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Krishnan Nair Sreedharan Nair Vs. Oommoommen Abraham - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKerala High Court
Decided On
Case NumberS.A. No. 64 of 1983
Judge
Reported inAIR1984Ker164
ActsTransfer of Property Act - Sections 106 and 110
AppellantKrishnan Nair Sreedharan Nair
RespondentOommoommen Abraham
Appellant Advocate C.P.D. Nayar, Adv.
Respondent Advocate T.L. Viswanatha Iyer and; George C. Varghese, Advs.
DispositionAppeal dismissed
Cases ReferredAmritlal N. Shah v. Alla Annapurnamma
Excerpt:
tenancy - eviction - sections 106 and 110 of transfer of property act - plaintiff instituted suit for eviction and for arrears of rent - contended by defendant that there was no valid notice terminating tenancy as contemplated by section 106 - not open to defendant to raise validity of notice terminating lease - party cannot both approbate and reprobate - not open to tenant to contend that notice evidenced not in accordance with law or is not sufficient to terminate tenancy - appellant cannot approbate and reprobate or play fast and loose or adopt inconsistent positions which is not permissible in law. - - 8. having heard counsel at great length i am satisfied that the contention of sri t. it is a well accepted principle that a party cannot both approbate and reprobate......appeal. the only point argued before me was that ext. p-1 is not a proper notice terminating the tenancy. counsel for the appellant mr. c. p. damodaran nair, argued that in ext. a-1, rent deed, dt. 8-10-1974 the date of commencement of the lease is mentioned, as 'vernacular'. so the tenant can be asked to vacate only on 9-3-1977 and not on 8th as done at present. counsel placed reliance on section 110 of the transfer of property act, and also the decision of the supreme court reported in dattonpant gopalvarao devakate v. vithalrao marutirao (air 1975 sc 1111) and submitted that in computing the time, the day from which the tenancy commences should be excluded and if so done, in the instant case, the tenant should be asked to vacate only on 9-3-1977, and the tenancy is to be determined.....
Judgment:

K.S. Paripoornan, J.

1. The defendant in O. S. 193 of 1977 of the Munsiff's Court, Mavalikkara, is the appellant herein. The plaintiff in the suit is the respondent. The appellant is the tenant of a building belonging to the plaintiff-respondent. As per rental arrangement dated 8-10-1974, evidenced by Ext. A1, the building was let to the defendant, for one year. The agreed rent was Rs. 1.55 per day. After the expiry of the term, the defendant continued in occupation of the building. The plaintiff instituted O. S. No. 322 of 1975 for eviction and for arrears of rent. It was contended by the defendant in the said suit that there was no valid notice terminating the tenancy as contemplated by section 106 of the Transfer of Property Act. The notice terminating the tenancy in that case was Ext. 85. By Ext 85 notice the tenancy was terminated with effect from 8-11-1975. According to the defendant, the tenancy should be terminated on the day preceding the date of tenancy. The contention of the defendant, that the tenancy should be determined at the end of the day preceding that date with a further stipulation that the vacant possession of the building is to be given on the next date (8-11-1975), was accepted by the court. In that case, the tenancy was terminated and vacant possession was demanded at the end of 8th November. It was held that there was no valid notice terminating the tenancy. The suit was dismissed. Thereafter the present suit O. S. 193 of 1977 was filed claiming that the rent is in arrears from 1-7-1977 in addition to Rs. 240/- payable towards rent prior to 30-6-1977. A prayer for the issue of injunction against the defendant from making structural alteration of the build-ing was also included in the plaint. Stating that the tenancy, is terminated as evidenced by Ext. B-1 dt. 18-4-1977, and Ext. B-2 dt. 7-2-1977, the suit was instituted.

2. The defendant filed a written-statement admitting the execution of the rent deed. Ext. A-1. According to him the rent was paid on the 1st day of the succeeding calendar month. Since the plaintiff refused to issue a receipt the rent was remitted through money order. Rent till 30-6-1977 was paid. The plaintiff accepted rent after notice. The defendant also admitted dismissal of the earlier suit O. S. 322 of 1975. According to him, he is not liable to be evicted.

3. The trial court by its judgment dt. 28th Sept. 1979 found that the plaintiff is entitled to realise Rs. 240/- towards arrears of rent till 30-6-1977 and is also entitled to realise rent from 1-7-1977 at the rate of Rs. 46.50 till recovery of possession of the building. One of the important pleas taken by the defendant was that the tenancy arrangement was not terminated by a proper issue of notice under Section 106 of the Transfer of Property Act. The trial court adverted to Ext. B-l wherein the demand was made to the tenant to surrender vacant possession on 8-6-1977. The notice terminating the tenancy evidenced by Ext B-l was held to be valid: On that basis, the plaintiff landlord was held entitled to recover possession of the demised premises.

4. The defendant filed A. S. No. 33 of 1980 before the Sub Court, Mavelik-kara and attacked the judgment and decree of the court below. The attack was only on the ground that there was no proper notice terminating the tenancy. The appellate court referred to Ext. B-2 dated 7-2-1977 whereby the tenancy was terminated by 7-3-1977 with a direction to vacate on 8-3-1977. It also adverted to Ext. B-1 notice dt. 18-4-1977, the letter sent by the plaintiff to the defendant whereby the tenancy was terminated on June 7, 1977. The appellate court held that Ext. B-1 is a valid notice to quit and is in accordance with Section 106 of the Transfer of Property Act. The contention of the defendant that the day of the commencement of lease should be excluded as enjoined by Section 110 of the T. P. Act was rejected. That was on the ground that though in Ext. A-1 the term of one year is mentioned, the date of commencement of the lease was not specified. The Appellate Court also referred to the earlier suit, O. S. 322 of 1975, evidenced by Ext. A-2 judgment. It was of the view that the notice sent, Ext. B.-1, was in accordance with or in conformity with the stand taken by the defendant in the earlier suit and accepted by the court. That, according to the court, is a circumstance in favour of the plaintiff to find that the tenancy is validly terminable on the 7th of June, 1977. Except with regard to a slight modification regarding arrears payable, the lower appellate court confirmed the judgment and decree of the trial court.

5. The defendant has filed this second appeal. The only point argued before me was that Ext. P-1 is not a proper notice terminating the tenancy. Counsel for the appellant Mr. C. P. Damodaran Nair, argued that in Ext. A-1, rent deed, dt. 8-10-1974 the date of commencement of the lease is mentioned, as 'Vernacular'. So the tenant can be asked to vacate only on 9-3-1977 and not on 8th as done at present. Counsel placed reliance on Section 110 of the Transfer of Property Act, and also the decision of the Supreme Court reported in Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao (AIR 1975 SC 1111) and submitted that in computing the time, the day from which the tenancy commences should be excluded and if so done, in the instant case, the tenant should be asked to vacate only on 9-3-1977, and the tenancy is to be determined on 8-3-1977. It was contended that the view of the lower court that in Ext. A-1, no date of commencement of the lease was specified, is an error. Ext. A-1 dt. 8-10-1974 mentions that the issue is to take effect '(Vernacular).' So according to counsel Section 110 of the Transfer of Property Act should be read along with Section 106 of the Act. So construed the notice in the instant case, Ext. B-1, terminating the tenancy on 7-3-1977 is invalid and the suit is liable to be dismissed on that ground. Counsel also referred to the decisions of this Court reported in Abdul Hameed Rawther v. Bala-krishna Pillai (1968 Ker LT 865) : (AIR 1970 Ker 40) and Karunakaran Nair v. Sakharan Nair (1982 Ker LT 727) : (AIR 1983 NOC 25).

6. Counsel for the respondent Mr. T. L. Viswanatha Iyer contended that on the terms of Ext. A1, and in consonance with Ext. A2 judgment there is a proper and valid notice to quit as per Section 106 of the T. P. Act. Counsel contended that Section 110 of the Transfer of Property Act has no application in the instant case. It is also contended by Mr. Viswanatha Iyer that the provisions of Section 106 regarding issue of a notice terminating the tenancy will apply only 'in the absence of contract to the contrary'. On the terms of Ext. A1, there is a contract to the contrary and so no question of issue of any notice arises in this case. Decisions of this Court reported in Devaki v. Alavi (1979 Ker LT 671 : (AIR 1979 Ker 108) (FBI and Jacob Philip v. State Bank of Travancore (1972 Ker LT 914) : (AIR 1973 Ker 51) (FB) were referred to in this connection.

7. Counsel for the appellant and also the counsel for the respondent, both, raised a plea of estoppel. According to appellant's counsel, the landlord is estopped from contending that no notice as contemplated bv Section 106 of the T. P. Act is necessary. His submission wag that even in the former suit (O. S. No. 322 of 1975) parties proceeded on the ground that a valid notice to quit under Section 106 'is essential, but the notice issued then was found to be invalid. So it is futile for the landlord to contend that notice under Section 106 is not necessary. On the other hand Mr. T. L. Viswanatha Iyer, counsel for the respondent-landlord contended that Ext. P-l notice is in conformity with the judgment in the earlier case. Ext. A-2. The present notice is in conformity with the plea taken by the tenant in the earlier case, it was accepted by the court and the tenant obtained an advantage. In such circumstances, having taken a definite stand and succeeded therein, the tenant cannot turn round and take ah inconsistent position now, If the notice Ext. P-1 terminating the tenancy is in conformity with Ext. A-2 judgment, it Is not open to the tenant to raise a new contention based on Section 110 of the T. P. Act even if such a plea is available or open to him. As per Ext. A-2 judg-ment the tenant represented that the tenancy having commenced on 8th Oct. 1974 a notice terminating the tenancy should expire by the end of the 7th and demanding vacant possession on the 8th. This has been conformed to in Ext. B-1 notice sent in these proceedings. The tenant having obtained on advantage on the representation so made cannot now turn round and take up an inconsistent position or cannot blow hot and cold or play fast and loose stating that the termination should be on the 8th and that he can be asked to vacate only on the 9th of the month. Counsel also pleaded that the tenant by taking the plea of invalidity of the notice in the former suit obtained advantage. But so far as his party, landlord, is concerned, there was no question of his having obtained any advantage by sending a notice on the hypothesis that the tenancy can be terminated only by a valid notice to quit. Tt was also urged that so far as the landlord is concerned there is no question of estoppel in taking up an inconsistent position in the instant case. On these premises. Mr. Viswanatha Iyer further contends that, the question as to whether there has been a valid notice to quit as envisaged by Section 106 of the T. P. Act or as to whether there is a contract to the contrary in Ext. A-1, dispensing with the issue of a notice under Section 106 of the T. P. Act, need not be considered in this appeal.

8. Having heard counsel at great length I am satisfied that the contention of Sri T. L. Viswanatha Iyer to the effect that it is not open to the defendant to raise the validity of Ext. P-1 notice terminating the lease, should prevail. In this view of the matter, the other questions argued before me, do not call for adjudication. In the former suit. O. S. 322 of 1975 it was the specific plea of the tenant that in accordance with Ext. A-1 dated 8-10-1974, the tenancy should be terminated by the end of the 7th day and vacant possession should be demanded on the 8th of the month. On that basis, the court held that there was no valid notice terminating the tenancy and dismissed the suit. It cannot admit of any doubt that the tenant obtained an advantage based on that plea. The present proceeding, O. S. 193 of 1977 is a sequal to the earlier decision, O. S. 322 of 1975. In such circumstances, the principle laid down by the Privy Council in Kodoth Ambu Nair v. Echikan Chera-kara Kalu Nair (AIR 1933 PC 167) should prevail. At page 169 it was observed.

'It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman, J., in Smith v. Baker (1873-8 CP 350) 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.

See also per Lord Kanyon, C. J., in Smith v. Hodson (2 Sm. L. C. 140) where the same expression is used.'

As stated by Bowen L. J., in Gandy v. Gandy, (1885) 30 Ch. D. 57:--

'..... there would be monstrous injustice if the husband, having suggested one construction of the deed in the old suit and succeeded on that footing, were allowed,,to turn round and win the new suit upon a diametrically opposite construction of the same deed. It would be playing fast and loose with justice if the Court allowed that.'

This dictum was followed in a later decision, by Payne J. B. (M. A. L.) v. B (NE) (1968) 1 WLR 1109 at page 1124. The above principle of law is squarely applicable in the instant case. The aforesaid principle is part of the equitable, doctrine of 'election,' which in Scotland is generally referred to by the phrase 'approbate and reprobate.' Dealing with the subiect, Spancer Bower, in this celebrated book. The Law Relating to Estoppel by Representation. (1977 Edn.) at page 359, para 336. in the title 'Taking a benefit approbation and reprobation; blowing hot and cold.' states that, 'an election may yet be effective as between the parties, even though it has not been communicated by the elector to the other party, in a case where, though that other party has not been prejudiced, the elector has accepted a benefit which could be his only be-cause he has followed one course rather than the other. In such a case he will not be allowed to reverse his choice and to follow the second course available, while he retains the benefit which could be his only if he followed the first course. The principle which brings about this result is sometimes stated as declaring that a man may not simultaneously approbate and reprobate, or may not blow 'hot and cold.'

9. Reference may also be made to a few other decisions which will be appropriate in this connection. In Amritlal N. Shah v. Alla Annapurnamma (AIR 1959 Andh Pra 9) the question was this : In an application for eviction under Section 7 of the Madras Lease and Rent Control Act 1946 the tenant contended that the premises did not fall within the definition of building and that he was not a tenant within the meaning of the Act. The landlord's application was rejected. Thereupon the landlord filed a civil suit for eviction. The tenant contended in the suit that the lease related to building within the meaning of the Rent Control Act and that the Civil Court had no jurisdiction to entertain the suit. The court held that the tenant cannot be allowed to take 'inconsistent' positions. The principle of estoppel was held to be applicable, even on the footing that the Civil Court had no jurisdiction to entertain the suit. At page 14 of the judgment Their Lordships noted the general principle of estoppel governing cases of this description as laid down by Bigelow on 'Estoppel' at page 783 in the following, words;

'If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of the law available only between those who consented to exercise, could be set at naught by all. But the right of all men honest and dishonest, are in the keeping of the courts and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose.'

'The principle under consideration will apply to another suit than the one in which the action was taken where the second suit grows out of the judgment of the first. It is laid down that a de-fendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.' In Umrao Singh v. Man Singh (AIR 1972 Delhi D it was held (at p. 4) :--

'.....a person having successfully resisted a suit filed bv R for his ejectment from the land in suit on the ground that r was not a Bhumidhar and the suit for ejectment was not maintainable in a revenue court cannot take up inconsistent stand in subsequent suit relating to the same land brought by the successors-in-interest of R and contend that R was a Bhumidhar and the suit for ejectment should have been filed in a revenue court. He having already taken advantage of his pleas about the status of R and the maintainability of a suit in a revenue Court by the dismissal of the earlier suit cannot now turn round and take the stand that R was a Bhumidhar and the suit was triable in a revenue Court.'

H. R. Khanna, C. J., as he then was, observed at page 4, after quoting the relevant passages from Halsbury's Laws of England and also the decision reported in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593.

'The appellant having already taken advantage of his pleas about the status of Ranjit Singh and the maintainability of a suit in a revenue court by the dismissal of the earlier suit cannot now turn round and take the stand that Ranjit Singh was a Bhumidhar and the suit was triable in a revenue Court.' In Devaki v. Rama Panicker, 1979 Ker Ker LT 48 (S. N.) (Case No. 100), the question arose, as to whether it was open to a person to plead that he was a tenant of the whole property, and so the provisions of the Kerala Land Reforms Act will apply, when in the earlier stage in the execution petition, she had definitely taken UP the position that the lease is a building lease to which the provisions of the Rent Control Act would apply and the court directed the landlord to take recourse to the provisions of the Kerala Buildings. Lease and Rent Control Act. Holding that such a plea is not open to the applicant. His Lordship Justice T. Chandrasekhara Menon held as follows:--

Apart from the question of res judi-cata, the petitioner is barred from contending that she is a tenant of the pro-perty entitled to purchase the landlord's right on the basis of the doctrine of estoppel by inconsistent position which is rather analogous to the principle that a person may not approbate and reprobate. A party litigant cannot be permitted to assume inconsistent position in court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. This doctrine applies not only to successive stages of the same suit but also another suit than the one in which the position was taken up provided that 'the second suit grows out of the judgment in the first.' In this case in the execution petition, the present petitioner definitely took up the position that it is a building lease to which the provisions of the Rent Control Act would be applicable. Having secured advantage therein in forcing the landlord to have recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act, in spite of getting a decree from the civil court, it is not now open to the petitioner to file a petition before the Land Tribunal claiming that she is a tenant of not the building as such but of the whole property, coming within the ambit of the word 'cultivating tenant' under the Kerala Land Reforms Act.'' In Ranga Pai v. Special Tahsildar (LR). vvpeen (1983 Ker LN 9) His Lordship Justice K. K. Narendran held that having accepted in proceedings under the Buildings (Lease and Rent Control) Act that the person is a tenant as defined in that Act. it was not open to him at the execution stage to contend that he is a kudi-kidappukaran. It was so held because this plea will be inconsistent with the one raised by him before the Rent Control Court and it will not be allowed to be so pleaded. A party cannot approbate and reprobate.

10. In the light of the principlesenunciated in the above decisions, I amof the view that it is not open to theappellant (tenant) to contend that thenotice evidenced by Ext. B-1 is not inaccordance with law, or is not sufficientto terminate the tenancy evidenced byExt. A-1. The appellant cannot approbateand reprobate or play fast and loose oradopt inconsistent positions which is notpermissible in law.

11. Mr. Damodaran Nair, appellant's counsel, vehemently contended that there could be no estoppel against the statute and that the principle enunciated in the above decisions as a species of estoppel cannot to applied. Counsel contended that the requirement of a valid notice to quit is enshrined in Section 106 of the T. P. Act and the question raised is a question of law and so there can be no estoppel as contended by the respondent. I am afraid the said argument is without force. We should bear in mind that the principle of estoppel 'arising out of parties taking up inconsistent positions' and dealt with by Mr. Bigelow in his treatise (quoted in para 9) supra is really part of the 'doctrine of election' as explained by Spencer Bower and so understood, there is no bar for the plea raised by Sri. Viswanatha Iyer. Moreover, in the decision reported in Amritlal N. Shah v. Alla Annapurnamma (AIR 1959 Andh Pra 91 at page 14, in paras 14 and 15 of the judgment their Lordships quoted the general rule of estoppel as laid down by Bigelow and also further referred to the position that Section 115 of the Evidence Act is not exhaustive. In para 16 of the judgment at page 15 their Lordships noted the identical arguments advanced by counsel, in that case, and repelled the same in the following words:--

'But these principles are in no way violated by giving effect to the statement of law enunciated by Biselow on 'Estoppel' and followed in the several decisions referred to supra.' I respectfully agree with the above observations.'

12. In the light of the above, I hold that it is not open to the appellant to take the plea, that there is no valid notice terminating the tenancy evidenced by Ext. A-1. If that be so, the Second Appeal is without force. It deserves to be dismissed. I hereby dismiss the Second Appeal but in the circumstances without any order as to costs. The ap-pellant prays for time to vacate. If the appellant files an undertaking within one week that he will give possession on or before 1st June, 1983, no proceedings to evict him will be taken till then.

Issue carbon copies of this judgment to the counsel on both sides on usual terms.


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