Patanjali Sastri, J.
1. This revision petition raises an interesting question of law on which it is said there is no direct authority.
2. The petitioner brought the suit for recovery of the first year's rent payable under a registered kadapa executed by the respondent on 23rd May, 1935, for a term of five years. The defence was that out of the 5 acres 40 cents covered by the kadapa (Ex. A.), 4 acres and .10 cents belonged to the petitioner's adoptive mother, that the petitioner who was managing her properties on her behalf leased the said 4 acres and 10 cents along with 1 acre and 30 cents of his own land, describing the entire property as his own, that part of the rent proportionate to the extent belonging to her was paid and accepted by the petitioner's adoptive mother and that the balance had been paid to the petitioner. The kadapa recites that the properties leased were in the absolute possession and enjoyment of the petitioner and contains a covenant by the respondent to pay the rent to the petitioner. There can be no doubt therefore that the respondent took the lease from the petitioner as the absolute owner of the properties leased. It has, however, been found as a fact by the Court below that the petitioner had been managing the properties of his adoptive mother, that 4 acres and 10 cents out of the land comprised in the lease belonged to her and that the respondent had made payments as alleged by him. On these findings the Court below held that there was no estoppel and dismissed the suit.
3. The petitioner's learned Counsel contended that the respondent was estopped under Section 116 of the Evidence Act from denying that the petitioner had title to the entire property covered by the lease, and that the lower Court was wrong in allowing the respondent to allege and prove the contrary. It was, however, argued for the respondent that the rule of estoppel laid down in Section 116 of the Evidence Act does not preclude the tenant from showing that, in granting the lease, the landlord acted as the agent of another person who was the owner of the property but without disclosing his agency, and that the liability to pay the rent was discharged by payment to that owner. Learned Counsel relied on Woodfall on Landlord and Tenant pages 90 and 91 as showing that the principle applicable to contracts made by an undisclosed agent (see Section 231 of the Indian Contract Act) applies also to contracts of tenancy. It may be that, according to this principle, the real owner could sue to enforce the covenant for payment of rent but it would be open to the tenant in such a suit to apply to have the agent, that is, the lessor under the instrument, also impleaded as a party so as to have all questions regarding the right to rent completely settled in the suit and thus safeguard himself against having to pay the rent twice over. However that may be, it is difficult to see, how the fact, that the undisclosed principal is also entitled to sue for the rent in a case of this sort, can be a ground for permitting the tenant to plead discharge by payment to the former, as that would be contrary to the rule of estoppel laid down in Section 116 of the Evidence Act; for he cannot establish such a plea without showing that the person to whom he paid the rent and not his lessor was the owner of the property leased, which is exactly what the estoppel is intended to prevent him from showing.
4. Learned Counsel for the respondent placed reliance on Kuppa Konan v. Thirugnana Sambandam Pillai I.L.R.(1908)Mad. 461 a person benami for another, the real owner and not the benamidar must be regarded as the landlord for the purposes of Section 116 of the Evidence Act. The facts of the case do not clearly appear in the report but it seems to me that a distinction must be made between a case where a person claiming to be the owner of a certain property leases it to a tenant but takes the lease deed in the name of his benamidar and the case where a benamidar happening to be in possession of the property on behalf of the real owner grants a lease of it without disclosing his benami character. In the former case it may be correct to say that the tenant's estoppel operates in favour of the real lessor and not the benamidar who was not a party to the transaction. The decision in Kuppa Konan v. Thirugnana Sambandam Pillai I.L.R.(1908)Mad. 461 , was apparently a case of that kind. But in the second case referred to above, the benamidar clearly comes within the protection of Section 116 as he was the person who in fact leased the property and placed the tenant in possession. If the proposition laid down in Kuppa Konan v. Thirugnana Sambandam Pillai I.L.R.(1908)Mad. 461, was intended to apply also to this class of cases, I would respectfully dissent from it.
5. In the result, the revision petition is allowed with costs and the petitioner will have a decree for the amount claimed less the sum found to have been paid to Him. The parties are agreed that the sum payable on this basis is Rs. 162. There will be a decree accordingly for this sum with interest at 6 per cent. from date of suit. The parties will pay and receive proportionate costs in the lower Court.