1. The appellants are the present representatives of a family, the Pattars, which has for a long period been in occupation of certain lands at Kurankop in the Dharwar district under a permanent tenancy. Some of these lands belong to the respondent Konher Annarao Deshpande as representative of the Deshpande family. The rest are devasthan lands held by the Deshpandes under a permanent tenancy and sub-let by them to the Pattars. As long ago as 1865 there was litigation between the predecessors of the parties in which it was settled by a compromise decree that the lands should be allowed to continue permanently in the occupation of the Pattars on payment of the assessment as fixed by Government from time to time. In 1923 the respondent brought two suits against Ishvarappa, the father of appellant Rachotappa, and Rachotappa himself, claiming to evict them as being merely annual tenants. In one suit, No. 58 of 1923, which related to those lands covered by the 1865 decree which belonged to the Deshpandes, the defendants Ishvarappa and Rachotappa pleaded and proved their permanent tenancy, and the suit was dismissed on December 12, 1923. On February 27, 1924, Ishvarappa made an application to the Mamlatdar to have his name entered in the record of rights as owner of the lands which had been the subject-matter of that suit. The application, exhibit 36, was in these terms :
The Khata of survey Nos. 30, 31 and 33 of Kurankop stands in the name of Konherrao Annarao Deshpande. But he is not the owner thereof, I am not the permanent tenant-He is now and then harassing me by suits taking advantage of the entry in the records. The Khata should be entered in my name instead of in the name of Konherrao. Notice has been given to him of this.
2. The order below the application issued to the village officers of Kurankop was:
We cannot interfere in a matter of this civil nature. If he has a decree of the Civil Court he may take possession accordingly. Applicant may be informed of this and this may be filed as disposed of.
3. In the other suit No. 106 of 1923, which related to the devasthan lands, the defendants denied both that Konherrao was a permanent tenant of the lands and that they were tenants under him and they set up title in themselves by adverse possession. That was on August 9, 1923. On March 11, 1924, the respondent withdrew the suit. In December, 1925, he brought the two suits, which have given rise to these Letters Patent appeals, to recover possession of the lands on the ground that the tenancy had been forfeited by the disclaimer of title, in one case in the application to the Mamlatdar already referred to, and in the other in the pleadings in the former suit. Ishvarappa who was made the sole defendant,-he was the only tenant shown in the revenue records, being the head of the family- died pending the hearing and his son, appellant No. 1, and nephew, appellant No. 2, were brought on record as his heirs. The trial Court allowed the claim in each case, and the decrees have been confirmed in first and second appeals. These are Letters Patent appeals from the judgment of Mr. Justice Baker. Letters Patent appeal No. 12 relates to the devasthan lands, and Letters Patent appeal No. 13 to the other lands.
4. Three points have been argued by the learned advocate for the appellants : (1) that the disclaimer of title was not such as to work a forfeiture ; (2) that the appellants are not affected thereby; (3) that, even if there has been a forfeiture, the Court can and should relieve against it.
5. The appeals involve important and difficult questions of law for the solution of which the Transfer of Property Act affords no direct assistance, since we are concerned with agricultural leases to which the provisions of the Act do not apply. However, the Act largely reproduces the English law, and it has been held in the cases to which Mr. Justice Baker has referred, that the principles of English law as to forfeiture apply both to tenancies created before the Act came into force and to those excepted from its operation. The definition of 'disclaimer' in Section 111(g) of the Act-renunciation by the lessee of his character as such by setting up a title in a third person or by claiming title in himself-is taken from an English case, the judgment of Tindal C. J. in Doe dem. Williams and Jeffery v. Cooper (1840) 1 Man. & G. 135. The cases cited by Baker J. further show that the repudiation of the landlord's title must be clear and unequivocal and made to the knowledge of the landlord. So far there is no room for dispute.
6. The first question for consideration, therefore, is, whether the disclaimers on which the respondent relies fulfil these elementary requirements. So far as Ishvarappa's application (exhibit 36) is concerned, I think there is no difficulty. Mr. Murdeshwar for the appellants did indeed suggest that, as the Pattars are permanent tenants who pay no rent to the landlord, merely assessment and local fund to Government, they may be regarded as owners for all practical purposes, and that the application to the Mamlatdar may have been made merely with the object of putting an end to harassing litigation without any intention of repudiating the landlord's nominal title. In that connection reference may be made to Amarsangji v. Ranchhod (1924) 27 Bom. L.R. 267. There might have been some force in this argument if the entries in the record of rights had not already made it clear that the Pattars are permanent tenants liable to pay the Government assessment only, but the entries do state that perfectly clearly, and Ishvarappa's application can only mean that he claimed to be full owner and wished to be entered as such. Since it is settled law that under certain circumstances even a permanent tenancy can be forfeited, it would be useless to pretend that the difference between permanent tenant and owner is merely nominal, even though, as appears to be the case here, the tenant pays no rent to the landlord but only the Government assessment. As pointed out in Kally Dass Ahiri v. Monmohini Dassee I.L.R. (1897) Cal. 440 :
Before the lease the owner had the right to enjoy the possession of the land and by the lease he excludes himself during its currency from that right, but the determination of the lease is a removal of that barrier, and there is nothing to prevent the enjoyment from which he had been excluded by the lease.
7. The nature of this particular tenancy may be material for the purpose of determining whether the disclaimer works a forfeiture or whether the forfeiture should be relieved against, but that there has in fact been a disclaimer cannot, I think, be gainsaid.
8. In the case of the devasthan lands, Mr. Murdeshwar's suggestion is that the denial of respondent's title was due to a misunderstanding. He says the Pattars were misled by the fact that the record of rights mentions, not respondent Konherrao Annarao, but Ramrao Venkatrao, another member of the Deshpande family, as the wahivatdar of the devasthan and holder of the lands, and also by the fact that the present numbers of the lands do not tally with those in the decree of 1865. There is not much in the latter point. Ishvarappa was aware of the decree. He referred to it in his written statement in the suit relating to the other lands, and in the case of those lands also the numbers were not the same. But the position with regard to the devasthan lands was rather peculiar. The Deshpandes were not the owners but themselves only permanent tenants, and by virtue of some arrangement, as to the origin of which there is no evidence but which is recorded in the record of rights, the Pattars perform the worship of the deity (apparently in lieu of the assessment, which the decree of 1865 made them liable to pay) and pay only local fund to Government. It does not appear that the decree was produced or referred to in suit No. 106 of 1923, and it certainly seems significant that on the very day, November 16, 1926, when respondent in the subsequent suit relating to the devasthan lands produced an extract from the Survey Records, exhibit 24, showing the corresponding numbers and making it clear that the numbers mentioned in the decree included the numbers of the devasthan lands, the appellants put in an application, exhibit 22, giving up their contentions about adverse possession and limitation and admitting that they held the lands as permanent tenants of the Deshpandes. It is possible of course that this was merely due to the advice of their pleaders, but it may not have been so. The possibility of a genuine misunderstanding can hardly be ruled out. It is difficult to see why the Pattars should admit the tenancy in one case and deny it in the other, if they realised that the decree of 1865 applied equally to both sets of lands.
9. One of the main arguments put forward on behalf of the appellants is that Ishvarappa's application to the revenue authorities would not under English law be regarded as working a forfeiture in the circumstances of this case, and cannot do so, therefore, in this country. The argument is founded mainly on the judgment of the Privy Council in Maharaja of Jeypore v. Rukmini Pattamahdevi where their Lordships had to consider the effect of an alleged disclaimer of title contained in a letter written by a tenant to his landlord in a case not governed by the provisions of the Transfer of Property Act. Mr. Justice Baker has discussed this case very briefly and distinguishes it on the facts. He says:
The tenant did not deny his landlord's title in toto, but what he claimed was that he was not holding his estate on service tenure and he was only liable to pay Rs. 2,200 as rent instead of Rs. 15,000, and he was not required or liable to attend the Dasara durbar with 500 soldiers as required by the Maharaja, and it was held by the Privy Council that this was not such a denial of his landlord's title as to create a forfeiture. That is a very different matter from the present case. The present denial is of the landlord's title in tot.
But, with deference, I do not think the learned Judge has sufficiently considered what was decided, or the implications of what was decided, in the case. The tenancy was alleged to have been forfeited on two quite distinct grounds, denial of title and refusal of service. We are not concerned with the judgment so far as it deals with the latter point. The question of forfeiture by denial of the landlord's title is discussed by Lord Phillimore at pp. 598 to 600. He points out that the rules of English law as to forfeiture of tenancy have been held to be consonant with the principles of justice, equity and good conscience and to be applicable to India, and he states the rule of English law to be 'that a tenant will forfeit his holding if he denies his landlord's title in clear, unmistakable terms, whether by matter of record, or by certain matters in pats. 'He goes on to say that their Lordships did not think it necessary to decide in that case whether there had been a clear and unmistakable denial, because there was neither any denial by matter of record before the suit nor by matter in pais. The effect of the observations at p. 599 appears to be that the English law as to forfeiture by matter in pas does not apply in India at all. Lord Phillimore further points out that some confusion has arisen I from a misunderstanding of the reason why a tenant from year to year may, when he has denied his landlord's title, be ejected without notice. It is not, he says, because the denial or disclaimer works a forfeiture, and he cites Platt on Leases, Vol. II, Part VII, Section 2, p. 496 :
The holding being from year to year, subject to the mutual will of landlord and tenant to determine it on giving the usual six months' notice;...evidence of a disclaimer. is evidence of his election to put an end to the tenancy, and supersedes the necessity for such notice;... Hence, verbal or written denials of a tenancy have rendered a notice to quit unnecessary; but it does not appear that they have effected a forfeiture of the term.
So that two propositions appear to follow from the judgment of their Lordships in this case : (1) that there can be no forfeiture by disclaimer in cases not covered by the Transfer of Property Act unless the disclaimer is in matter of record (see in that connection Vidyavardhak Sangh Company v. Ayyappa (1925) I.L.R. 49 Bom. 842 : S.C. 27 Bom. L.R. 1152; (2) that cases dealing with disclaimer in tenancies from year to year cannot be regarded as authorities on the subject of forfeiture. It is at least a remarkable coincidence that practically all the cases on which Mr. Justice Baker has relied for the proposition that Ishvarappa's application to the Mamlatdar was sufficient to work a forfeiture are either cases where the denial of title was in proceedings in a civil Court or cases of tenancies from year to year. The one exception is Padmana-bhaya v. Ranga I.L.R.(1910 Mad. 161 and the denial of title in that case, which was contained in a letter by the tenant to the landlord, would apparently not work a forfeiture on the principles laid down in the Privy Council case.
10. For a convenient statement of the English law on the subject of forfeiture by disclaimer, Lord Phillimore in his judgment referred to Bacon's Abridgment, 'Leases,' T.2. The passage is in Volume IV, p. 219, and is as follows:
Here it is to be observed, that any act of the lessee by which he disaffirms or impugns the title of his lessor, occasions a forfeiture of his lease. For to every lease the law tacitly annexeth a condition, that if the lessee do any thing that may affect the interest of his lessor, the lease shall be void, and the lessor may re-enter. Besides every such act necessarily determines the relations of landlord and tenant; since to claim under another, and at the same time to controvert his title; to affect to hold under a lease, and at the same time to destroy that interest out of which the lease ariseth, would be the most palpable inconsistency.
A lessee may thus incur a forfeiture of his estate by act in pats, or by matter of record. By matter of record-where he sues out a writ, or resorts to a remedy, which claims or supposeth a right to the freehold ; or where in an action by his lessor grounded upon the lease he resists the demand under the grant of a higher interest in the land; or where he acknowledges the fee to be in a stranger: for having thus solemnly protested against the right of his lessor, he is estopped by the record from claiming an interest under him. By act in pats, as where he aliens the estate in fee.
11. Woodfall, Landlord and Tenant, at p. 383, cites this passage word for word, with the comment, as to matter of record, ' but anything of this sort can seldom if ever now happen, real actions having been abolished,' Mr. Murdeshwar also refers to Volume II of Bacon's Abridgment at p. 570, a passage which was cited in the argument in Doe dem. Graves v. Wells (1839) 10 Ad. & El. 427, a leading authority on the English law of forfeiture. There is, in my opinion, great force in the contention that there is something decidedly technical about the English law on this subject and that matter of record means more than a document of a formal or solemn character and will not necessarily include, as Mr. Justice Baker suggests, ' a denial made in a written application to the revenue authorities with the object of setting the law in motion, that is by causing the name of the defendant to be entered in the revenue records instead of the name of the plaintiff.' Mr. Desai evidently saw the force of the argument that the denial to be effective must be in some form of judicial proceeding, for he made a strenuous effort to show that proceedings in connection with the record of rights should be regarded as such. In this I do not think he has succeeded. He refers to Section 196 of the Bombay Land Revenue Code according to which formal or summary inquiries under the Code are deemed to be judicial proceedings under the Indian Penal Code and the officer conducting the inquiry is deemed to be a civil Court. But, according to the judgment of Mr. Justice Shah in Emperor v. Narayan : AIR1914Bom232 , Section 196 does not apply to inquiries under the rules relating to the record of rights. In any case there was here no proceeding nor inquiry. The Mamlatdar said that it was a matter for the civil Courts.
12. It was for the plaintiff to show that under the English law a statement made in an application of this kind should be regarded as working a forfeiture. In my opinion he has not succeeded in doing so.
13. But there are other considerations which appear to me to affect not only Ishvarappa's application to the revenue authorities but also the disclaimer in the written statement in suit No. 106 of 1923, which was undoubtedly matter of record. What is the principle underlying the rule that disclaimer of the landlord's title works a forfeiture of the tenancy? The passages cited from Bacon's Abridgment and from Woodfall suggest that the principle is estoppel. The expressions ' matter of record ' and 'in pais ' themselves savour of estoppel. In Kalli Dass Ahiri v. Mon-mohini Dassee I.L.R.(1897) Cal. 440 the principle was stated to be that a man cannot approbate and reprobate, and that is the principle on which Mr. Justice Baker has relied. But, of course, the rule that a man may not approbate and reprobate does not simply mean that he may not contradict himself. It means that he may not assume a certain position and take the benefits arising therefrom and then set up a contrary position so as to have it both ways. The rule is explained in this sense in Ambu Nair v. Kelu Nair : (1933)35BOMLR807 , where the observations of Mr. Justice Honyman in Smith v. Baker (1873) L.R. 8 C.P. 350 are cited (p. 811):
[ He cannot ] ' at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.
14. Judging from the authorities which have been placed before us, wherever denial of a landlord's title by a tenant has been held effective as a forfeiture, the elements of an estoppel have always been present ( a change of position has been brought about or the bar of res judicata has arisen) or the rule that a man cannot approbate and reprobate applies. When, as in Kalli Dass Ahiri v. Monmohini Dassee, the tenant denies the landlord's title in a suit for rent, the result is that the landlord cannot recover the rent and the tenant escapes liability to pay it. So in the other cases cited in the argument, Mahipat v. Ldkshman I.L.R.(1900) 24 Bom. 426 : s.c. 2 Bom. L.R. 228, Gopal Ram Mohuri v. Dhakeshwar Pershad Narian Singh I.L.R.(1908) Cal. 807, and Padmanabhaya v. Ranga, the tenant obtained some advantage by his disclaimer and the position of the landlord was prejudiced. But, in the present case, it does not appear that there is any estoppel or bar of res judicata, nor is there really any question of the tenant enjoying the advantages of two inconsistent positions. It is here that the peculiar character of this tenancy becomes important. Not only is it a tenancy in perpetuity, a thing unknown to the English law, but it is a tenancy from which the landlord derives no benefit and can derive no benefit as long as it subsists. There is no rent reserved in the ordinary sense. The tenant pays the Government assessment only (in the case of the devasthan lands apparently only the local fund), and, though the compromise decree of 1865 provides that it is to be paid to the landlord, that only meant apparently that it was to be paid to Government through him. In practice it is probably paid direct to the village officers. No claim for arrears of rent or assessment was made in suit No. 58 of 1923, and though arrears of rent were claimed in the other suit, there appears to have been no justification for the claim. We can only go by the decree of 1865 and the entries in the record of rights in the absence of any evidence to contradict them. These are the materials upon which respondent wishes the Court to pronounce that the tenancy is forfeited. Upon this basis when the respondent filed his suits in 1923 against his tenants he was putting forward a completely unsustainable claim. His assertion that they were annual tenants was untrue. It was a permanent tenancy, the terms of which gave him no right to make any claim against the tenants of any kind as long as they paid the assessment, and as far as the record shows there was no question of their having failed to pay the assessment to Government. Therefore, the disclaimer of title has not resulted in any advantage to the tenants to which they were not entitled under their tenancy, nor has it deprived the landlord of any advantage to which he was entitled as owner.
15. In Kemalooti v. Muhamed I.L.R.(1917) Mad. 629 Mr. Justice Napier suggested a different criterion, viz., whether the assertion of the tenant would operate as a starting point for adverse possession against the landlord. But it has been frequently held that a person who has lawfully come into possession of land as tenant cannot by setting up, during the continuance of such relation, any title adverse to that of the landlord, inconsistent with the real legal relation between them, acquire by the operation of the law of limitation title as owner, or any other title inconsistent with that under which he was let into possession: see Seshamma Shettati v. Chickaya Hegade I.L.R.(1902) Mad. and the cases cited there, also Mohammad Mumtaz Ali Khan v. Mohan Singh (1923) L.R. 50 IndAp 202. In the latter case their Lordships of the Privy Council said (p. 208):
The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex hypothesi was unfounded at the date when it was made, can, by the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under-proprietor.
16. On these authorities it appears that neither Ishvarappa's application nor even the written statement in suit No. 106 of 1923 would be sufficient to make the possession of the Pattars adverse to the landlord.
17. On principle, then, I feel considerable difficulty in holding that the English law, which is admittedly the law to be applied so far as it is applicable to India, requires us to hold, as a matter of justice, equity and good conscience, that there has been an effective forfeiture in the circumstances present here. I think there is a good deal to be said for the view that where the Transfer of Property Act does not apply, the disclaimer of the landlord's title, even though clear and unequivocal and even though made in a judicial proceeding, would not operate as a forfeiture of the tenancy, unless it amounts to an estoppel or comes within the mischief of the rule that a man may not approbate and reprobate, or is made in such circumstances that it would render the tenant's possession adverse to the landlord.
18. I am not prepared on the materials placed before us to commit myself to that proposition, nor is it necessary, because, assuming that what I may call a bare disclaimer in matter of record is legally sufficient to work a forfeiture, 1 hold that anyhow the Courts have the power to relieve against it. I will deal with this part of the case next. Only two authorities have been referred to in this connection, viz., Mallappa Venkatesh v. Janardan Govind I.L.R.(1926) Bom. 450 : S.C. 28 Bom. L.R. 527 and Kemalooti v. Muhamed. In the former case, where a tenant had contravened a stipulation in the lease against alienation, it was held that, although the lease contained a proviso for reentry, the Court had equitable power to relieve against the forfeiture. It was argued that the Court had no power to relieve except for non-payment of rent, but Macleod C.J. said (p. 452 ):.Section 111 of the Transfer of Property Act, and the other sections of Chapter V do not by virtue of Section 117 apply to leases for agricultural purposes, and there is no other restriction that I know of against the Court exercising its equitable powers by relieving against forfeiture in a proper case.
19. That, therefore, was not a case of a forfeiture by disclaimer, but the language used by the learned Chief Justice is quite general. In Kemalooti v. Muhamed I.L.R.(1907) Mad. 629Mr. Justice Seshagiri Ayyar expressed the view that the Courts acting upon the principles of the English law would have no power to relieve against forfeiture where there has been a denial of title, unless the tenant proves that the denial was occasioned by the fraud, mistake or accident of the landlord, and that the tenant himself was neither careless nor negligent. He referred to and dissented from the opinion of Mr. Justice Sadasiva Ayyar in an earlier case, Abakka v. Seshamma  M.W.N. 915. That learned Judge had been inclined to the view that all cases of forfeiture can be relieved against in India. Mr. Justice Napier, the other Judge who decided Kemalooti v. Muhamed, has not dealt with that aspect of the case. As I have already pointed out, the possibility of a bona fide mistake cannot be excluded in the case of the devasthan lands, but, apart from that, I am not convinced that the power of the Courts in India to relieve against forfeiture arising by disclaimer on grounds of justice, equity and good conscience must necessarily be limited to the cases mentioned by Mr. Justice Seshagiri Ayyar. It may well be that English Courts of equity never gave relief on any other ground, but I doubt very much whether they ever had to deal with an analogous case. Suppose there was a lease for 999 years under which the tenant's only liability was to pay the land-tax, and he had never failed to discharge this liability, but under stress of an unfounded claim by the landlord to treat him as an annual tenant and evict him as such had denied the landlord's title, can it be said with confidence that an English Court of equity would feel itself compelled to maintain the forfeiture? I am not satisfied that it would, and that being so, I see no reason why the Courts in India should deny themselves the power to relieve in a case of this peculiar character.
20. I do not think that there is any force in appellants contention that Ishvar-appa's disclaimer, if it be effective as a forfeiture, would not be binding upon them. He was the manager of the joint family and, in the absence of anything to suggest the contrary, must be held to have represented the family. The principle laid down in such cases as Guruvayya v. Dattatraya I.L.R.(1903) 28 Bom. 11 : S.C. 5 Bom. L.R. 618 and Lingangowda v. Basangowda (1927) L.R. 54 IndAp 122 : S.C. 29 Bom. L.R. 848 will apply. It is not a case of alienation of joint family property. The cases relied on by Mr. Murdeshwar, Birendra Kishore Manikya v. Bhubaneswari I.L.R.(1912) Cal. 903 and Srimati Farman Bibi v. Sheikh Tasha Haddal Hasain (1908) 12 C.W.N. 587 do not help him, since it does not appear that the point of representation by the manager of a joint family arose at all. Nevertheless, the fact that Ishvarappa is dead and that his heirs, the appellants, do not dispute the title of the respondent is a matter which may be taken into consideration in deciding whether the Court should grant relief.
21. To sum up my conclusions, I find that there has been no forfeiture in the case from which Letters Patent appeal No. 13 arises as there has been no disclaimer by matter of record before the suit. In the other case the permanent tenancy may have been technically forfeited, but the Court has power to grant and should grant relief against it.
22. The appeals must, therefore, be allowed and the suits dismissed. We think, however, that as Ishvarappa's conduct in disclaiming the tenancy was not justified and must be held to have been largely responsible for this litigation, the appellants are not entitled to their costs from the other party even in Letters Patent appeal No. 13. So far as that case is concerned, we order that the parties do pay their own costs throughout. In Letters Patent appeal No. 12, in which the appellants have to seek the indulgence of the Court to relieve against the forfeiture of the tenancy, we direct that the appellants must pay their own costs and the costs of the respondent throughout.