to the plaintiff. The Kabulayats passed by the defendants, Exhibits 16 and 17, are proved by the evidence of the plaintiff and the previous oral tenancy was also proved. The learned Subordinate Judge held that the defendants were estopped from disputing the plaintiff's initial right to let out the land during the continuance of the tenancy as the defendants admittedly came on the land through their deceased father.
2. The first point taken in this application is that the learned Subordinate Judge had no jurisdiction to entertain the suit as the Notification in the Bombay Government Gazette for 1911, Part, page 1694, did not give power to the Subordinate Judge by name to entertain suits for recovery of rent, under Clause (8) of the second schedule of the Provincial Small Cause Courts Act. In Akshay Kumar Shaha v. Hira Ram Dosad I.L.R. (1908) Cal. 677, it was held that reading Clause (1) of Section 15 of the Provincial Small Cause Courts Act with Clause (8) of the second schedule of the Act, the expression 'the Judge of the Court of Small Causes' in Clause (8) of the second schedule must be taken to apply either to a Court of Small Causes constituted under the Act or to a Court invested with the jurisdiction of a Court of Small Causes, and the 'Judge' in Clause (8) means a Court invested with the jurisdiction of a Court of Small Causes. It is not necessary to invest the powers' by reference to the name of the particular Judge. We think, therefore, that the notification is not ultra vires, and the Subordinate Judge had jurisdiction to decide the case.
3. The next point taken on behalf of the applicants is that the lower Court erred in holding that the defendants were estopped under Section 116 of the Indian Evidence Act from disputing the plaintiff's right to let out the land and reliance is placed on the decision of the Full Bench of the Madras High Court in Venkata chetty v. Aiyanna Gowndan I.L.R.(1916) Mad. 561, f.b. and the decision of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh I.L.R. (1915) All 557 Bom. L.R. 1006, p.c. It was held by their Lordships of the Privy Council that (p. 587)-
Section 116 of the Indian Evidence Act is perfectly clear on the point, and rest on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as ho has not openly restored possession by surrender to his landlord.
4. But where the tenant is let into possession by the landlord the estoppel clearly arises on the principle that a person cannot both approbate and reprobate, but it does not necessarily follow that if the tenant is not let into possession by the landlord he is not equally estopped. According to the ruling of the majority of the Judges in the Full Bench case in Venkata Chetty v. Aiyanna Goundan, a tenant who has executed a lease but has not been let into possession by the lessor is estopped from denying his lessor's title in the absence of proof that he executed the lease in ignorance of the defect in his lessor's title or that his execution of the lease was procured by fraud, misrepresentation or coercion. The decision of the Madras High Court is consistent with the view taken by this Court in Vasudev Duji v. Babaji Ranu (1871) 8 B.H.C. 174 and Trimbak Ramchandra v. Shekh Gulain Zilani I.L.R. (1909) Bom. 329: 12 Bom. L.R. 208. In certain conceivable cases it may be possible for the tenant to show that there was no relationship of' landlord and tenant established, and that the contract between the parties was void or voidable on the ground that the contract was entered into or procured by fraud, misrepresentation and coercion or by mistake. But this preliminary issue will have to be decided before the question of estoppel arises for consideration. If once the re-lation of landlord and tenant is established between the parties, according to the view in TrimbtJc Ramchandra v. SheJeh Gulam Zilani the tenant would be estopped from disputing the landlord's title. There are no words in Section 116 of the Indian Evidence Act to show that the tenant must be put into possession by the landlord in order to estop the, tenant from disputing the landlords title. The words 'at the beginning of the tenancy' have been construed in some cases to mean the time when the tenant was first let into possession. That view ia not accepted by the majority of the Judges of the Full Bench in Venkata Ghetty v. Aiyanna Goundan and is not quite consistent with the view taken by this Court in Vasudev Daji v. Babaji liann and Trimbak llamehandra v. Shehh Gulam Zilami. It may be that in some cases the tenant may be in possession before the new tenancy begins and he may attorn to another landlord by eseeuting a lease which constitutes a new tenancy. The question, therefore, to be decided in each case under Section 116 would be whether a new tenancy had arisen and not whether the tenant had been let into possession by the landlord. In support of the contention that there was no relation of landlord and tenant between the parties the tenant may assert that the contract of tenancy is void or voidable on account of misrepresentation or fraud.
5. In the written statement in this case the defendants did not allege that there was any misrepresentation, fraud or coercion at the time when the contract of tenancy was entered into. His allegation amounts to this, that, after the relation of landlord and tenant was created, subsequent events have happened by which he ceased to be liable to pay rent and would no longer be bound by the agreement which he entered into with the present plaintiff'. We think, therefore, that there is no sufficient basis in the allegations made on behalf of the defendants in this case in the written statement to justify an inquiry into the question as to whether the agreement of tenancy was procured by fraud, misrepresentation or coercion. The defendants are in possession of the land and they are bound to pay the rent to the person entitled to receive the rent. If his case is that the plaintiff is not entitled to receive the rent, but that some person other than the plaintiff is entitled to receive it, be might be protected by Section 50 of the Transfer of Property Act if he paid rent to the plaintiff. If, on the other hand, he contends that the land does not belong to the present plaintiff but that the title rests in him, it is open to him to surrender the lease and to establish his title in a different suit.
6. There is, however, one slight mistake in the decree which is drawn up by the lower Court. It is not in accordance with the judgment. The decree ought to have been that the amount of the rent should be recovered from the estate of the deceased father of the present defendants and not from the defendants personally. To that extent the decree as drawn up will be varied. Subject to this verbal alteration in the decree, we confirm the decision of the lower Court. The rule must be discharged with costs.
7. I agree and have nothing to add.