Abdur Rahim, Officiating C.J.
1. The question referred to us is in these terms:--Whether 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? Mr. Justice Coutts Trotter, one of the learned Judges who made the reference, is of opinion that a tenant is altogether estopped from denying the title of the landlord who has let him into possession. So far there can be no doubt as to the law in India or in England. Section 116 of the Indian Evidence Act which says ' No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property' is quite clear on the point. It does not recognise any exception exempting from the operation of estoppel cases in which the tenant was either ignorant of his landlord's title or was induced by fraud or misrepresentation to enter upon the tenancy. It is only when the tenancy ceases, that he is free to deny the landlord's title, but not till then. Their Lordships of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh 2, say ' Section 116 of the Indian Evidence Act is perfectly clear on the point and rests 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 might be, so long as he has not openly restored possession by surrender to his landlord.'
2. But it has been argued before us on behalf of the plaintiff landlord, firstly, that Section 116 is not confined to cases where the tenant has been let into possession by the landlord whose title he seeks to deny and alternatively, in the next place, that the section is not exhaustive of the law of estoppel between tenant and landlord. As to the first contention, I entertain no doubt that the landlord whose title the tenant is estopped from denying is only the person from whom the tenant derived his tenancy and not his predecessor-in-title. Does the section then apply to a case where the tenant has been in possession of the land before the date of the acquisition of his title by the landlord 2 The words 'at the beginning of the tenancy ' do not in my opinion refer to the commencement of the particular lease or contract between the tenant and the landlord, but to the beginning of the occupation of the land by the tenant or by the person through whom he claims. If I am right in thinking that the estoppel enunciated in Section 116 is absolute in its nature and we were to apply it in favour of a landlord who has a derivative title and did not let the tenant into possession but to whom the tenant attorned either by executing a lease or paying rent, then we should be laying down a proposition which goes further than the law on the subject in England. In Woodfall's Law of Landlord and Tenant, page 249, 19th edition, the law in England is thus stated. ' The rule that a tenant may not dispute his landlord's title applies only to the title of the landlord who let him in ' and this is how I understand the observation of the Judicial Committee in Bilas Kunwar v. Desrqj Runjit Singh I.L.R (1915) A. 557 as to the scope of Section 116.
3. The argument that Section 116 is not exhaustive on the question of tenant's estoppel cannot in my opinion be accepted. In Sarat Chunder Dey v. Gopal Chunder Laha I.L.R. (1892) C. 296 the Judicial Committee dealing with a case of estoppel by conduct has ruled that the question must be determined with reference to Section 115 of the Evidence Act though they proceeded to point out that it did not enact anything different from the law in England. But however useful it might be to refer to English decisions to explain the principle underlying the enactments of the Evidence Act, it is from the Evidence Act alone that the law on the subject is to be gathered.
4. Bearing this in mind, I shall advert briefly to some of the English cases. In Carlton v. Bowcock and Anr. (1884) 51 L.T. Rep. 659 Gave, J. held 'where a person claiming to be the assignee of the reversion receives rent from the tenant by fraud or misrepresentation, such payment is no evidence of title, but where there is no fraud or misrepresentation, such payment is prima facie evidence of title and the tenant can only defeat that title by showing that he paid the rent in ignorance of the true state of the title and that some third person is the real assignee of the reversion and entitled to maintain ejectment. ' Here clearly there is no allusion to any rule of estoppel such as is dealt within Section 116 of the Indian Evidence Act, the question before the learned Judge being treated as one of appreciation of evidence in support of the landlord's title and of onus of proof. Much reliance is however placed on another passage in the judgment of Cave, J. where he observes ' A tenant of a house who pays rent to one who claims to be assignee of the reversion is not estopped from denying the title of the assignee in the same way that he is estopped from denying the title of the lessor by whom he has been let into possession.'
5. Reading the two passages together, I am not satisfied that the learned Judge intended to formulate a modified form of estoppel in cases like the one before him. Apart from any technicalities of pleading to which we attach very little importance in India, the effect of the so-called rule laid down in Carlton v. Bowcock and Anr. (1884) 51 L.T. Rep. 659 in its practical operation would amount to this:--the fact of payment of rent or execution of a lease is prima facie proof of title in the person who receives the rent or in whose favour the lease executed and if the tenant is unable to get rid of the effect of these facts by showing that he was acting in ignorance and that the title was in some person other than the persons to whom he paid the rent, he would have no defence to a suit for rent or in ejectment. It is perfectly clear from the authorities cited in the judgment of Mr. Justice Cave that it is open in such cases to the tenant to prove that the title is in fact in some third person. It will be seen that in the other English cases also cited in the Order of Reference, the fact of payment of rent to a person who did not let the tenant into possession is really treated as proof of the existence of relationship of landlordand tenant and naturally as a conclusive proof in the absence of adequate explanation.
6. Coming to the Indian decisions, the view that hag found favour in this Presidency is that estoppel applies only where the tenant has been let into possession by the landlord in question; Usman Koya v. Chidriamokkausa Akoth : (1905)15MLJ368 Yerraguntla Seshacharlu v. Mukkumalla Chinniah (1914) 25 Ind. Cas. 721 Annayyan v. Chinnan I.L.R. (1909) Mad., 366 and Viswanadha Row v. Chinna Kolandai Nainar (1913) 1 L.W. 197. The same view was expressed in Lal Mahomed v. Kallanus I.L.R. (1885) Cal., 519 though that case was sought to be distinguished in Ketu Das v. Surendra Nath Sinha (1908) 7 C.W.N., 596 where Mitter and Brett, JJ. gave effect to the modified form of estoppel suggested in the Order of Reference. In Lodai Mollah v. Kally Dass Roy I.L.R. (1881) Cal. 238 also, it was held, after reviewing the English decisions (Rogers v. Pitcher (1815)6 Taunt., 202 claridge v. Mackenzie (1842) 4 M. & G. 143 and Gregory v. Doidge (1826) 3 Bing. 474 that ' where the plaintiff claims by a derivative title and the defendant has attorned to him, the defendant is not thereby estopped from showing that the title is really not in the plaintiff but in some other person'. I entirely agree in that proposition.
7. I would therefore answer the question in this way:--A tenant who was let into possession is estopped from denying a landlord's title. A tenant who was not let into possession by the person seeking to eject him is not estopped from denying the plaintiff's title ; he may show that the title is in some third person or in himself. But the execution of a lease or payment of rent by the defendant is a prima facie proof of the plaintiff's title which the Court dealing with the evidence will ordinarily treat as conclusive in his favour unless the fact is sufficiently explained. In most cases of this nature the presumption in favour of the plaintiff can only be displaced by the defendant showing that the attornment was made by him in ignorance of the plaintiff's title or was induced by fraud, misrepresentation or coercion.
8. The answer to the question referred to us will be in the affirmative as proposed by my learned brothers Seshagiri Aiyar and Phillips, JJ.
Seshagiri Aiyar, J.
9. I have the misfortune to differ from the learned Chief Justice in this case.
10. The question has been argued more fully than on the last occasion and some fresh light has been thrown upon some of the points. I consider it therefore desirable that I should restate my conclusions.
11. The facts were fully stated by me in the order of reference and it is not necessary to recapitulate them here. The question whether the Indian law of evidence is exhaustive need not be discussed, as I am of opinion that Section 116 is general in its terms and does not preclude the consideration of English decisions to understand its import. It is only where the law is silent on some points, the question whether it should be supplemented by principles deducibie from English authorities can arise. That is not the present case.
12. I shall first deal with the section itself. The chapter dealing with Estoppel comprises three sections. The first one, Section 115, enunciates the general rule and prescribes no limit before or after which parties can recede from their relationship. Section 116 which deals with a particular species of Estoppel in pa/is introduces limitations regarding its operation. It is not as stringent as the general estoppel and gives freedom to parties to resile from their position under certain circumstances. Section 117 deals with a particular class of Estoppel by deed and imposes some limitations on its applicability. In English textbooks it is pointed out that Estoppel in pais may spring from (1) Livery of Seisin, (2) Entry, (3) Acceptance of rent, (4) Partition, or (5) Acceptance of an Estate. There is no reason to suppose that the framers of the Indian Evidence Act were not legislating for all kinds of tenancy when they were dealing with the relationship of landlord and tenant in Section 116. In my opinion, all the first three classes of 'Estoppel in pais' were intended to be comprised in the rule indicated in Section 116. There is nothing in the section to lead to the contrary conclusion. All tenants, including those who have attorned by deed to the landlord, must have been in the contemplation of the Legislature, because there is no indication that any were to be excluded. Prima facie, therefore, the section applies to tenants who have been let into possession as well as to those who have acknowledged the landlord by executing a deed by paying rent or otherwise. The words 'at the beginning of the tenancy' do not spell that only persons let into possession are within their connotation. There must be a beginning of the tenancy in all cases where the relationships of landlord and tenant can be predicated. I do not see any reason for narrowing their applicability to tenants to whom first possession is given.
13. One other point may be mentioned before dealing with the decided cases. The rule of law enunciated in all the sections of this chapter is subject to the general proposition that they would not avail against any statute. There have been numerous cases on this point under Section 115. The latest is Vaikuntarama Pilled v. Authimoolam Chettiar I.L.R. (1914) M. 1071 This doctrine would apply equally to Section 116. Therefore, if the estoppel pleaded can be proved to contravene the law, e. g., the law of contracts, the estoppel will not be given effect to. That is the foundation of the rule that the tenant in avoiding the estoppel can show that he has been induced by coercion, undue influence, misrepresentation, fraud or mistake (ignorance will be included in this last term). To put it shortly, the contract of tenancy can be avoided if it is subject to any of the infirmities which the Indian Contract Act has enumerated in Sections 13 to 20 of the Act. This is the general rule.
14. There is an apparent exception to this rule in the case of tenancies which commence with the tenant being let into possession. The basis of the distinction is this. A person cannot both approbate and reprobate. If he has got into possession with the consent of another, he is bound to vacate and surrender possession before he can be heard to say that that other had no right to put him in possession. He should not be allowed to use the privilege given to him to attack the man who conferred it. That is the reason why a person who is let into possession is required to give it up before he disputes the title of the person who put him in. As a matter of fact, I find nothing in Section 116, to the effect that there should be a surrender of possession before title is disputed. But that is the law in England ; and that has been read as being within the meaning of Section 116. Bilas Kunwar v. Desraj Ranjit Singh I.L.R. (1915) A. 557 Subject to this further reservation in favour of the landlord, I am of opinion that Section 116 deals with estoppels of every kind as between landlord and tenant and that there is no justification for narrowing its scope.
15. On one point, my mind was fluctuating a great deal during the course of the argument and it is this : Whether, when we speak of the estoppel in Section 116 being dependent upon proof that the contract is not vitiated by the infirmities to which all contracts may be subjected, it is not a mere question of burden of proof. After consideration, I incline to the view that the term estoppel is not misapplied in such cases. What is meant is, that it is open to a tenant to raise the preliminary issue that the contract is void or voidable. If the preliminary issue is in his favour, the relationship is not established. If it is found against him, he will be precluded from agitating the broader question that the landlord had no title when the relationship came into existence. Even where the stricter estoppel operates, which compels a party to surrender possession first, there may be a preliminary issue whether the tenant was first let into possession by the landlord. After all, in a sense, all rules of estoppel are rules of evidence and the fact that in the case of ordinary contracts of tenancy, the tenant is allowed more scope to impeach the relationship is not a ground for saying that on the question of the disproof of title, there is no estoppel.
16. I have made these general remarks, as in my opinion, the rules of English Law to which I referred in the Order of Reference, are consistent only with the considerations I have above set forth.
17. As regards decided cases, it is clear that the preponderance of authority is in favour of the view that the section applies also to tenancies other than those in which the tenant was first let into possession. In Madras, we have Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetty I.L.R. (1895) M. 200 and Kottayi Kanaran v. Ganapathi : (1911)21MLJ550 and Gavarayyamma v. Dundi Seetharamaswami (1914) 1 L.W. 821. In Calcutta there is the authority of Ketu Das v. Surendra Nath Sinha 7 C.W.N. 596 which fully and elaborately considers the question. See also Bhyro Singh v. Rajah Leelanund Singh Bahadoor (1874) 21 W.R. 153 In Allahabad, the current of decisions is all one way. Girdhari Lal v. Kalloo Mestri (1913) 22 I.C. 213 and Ganapat Rai v. Multan I.L.R. (1916) A. 226 and the cases cited in it. In Bombay also the view has been that the section is comprehensive enough to cover all cases of tenancy. Vasudev Daji v. Babaji Ranu (1871) 8 Bom. H.C.R. 175 and Trimbak Ramachandra v. Shekh Gulam Zilani I.L.R (1909) B 329 On the other hand, Annayyam v. Chinnan I.L.R. (1909) M. 366 and those that follow it, namely, Viswanadha Row v. Chinnakolandai Nainar (1913) 1 L.W. 197 and Yerraguntla Seshacharlu v. Mukkumalla Chinniah (1914) 25 I.C. 721 take the narrower view and they purport to follow the earlier Calcutta decision in Lal Mahomed v. Kallanus I.L.R. (1885) C. 519 As I said before, the view which I have been suggesting is more widely accepted in this country than the other one.
18. As regards English cases, Mr. Seshachariar has not drawn our attention to any which is in conflict with those that were cited by me and by Mr. Justice Coutts Trotter in the Order of Reference. I do not propose to refer to them again. I may however refer to a few more cases and to the conclusions stated by textwriters on this subject. In Cooke v. Loxley (1792) 5 T.R. 4 the tenant was already in possession under another and acknowledged the new landlord by paying him rent. Lord Kenyon, C.J., held that the tenant cannot give evidence of want of title in the landlord. In Cooper v. Blandy (1834) 1 Bing 45 the predecessors-in-title of the plaintiff were put in possession by the landlord. The plaintiff succeeded them and disputed the title of the landlord. In a very strong judgment, Tindal, C.J. points out that a person although not put in possession by the landlord will be estopped from denying his title if he has been in occupation of the premises. To the same effect is the decision in Panton v. Jones (1813) 3 Campb. 372.
19. Coming to the recognised text writers, I find Woodfall in his book states the proposition thus : ' If the defendant has expressly attorned to the plaintiff, he will thereby be estopped from disputing the plaintiff's title, unless such attornment be proved to have been obtained by fraud, or through some mistake of facts.'
20. In Fawcett's book on Landlord and Tenant p. 77 after a full discussion of the cases bearing on the question, it is stated, 'where a person in possession of land recognises a subsisting tenancy under another whether by payment of rent, by submission to distress, or otherwise, he is similarly estopped from disputing the title of that other, although he did not originally receive possession from him.' Foa is equally explicit. See page 425 in the third edition. Bigelow in his book on Estoppel says that ' payment of rent is evidence of permissive occupation and when unaccompanied by fraud or mistake establishes the relation of landlord and tenant and is the ordinary evidence upon which the estoppel arises, though it is by no means the only evidence upon which the estoppel may be founded.' I do not think it necessary to multiply citations any further. In my opinion the estoppel of the tenant under Section 116 is not confined to cases where possession was originally obtained from the landlord but extends to all cases of tenancy. I would therefore answer the questions referred to us in the affirmative.
21. I agree generally with the judgment that has just been delivered by my learned brother Seshagiri Aiyar, J., but I have a few words to add. The question referred for our consideration is in a somewhat restricted form and assumes that when a tenant has not been let int6 possession by his landlord he is not absolutely estopped from denying his landlord's title but can plead ignorance of the defect of title, fraud, misrepresentation or coercion and we are asked to decide whether when such pleas have failed such a tenant can prove that his landlord's title is defective.
22. The proposition that a tenant not admitted into possession by his landlord is not absolutely estopped from denying his landlord's title and could raise the pleas just above mentioned is laid down in Ketu Das v. Surendra Nath Sinha (1903) 7 C.W.N. 596 and is in accordance with the decision in Lodai Mollah v. Kally Dass Roy I.L.R. (1881) C. 288 and Gridhari Lal v. Kalloo Mestri (1913) 22 I.C 243. It has also been held that Section 116 of the Evidence Act is not applicable to a tenant who has not been let into possession by his landlord, Lal Mahomed v. Kallanus I.L.R. (1885) C. 519 and Yerraguntla Seshacharlu v. Mukkumalla Chinniah (1911) 25 I.C. 721 and Annayyan v. Chinnan I.L.R. (1909) M. 366 A contrary view has been taken by Oldfield, J. in Gavarayyamma v. Dundi Seetharamaswamy (1914) I.L.W. 821 following Madras Hindu Mutual Benefit Permanent Fund v. Ragava Chetti I.L.R. (1895) M. 200 Section 116 of the Evidence Act does not specifically make any reference to a tenant being let into possession but it states that he is estopped from denying his landlord's title ' at the beginning of the tenancy. ' These words have been interpreted in different ways and it has been held that ' the beginning of the tenancy ' means ' the time when the tenant was first let into possession, ' but it appears to rue that this is an unnecessarily narrow interpretation to put upon the words. It seems that the question as to whether a tenancy begins at a certain time depends upon whether there was any agreement between the tenant and the landlord which constitutes a new tenancy. It may be that the tenant was in possession before the new tenancy began : but it may happen that in attorning to a new landlord he executes a lease which constitutes a new tenancy on terms differing from the previous one. Can it be said in such a case that this attornment was not the beginning of a new tenancy? I think not. On the other hand, a tenant may continue to hold on the strength of the subsisting lease and, on the death of his original landlord, may continue the payment of rent to the person purporting to be his landlord's successor. In such a case when there is no specific agreement between the new landlord and the tenant, it cannot be slid that a new tenancy has arisen. The tenant holds under his old lease and is merely continuing payment of rent in accordance with the claim put forward by his supposed landlord. The payment of rent is no doubt evidence of the payee's title as landlord but is not in itself sufficient to create a new tenancy. It therefore seems to me that the question to be decided under Section 116 of the Evidence Act is not so much whether a tenant has been let into possession or not, but whether a new tenancy has arisen. If it is proved that there is a new tenancy, then under the words of the section, the tenant is estopped during the continuance of that tenancy from denying his landlord's title at the beginning of the tenancy and in such a case, I am of opinion that he is absolutely estopped and cannot even raise the pleas of fraud, misrepresentation, etc., which would ordinarily render the contract voidable and I would hold this on the principle that a person cannot approbate and reprobate. He has taken advantage of the supposed title of his landlord to obtain his lease and therefore so long as he wishes to hold the property under that lease, he cannot be heard to say that his landlord had no right to grant it. What he must do before he denies the landlord's title is to deliver up possession of the property. This proposition is laid down clearly in Bilas Kunwar v. Desraj Ranjit Singh I.L.R. (1915) A. 557 in which their Lordships of the Privy Council say ' Section 116 of the Indian Evidence Act is perfectly clear on the point and rests 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 he has not openly restored possession by surrender to his landlord.' Here, we find the words 'let into possession,' but it does not appear to me that any emphasis is laid upon these words and the principle would be the same whether a man was let into possession or whether he was continued in such possession by a specific agreement between himself and his landlord. Under Section 111 of the Transfer of Property Act a lessee is bound to' deliver possession at the end of the tenancy and consequently if he wishes to support the title of a third party, he can only do so after he has surrendered the lease to his original landlord.
23. In the case of a tenant who has not been let into possession or has not been continued in possession under the terms of a new tenancy, the position is somewhat different and that seems to be the case which has been referred to us. Such a tenant is not in the same position as the tenant with whose case I have already dealt. He has not obtained the lease on the strength of an agreement with the new landlord and consequently he may set up pleas, which are always available to a person who has made a contract, such as fraud, misrepresentation, or mistake; but unless he is able to prove one of these pleas, he is bound by his contract; and in the same way, I think, the tenant by payment of rent having impliedly made a contract with his landlord is bound by it unless he can prove these pleas. The case referred to us assumes that these grounds for avoiding the contract do not exist and consequently, I would hold that such a tenant is estopped from denying his landlord's title. It seems to me to be unnecessary to consider the question whether Sections 115 to 117 of the Evidence Act are exhaustive, for in the present case, there is no reason to go beyond the provision in Section 116 of the Evidence Act which undoubtedly reproduces the English law on the subject. In Sarat Chunder Dey v. Gopal Chunder Laha I.L.R. (1892) C. 296 the Privy Council remark that Section 116 of the Evidence Act was not different from the English law of estoppel and that there was no warrant for adding qualifying conditions and we find a similar remark in Asmatunnessa Khatun v. Harendra Lal Biswas I.L.R. (1908) C. 901. English cases may no doubt be referred to for ascertaining the principles which underlie the provisions of the section ; but certainly in a case like the persent, I think we should be guided by the words of the section itself.