1. I regret to say that in this case my brother Oldfield and I are unable to agree upon the questions of law involved. The zamindars contend that the sale-deed of the 5th July 1879 was void ab initio, and that in consequence of its being void the present defendants possess no rights as occupancy-tenants. The prayer in the plaint is for possession of the land in dispute, and for the ejectment there from of the defendants as trespassers. The main question in the case is that raised by the second plea in appeal: 'As the plaintiffs were consenting parties to the sale, and realized rent from the appellants, they cannot now sue to set aside the sale.'
2. In dealing with this question, we must first read the second paragraph of Section 9 of the Rent Act (XVIII of 1873), the effect of which was considered by a Divisional Bench of this Court in Umrao Began v. The Land Mortgage Bank of India I.L.R. 1 All. 547 and again by a Full Bench in the same case I.L.R. 2 All. 451 but the question did not arise in that case in precisely the same shape as now. The ruling of the Court was, that Section 9 did not prevent a landholder from causing the sale in execution of his own decree of the occupancy-right of his own judgment-debtor in land belonging to himself. The judgment did not relate to a private transfer, but to the question whether or not the zamindar could sell the property through the Court. SPANKIE, J., was of opinion that, even in the execution of a decree, the zamindar's consent could not make valid a transfer prohibited by Section 9. He held--and I agree with him--that no order of the Court could make valid a transaction which the parties themselves could not privately effect; for what can be sold in execution of a decree is only the rights and interests of the judgment-debtor. That case, however, is distinguishable from the present, and although the judgment may contain dicta which seem to apply here, nothing in it is binding on us which was not essential to the point actually determined. There is here no question as to the execution of a decree, but only as to the validity of a private transfer. The question is, whether or not the sale-deed of the 5th July 1879, is contrary to law, and therefore void. I may here refer to Section 2 of the Contract Act, and in particular to Clause (g) of that section: 'An agreement not enforceable by law is said to be void,' and Clause (h)--'An agreement enforceable by law is a contract.' 'Contract,' therefore, means a valid agreement enforceable by law. Clause (d) of the same section defines 'consideration,' and Section 23 specifies what considerations are lawful and what are not: 'The consideration or object of an agreement is lawful unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.' Lastly, Section 24 provides that 'if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object is unlawful, the agreement is void.'
3. Now, the sale-deed of the 5th July 1879, was undoubtedly a contract entered into at a time when Act XVIII of 1873 was in force. There can be no doubt that its object was such as to bring it within the terms of Section 23 of the Contract Act, which makes the consideration of an agreement unlawful when it is of such a nature that, if permitted, it would defeat the provisions of he law. In the Full Bench case of Gopal Pandey v. Parsotam Das I.L.R. 5 All. 121 I explained my own conception of the rights of an occupancy-tenant in these Provinces, and I expressed the opinion that this prohibition of transfer contained in Section 9 of the Rent Act was designed by the Legislature to prevent the rights of agriculturists from being shifted, and was intended for the benefit, not only of the zamindars, but also of the tenants referred to in the section. If this sale-deed is held to be valid, then the transfer will take place, and will enable the defendants to claim all the rights which the occupancy-tenants possessed.
4. The second point before us relates to estoppel. It is said that whatever, may be the object of the contract contained in the deed, and however illegal it may be, the zamindars consented to it, and cannot now maintain that it is void. The fundamental principle of estoppel is given effect to by Section 115 of the Evidence Act in the following terms: 'When one person has, by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true, and to act upon such a belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.' This implies that no declaration, act, or omission will amount to an estoppel unless it has caused the person whom it concerns to alter his position; and to do this he must both believe in the facts stated or suggested by it, and must act upon such belief. The altering of his position by the person pleading estoppel is an essential part of the rule. In this case at most it can be said that the zamindars were consenting parties to the execution of the sale-deed. But how was the vendee misled by this? He cannot plead ignorance that the deed was unlawful and void, because ignorance of law cannot be accepted as a plea in any case. But it is said that the plaintiff is estopped because he agreed to take no action. Here also I think it has not been shown that the vendee acted upon such an agreement so as to alter his position with reference to the land. Payment of rent may of course be evidence of tenancy, and tenancy once established would estop the tenant from disputing the landlord's title. The rule is codified in Section 116 of the Evidenoe Act; but I am unaware of any rule of law by which the landlord, under the circumstances of this case, would be estopped by reason of having received rent from saying that the tenant has derived his title under a conveyance opposed to the express of the law. What then should be our decree in this case? The first Court dismissed the claim, the Lower Appellate Court has decreed it in toto. My judgment, however, is only in part in the plaintiffs' favour, namely, that they are competent to maintain that the sale-deed is void and gives no occupancy-rights to the vendee. But the finding of the Lower Appellate Court upon the second issue is, that the plaintiff accepted the defendants as tenants, and took rent from them. Now, the taking of rent under such circumstances constitutes a tenancy under the Bent Law, and therefore the plaintiff is wrong in saying that the defendants are trespassers; and hence the question as to ejectment does not fall within the jurisdiction of the Civil Court. My own conclusion is, therefore, that the decree of the Lower Appellate Court should be upheld so far as it declares the sale-deed to be void, and that the suit should be dismissed so far as the claim for ejectment is concerned, leaving the plaintiff to his proper remedy in the Revenue Court.
5. I would accept the findings of the Judge to the effect that the plaintiffs consented to the sale in favour of the appellants, and received arrears of rent due on the holding by the vendors from them, and recognized them as tenants.
6. The sale was made at the time Act XVIII of 1873 was in force, and sales of rights of occupancy were not void under Section 9 when made with the consent of the landlord. This principle was affirmed by the Full Bench of this Court in the case of Umrao Begam v. The Land Mortgage Bank of India I.L.R. 1 All. 547 and the sale the plaintiffs have consented to will be valid, but under any circumstances they are estopped by their conduct from bringing this suit to set aside the sale.
7. I would reverse the decree of the Lower Appellate Court, and restore that of the first Court dismissing the suit with all costs.