1. The defendant is the appellant in this second appeal. The suit was for recovery of possession of the property together with arrears of rent of Rs. 1541 and also for future rent. The trial court refused the relief for possession but granted a decree for Rs. 163-5-4 being arrears of rent for the period from 15-11-1943 to 23-2-1944. On appeal by the plaintiff, this decision was reversed by the learned District Judge and the suit was decreed for possession and also for arrears as prayed for. Provision was also made for future rent at the rate of Rs. 50 per mensem from 10-8-1946 till date of delivery of possession.
2. The suit was based on tenancy and court fee was also paid on that basis. The suit property belonged according to the plaintiff to his joint family. One Govmdaswami and Velappa Naidu were two brothers, wnether they were divided or undivided is a matter in dispute between the parties. By his first wile, Govindaswami had three sons, Venkataswami who died in 1935, Narayanaswami who died long ago and Ramaswami who died on 12-2-1943. By his second wife, he had two sons, the plaintiff, Ranganathan, and Balakrishnan. Velappa Naidu had no sons, but by his first wife he had two daughters Rangalu Animal & Rajammal & Rangalu Animal had three sons. Velappa Naidu also married a second wife Chinnammal. Valappa Naidu died sometime in 1919. On 15-3-1937 under Ex. B. 3, Ramaswami, who was the then manager of the family and the minor sons of Venkataswami, sold a half share in the house for a sum of Rs. 1000 to Palaniswami, his brother-in-law, i.e., sister's husband.
Notwithstanding the sale, Ramaswami seems to have continued m possession either in his own right or partly in his own right and partly as the agent of Palaniswami. On 7-12-1938 the property was leased to the defendant for a period of five years and Ex. A. 1 the rent deed dated 20-5-1340 was executed between Ramaswami and Guruswami. After the death of Ramaswami on 12-2-1943, Ranganathan, the present plaintiff, who became the family manager, sued the defendant in S.C.S. No. 485 of 1943 for rent due for the period between 7-3-1943 and 7-6-1943. Exhibit A. 2 is a copy of that plaint. The suit however did not proceed to trial and was settled on 18-11-1943 (Vide Ex. B. 1) by an endorsement made on the plaint that a decree may be passed for a sum of Rs. 47-12-0 against the defendant in favour of the plaintiff. The Question of repairs to the house was left open. In pursuance of this endorsement, a decree followed. Vide Ex. A. 2(b). Before the period of five years expired on 22-11-1943 the defendant issued through his lawyer a notice Ex. A. 3 claiming a certain amount for repair charges and in that he added a note that he had to vacate the aforesaid building in December and as no other building was available due to war conditions, the period of lease might be extended for another year under the Defence of India Act.
To this, Ranganathan sent a reply Ex. A. 4 on 6-12-1943. The lease expired on 7-12-43 and there was no assent on the part of Ranganathan to extend the term of the lease. On 7-1-1944 Palanisami's sons, Palaniswami having died by that date, instituted a suit O. S. No. 46 of 1944 against the present defendant who was impleaded as the third defendant and the plaintiff and his brother who were impleaded as defendants 1 and 2, for partition of the house into two halves and for recovery of possession of a 1/2 share together with profits. In that, it was alleged that, Ramaswami, being the maternal uncle of the plaintiffs and a resident of Coimbatore, and the plaintiffs being residents of Kanur village, Avanashi taluk, Ramaswami was allowed to rent the house for the benefit of his brothers defendants 1 and 2 and also for the benefit of the plaintiffs. The lease to this defendant on 20-5-1940 is claimed therefore to be on behalf of these and also on behalf of other members of the family.
In the same year, the plaintiff filed O. S. No. 132 of 1944 Sub Court, Coimbatore. Exhibits. 2 is the plaint for setting aside the alienations made by Ramaswami and in that suit he impleaded as party the present defendant as the 11th defendant, as by that date the defendant obtained two sale deeds for the two halves of the house viz., Ex. B. 4 dated 23-2-1944 from Chinnammal, the widow of Velappa Naidu, Rangalu Ammal the daughter and the daughter's sons of Velappa Naidu, and Ex. B. 6 dated 3-3-1944 from Palanisami's widow Rukmini Ammal and his sons. In this suit however the plaintiff was put to election and the suit as against the 11th defendant was dismissed, as he elected to proceed against the other defendants. The suit filed by Palaniswami's sons O. s. No. 48 Of 1944 was dismissed as settled out of court on 7-3-1944, four days after the execution of the sale deed by Palaniswami's widow and sons, Ex. B 6. There is an endorsement on the plaint by the advocate on 7-3-1944 that the matter was settled out of court and therefore not pressed. This fact, though it does not appear from Ex. B. 2, the typed copy of the plaint filed in that case, was admitted on behalf of the respondent by his advocate, who produced a certified copy of the plaint with the endorsement. The plaintiff Ranganatham filed the present suit on 9-8-1946 for recovery of possession and rent basing his suit on the tenancy evidenced by Ex. A. 1.
3. The defendant pleaded, inter alia, that he became the owner of the property by reason of his purchase under the two sale deeds Ess. B. 4 and B. 6 of the two halves of the house from Velappa Naidu's representatives and from Palaniswami's widow and sons. He therefore contended that the relationship of lessor and lessee between him and the plaintiff was determined and that the suit based on tenancy could not be decreed. The trial court on these facts held following the decision in -- 'Md. Hussain v. Abdul Gaffoor', AIR 1945 Mad 321 (A), that the relationship of lessor and lessee had ceased to exist by reason of the purchases, but that he became the owner of a half share of Velappa from 23-2-1944 but as regards the other half covered by Ex. B. 6 got from Palaniswami's widow, the defendant was estopped from pleading title as it practically amounted to saying that Ramaswami the lessor had no title on the date when the tenancy was created. The estoppel was based on Section 116 of the Evidence Act, but as the suit was based on tenancy and no partition was permissible, he refused the relief for possession but granted a decree for rent for 15-11-1943 to 23-2-1944 for the one half covered by Ex. B. 6 viz., for a sum of Rs. 162-5-4.
4. On appeal by the plaintiff, the learned District Judge held that notwithstanding the sales in favour of the defendant, as he did not surrender possession of the property, the defendant was estopped from disputing the plaintiff's title. He construed the defendant's plea in effect to be that Ramaswami had no title from the beginning to one half share as it belonged to Velappa and to the other half as it belonged to Palaniswami, which therefore came within the scope of Section 116 of the Evidence Act. He allowed the appeal and decreed the plaintiff's suit as prayed for.
5. The point, therefore, for determination is whether the defendant is estopped from disputing the title of the plaintiff to the suit property.
6. Section 116 of the Evidence Act enacts that
"No tenant of immoveable property, or persons 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 immoveable property".
The section applies to a tenant let into possession and also to persons claiming through such a tenant; in other words his representatives. Though the section does not refer to the landlord and his representatives, it undoubtedly applies even between representatives of the landlord and the tenant or his representatives. The estoppel is confined to the title of the landlord at the beginning of the tenancy, so that even if the dispute is between the landlord and the tenant or his representative, the estoppel is restricted to the title at the inception of the tenancy and therefore it does not expressly include the landlord's representatives. But it is now established that estoppel does not extend to the derivative title of the persons claiming though the landlord. Vide -- 'Krishna Prosad Lal v. Baraboni Coal Concern Ltd.', AIR 1937 PC 251 (B), that is to say, that if A is the original landlord & B claims reversion either as his heir or as the donee or as the adopted son of A, it is open to the tenant to deny the derivative title, that is, he can dispute that the person claiming to be the heir is not the heir or the donee or the adopted son.
But if once the derivative title is established, the tenant cannot, even between himself and a person who claims the reversion, deny the title of the original landlord at the commencement of the tenancy. The section restricts the estoppel to the period during which the tenancy continues. But it is now well settled that the duration of the estoppel continues so long as the tenant has not openly restored possession by surrender to his landlord. Vide -- 'Mt. Bilas Kunwar v. Ranjit Singh', AIR 1915 PC 96 (C) and -- 'Bhaiganti Bewan v. Himmat Badyakar', AIR 1917 Cal 498 (D). The reason for this as pointed out by Jessel M. R in -- 'Shaw v. Ford', (1877) 6 Ch. D. 1 at pages 9 and 10 (E), is that a person who took possession under a contract to pay rent as long as he held possession at the end of the term to the landlord should not be allowed to say that the man whose title he had admitted and under whose title he took possession has not a title. The basis of the estoppel is the contract. If for example, a tenant obtains a lease for a period of 21 years but subsequently finds that the landlord had only five years' title, it is not open to him after the expiry of the period of five years to set up against the landlord 'jus tertil'.
Of course, the real owner can always step in and recover possession of the property. But so far as the tenant is concerned he cannot defeat the right of the landlord as the possession of the tenant is rested on a contract whereunder he admitted the title of the landlord and obtained possession of the property. The extension, therefore, of the duration of estoppel is founded on a logical basis. The estoppel is also restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder. Sir George Rankin in -- 'AIR 1937 PC 251 (B)', examined the scope of estoppel under Section 116 of the Evidence Act and observed that it does not deal or profess to deal with all kinds of estoppels, which may arise between a landlord and his tenant, that it is confined only to one cardial and simple estoppel.
The section postulates, to quote the learned Judge at p. 255
"that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that, that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise -- which is the case before the Board on this appeal the section applies against the lessee, any assignee of the term and any sublessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the detect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of 'rent etc'. In this sense, it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
7. In order to constitute eviction by title paramount, it has been established by decisions in England & in India that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant however gives up possession voluntarily to the title holder, he cannot claim the benefit of this rule. See Halsbury's Laws of England, Vol 20, 2nd Edn at page 176--para. 195 ana Poa on Landlord and Tenant, 6th Edn page
194. See also -- 'Ammu v. Ramakrishna Sastri', 2 Mad 226 (F), -- 'Subbaraya v. Krishnappa', 12 Mad 422 (G), -- 'Alaga Pillai V. Ramaswami, AIR 1926 Mad 187 (H), -- 'Lingayya Ayyavaru v. Gangiah', AIR 1928 Mad 58 (I), -- 'Chokkalingam Pillai v. Ganesa Shanmugasundaram Pillai', (J), -- 'Raj Krishna Prasad v. Baraboni Coal Concern Ltd', AIR 1935 Cal 368 (K) and-- Ram Rakha Mal v. Munnalal', AIR 1931 Lah 243 (L).
In the present case, there was no cesser of title of tile landlord after the tenancy was created. It is not known whether Velappa and Govindaswami were divided or undivided and whether Velappa's representatives, Chinnammal and others had any interest in the property. The transaction of sale in favour of the defendant Ex. B. 4 dated 23-2-1944 executed by Chinnammal is a mere voluntary act on the part of the defendant. It cannot be said that there was any assertion of title by a paramount title holder and a consequent threat pf eviction. In respect of the sale deed therefore for one half, the defendant cannot escape from the bar of estoppel under Section 116 of the Evidence Act. His plea so far as this is concerned, practically amounts to saying that from the beginning, Ramaswami had no title for one half and therefore directly comes under Section 116. The appellant strongly relies in the part of the case upon the decision of this court in -- 'AIR 1945 Mad 321 (A)'. There it was held that the doctrine of estoppel under Section 116 of the Evidence Act between a landlord and a tenant has no application to the same parties, even while the tenancy exists, where the question of title arises between them not as landlord and tenant but as vendor and purchaser. This principle is stated by Lord Halsbury in his Laws of England, Vol. 13, 2nd Edn. page 504 & is based upon the decision in -- 'Nesbitt v. Mablethorpe Urban Dt. Council', (1917) 2 KB 568 at p. 579 (M) a decision of Bailhache J. At page 579 the principle is thus stated by the learned Judge:
"I will assume that the tenancy of a few yards of ground estops a tenant from denying his landlord's title to the surrounding acres held under the same title or claim of title but I think the doctrine of estoppel which operates between landlord and tenant has no application to the same parties even while the tenancy exists when the question of title arises between them, not in this relationship of landlord and tenant but of vendor and purchaser."
The point for consideration is the meaning of the expression "not in this relationship of landlord and tenant but of vendor and purchaser". If, as was the case in -- '(1917; 2 KB 568 (M)', the question arose in a title suit and not in a suit based on tenancy, it cannot be seriously contended that by reason of the estoppel, the title could not be canvassed. We think the observations of the learned Judge were intended to draw a distinction between suits based upon tenancy and suits based upon title. If the suit is based upon tenancy alone the question of title cannot be gone into in such an action and the estoppel operates. The tenant cannot defeat the title of the landlord by showing that since the beginning of the tenancy he had voluntarily acquired title of the property and then recover back his property, if he can establish his title. In the suit based upon tenancy, which is narrow in its scope, the question of title cannot be gone into, and it is not possible to determine the validity of the title put forward by the tenant.
But the position is totally different where the suit is based upon title. The decision in -- 'AIR 1945 Mad 321 (A)', was one based upon title and the purchaser from two co-sharers instituted the action for partition and separate possession. In such a suit, of course, there is no room, when the relationship that was canvassed was that of vendor and purchaser, to invoke the doctrine of estoppel and to shut out the trial of the issue concerning title. The unreported decision referred to in --'Md. Hussain. v. Abdul Gaffoor', (A), referred to in the said decision is also of a similar nature. In view of this, the reliance of the learned advocate for the appellant on -- 'AIR 1945 Mad 321 (A)', is of no avail, as the title of Velappa Naidu and Chinnammal to the property cannot be gone into in this suit, which is based on tenancy.
8. But the sale under Ex. B. 6 in our opinion, does not stand on the same footing. It is no doubt true that even in this case, when Ex. A. 1 was executed, Ramaswami had no title to one half, as he had already parted with that title under Ex. D. 3 dated 15-3-1937 in favour of his brother-in-law Palaniswami. But the defendant was faced with this situation in 1944 after the expiry of the term fixed under the lease and before he became a tenant holding over viz., that there was a suit filed by Palaniswami's sons O.S. No. 46 of 1944 in which they claim partition and separate possession of a half share in the house against the present plaintiff and his brother and also the present defendant. The suit was filed on 7-1-1944 and the sale deed was obtained on 3-3-1944 and the matter was reported settled on 7-3-1944.
There was therefore a serious threat of eviction by the paramount title holder, and the defendant was therefore obliged, in order to avert eviction, to purchase the property. The contention urged on behalf of the respondent that this was also a voluntary act on the part of the defendant, cannot be accepted. If the property was not purchased by the defendant, the suit would have proceeded to trial and the defendant would have been evicted from a half portion of the house. It was to avoid such a contingency that he settled the matter with the plaintiffs in that action and purchased the property. It cannot be said that defendants 1 and 2 in that action, viz., the present plaintiff and his brother were unaware or these proceedings and it cannot be seriously maintained --- there is also no evidence to support it--that it was a collusive compromise or a collusive suit.
9. The learned counsel for the respondent does not seriously dispute the principles of law established by the decisions stated above, but his argument was that the sale under Ex. B. 6 was a voluntary act on the part of the defendant and that therefore the principle of eviction by title paramount should not be applied. He also contended further that in fact there was no proof of the title of Palaniswami's sons in the present case, and that it is not enough merely to raise a plea of eviction by title paramount but that there should be proof also of title. Exhibit B. 3 was admitted by P.W. 1 and was proved by him that it was executed by his brother Ramaswami. Still no steps were taken by the plaintiff even though several years have elapsed, to set aside that sale deed and to have it declared, if it was possible, that it was not binding on the family. In the suit which they filed in O. S. No. 132 of 1944, they elected to proceed only against the other defendants and abandoned the claim against the present defendant. Under these circumstances it is not possible to hold that there was no proof, at least prima facie proof, of the title of Palaniswami's sons.
10. It is also contended that the plea was not raised in the courts below and that the matter was not canvassed in the manner in which it was done before us. We find on a reference to the judgment of the trial court that even there the defendant relied upon the decision in -- 'AIR 1931 Lah 243 (L)', under issue 2 and issue 2 was, therefore, understood as raising the plea of eviction by title paramount also. There is therefore no force in the argument advanced by the learned counsel for the respondent.
11. It therefore follows that the defendant is estopped only to the extent of the half share covered by Ex. B. 6. The plaintiff, however, cannot get possession in this suit, as it is not possible in this suit to partition the property and deliver a half share to the plaintiff. In such a case, as pointed out by Foa on Landlord and Tenant, 6th Edn., page 195, where there is eviction by title paramount of only part of the demised premises, the whole of the rent is not suspended, but rent has to be apportioned. Applying this principle, the plaintiff may be entitled to rent for half the house. But the difficulty is that after the expiry of the term, there is no continuance of the tenancy so as to convert him into a tenant holding over. He would therefore be entitled only to damages for use and occupation. But this has not been the basis of the suit, and this has not been determined by the trial court.
12. It therefore follows that the second appeal must be allowed and the decree for possession must be vacated and the suit must be dismissed with costs throughout.