R.C. Mitter, J.
1. The plaintiff who is appellant before me, instituted a suit to recover four anna share of the rent from defendant 1, Makim Sardar, who is respondent 1 before me. His case is that the remaining defendants Chandra Kumar Gan and others who are respondents 2 to 6 are the landlords of the remaining twelve anna share. The plaintiff came to Court with the case that he, Barada Prosad Gan, Chandra Kumar Gan and Jogendra Kumar Gan inducted defendant 1 as tenant on the land and that thereafter defendant 1 executed in favour of himself, the aforesaid Barada, Chandra Kumar and Jogendra a Kabuliat on 21st September 1909. Chandra Kumar and Jogendra are pro forma defendants in this suit and are respondents 2 and 3 in this appeal. Barada has no interest in the property, and it is admitted that his interest in the property has passed to the pro forma defendants. The defence that was taken was as follows: The defendant 1, said that the plaintiff was the benamidar of one Sarada Prosad Gan, whose son is Jatindra Gan, who now represents the interest of Sarada, that the defendant paid a portion of the rent claimed in the suit to the authorised agent of the plaintiff and the pro forma defendants, and that the remaining portion of the rent claimed in this suit to Jatindra who is the real owner according to this defendant. In this state of the pleadings a preliminary issue was raised as to whether defendant 1 could urge in this suit that Dinabandhu, the plaintiff, is not the real owner, and is the benamidar of Sarada and thereafter of Jatindra. Other issues were also raised one of them being: Is the defendant's plea of payment true? The learned Munsif decided all the issues in favour of the plaintiff and decreed the suit. In deciding the preliminary issue he held that defendant 1 could not raise the question in this case as to whether the plaintiff was the benamidar or the real owner in respect of the four anna share of the property claimed by him. The learned Munsif did not consider the question of benami.
2. He gives his reasons for not going into the said question. He says that in the Kabuliat as well as in the previous Amalnama by which the principal defendant was inducted on the land, the name of the plaintiff and not the name of his brother Sarada appeared, that is to say, defendant 1 had been inducted on the land by the plaintiff and therefore he held that he is estopped from questioning the plaintiff's right to receive rent. An appeal was taken to the learned District Judge. The learned District Judge has not considered the question as to whether the plaintiff inducted defendant 1 on the land as his tenant. He says that simply because a kabuliat has been executed in favour of the plaintiff, the defendant cannot be held to be estopped from denying the plaintiff's title and setting up the case that the plaintiff is the benamidar of Jatindra Gan to whom he paid a part of the rent claimed in the suit. The learned District Judge incidentally refers to the case of Kuppu Konan v. Thirugnama Sammandam Pillai (1908) 31 Mad 461, and holds that the principle of estoppel as formulated in Section 116, Evidence Act, can have no possible application when the defendant comes to Court with the case that the plaintiff suing him is the benamidar of a third party. I have to examine the correctness of the said decision. Having taken the said view the learned District Judge directed the learned Munsif to decide the two points on taking further evidence, viz., whether any payment was really made by defendant 1 to Jatindra or his Gomasta, and (2) whether Jatindra Gan was the real owner and the plaintiff a benamidar. In my judgment the learned District Judge was not right in remitting the two aforesaid points for decision by the Munsif, without recording a finding as to whether defendant 1 has been inducted on the land as tenant by the plaintiff. On that point the learned Munsif has recorded a finding and if the finding of the learned Munsif is correct, I am clearly of opinion that the learned District Judge was wrong in remitting the aforesaid two points for further consideration. If however the learned Munsif is wrong in his finding that the plaintiff inducted defendant 1 on the land, of course the learned Judge was right in asking the learned Munsif to record a finding on the two points aforesaid.
3. In any view of the case whatever may be the finding on the aforesaid questions, a further defence of defendant 1, viz., that he had paid a portion of the rent claimed to an authorized agent of the plaintiff and his co-sharers is to be considered. That point was considered by the learned Munsif who gave an adverse decision against the defendant. The said point was also not considered by the district Judge.
4. In support of the learned Judge's view on the question of estoppel, Mr. Mukherji for the respondent has placed before me number of decisions of this Court and also of the Madras High Court. The principal decisions on which he relies are as follows: Donzelle v. Kedar Nath (1871) 16 W R 186, Kedar Nath v. Mrs. Donzelle (1873) 20 W E 352, Kuppu Konan v. Thirugnama Sammandam Pillai (1908) 31 Mad 461, Muthusamy Aiyar v. Solai Konan 1915 Mad 48 and Jogendra Lal v. Mohesh Chandra 1929 Cal 22. In my judgment none of the cases except the two cases of the Madras High Court support the contention that even if a tenant has been inducted upon the land by the plaintiff, the tenant is not estopped from raising the question that the plaintiff is a benamidar of some one to whom he has paid the rent. In my view the matter is well settled, that if a tenant is inducted on the land by a person, the tenant cannot question the title of that person who has so inducted him upon the land. This position was stated in clear terms in Lodai Mollah v. Kally Das (1882) 8 Cal 238 and Lal Mohomed v. Kallanus (1885) 11 Cal 519. The cases where a tenant can be allowed to raise a question as to the title of the landlord are also noticed in the said judgments. The principle is laid down in clear terms in Bhaiganta Bewa v. Himmat Bidyakar 1917 Cal 498. At p. 11 Sir Asutosh Mukerjee puts the matter in this i'orm. Enjoyment by permission is the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. Two conditions, then, are essential to the existence of the estoppel, first possession, secondly, permission; when these conditions are present, the estoppel arises, and the estoppel prevails so long as such possession continues. That this was unquestionably the law in this country before the Evidence Act was passed is clear from a long line of decisions. The doctrine was expressly formulated in Mohesh Chandra Biswas v. Gooroo Persad Bose (1863) Marshall 377; Vasudeb Daji v. Babaji Kami (1871) 8 Bom H C R 175 and was impliedly recognized in Bani Madhub Ghose v. Thakoor Doss Mundul (1866) Beng L R Sup Vol 588, Gouree Doss Byragee v. Jugurnath Roy (1867) 7 W R 25., Messrs. Burn & Co. v. Rusho Mayee Dossee (1870) 14 W R 85 and Jainarain Bose v. Kadambini Dasi (1871) 7 Beng L R 723n. Wehave further the weighty opinion of Sir Subramanya Ayyar, C. J., expressed in Muthunanjan v. Suina Samavaiyan (1905) 28 Mad 526, that the law has not in this respect, been altered by the Evidence Act and that now, as before, a tenant who had been let intopossession was estopped from denying the landlord's title without first surrendering possession: see also Trimbak Ramchandra Pandit v. Gulam Zilani Waiker (1910) 34 Bom 329.
5. Suhrawardy, J., in Indra Narain Manna v. Sarbasova Dasi 1925 Cal 743 held that a tenant is not estopped from questioning the derivative title of the plaintiff who is suing him, the title being derived from a person who had inducted the tenant upon the land. The matter has been settled by the decision of their Lordships of the Judicial Committee in the case of Mt. Bilas Kumrar v. Desraj Ranjit Sing 1915 P C 96, where the view of their Lordships is expressed thus:
Section 116, Evidence Act, is perfectly clear on the point and rests on the principle well established by many English cases: 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.
6. This is also the view which has been enunciated in Jogendra Lal v. Mohesh Chandra 1929 Cal 22, by Mukerjee, J. He says that a tenant is estopped from questioning the title of his landlord who had inducted him upon the land, during the continuance of the tenancy, but the doctrine of estoppel does not extend after the discontinuance of the tenancy, that is to say, it is open to the tenant to question the title of the landlord who had inducted him, if the tenancy is terminated and possession surrendered; and the tenancy may be terminated in any of the ways noticed in the said judgment, that is to say, where it has been determined either by having run its prescribed course or by act of parties as for instance, by reason of notice to quit served, or forfeiture, or by an act of law, that is to say, the tenant is dispossessed by a person claiming and having a title paramount. The cases cited by Mr. Mukherji for respondent, namely, Donzelle v. Kedar Nath (1871) 16 W R 186 and Kedar Nath v. Mrs. Donzelle (1873) 20 W E 352, do not support him. The case in Kedar Nath v. Mrs. Donzelle (1873) 20 W E 352 is same as the case in Donzelle v. Kedar Nath (1871) 16 W R 186, at a later stage. In those two cases the defendant had executed a kabuliat in favour of one Mt. Anusul Burkut who granted a Patni to the plaintiff, and on the basis of this Patni the plaintiff claimed sixteen anna rent from the defendant. The defence was that Mt. Anusul was the benamidar of her husband Golam Hossain and that on the death of the husband Golam Hossein, Anusul inherited one anna share only, the other shares being inherited by her co-widow and other heirs of Golam Hossein. The lower Courts held that the defendant was bound by the kabuliat and could not challenge the title of Mt. Anusul and urge that she was a Benamidar of her husband. There was no allegation in that case that Mt. Anusul had inducted the defendant on the land. All that is laid down in that case is that in India, the English doctrine of estoppel by deed ought not to be applied. This position is made clear in the judgment of Paul, J.; the passage is to be found at p. 189 of Donzelle v. Kedar Nath (1871) 16 W R 186, and is made clearer by Phear, J., when the case came up again before the High Court. The judgment is reported in Kedar Nath v. Mrs. Donzelle (1873) 20 W E 352. I shall quote a relevant passage from Paul, J.'s judgment and which is as follows:
The question was a simple question to try upon the evidence, but instead of doing so, the Judge disposed of the substantial case put forward by the defendant by adjudicating in the plaintiff's favour upon the question of estoppel raised by him, and applying the technical doctrine of estoppel obtaining under the English law; the Judge considered that he could not look behind the kabuliat which was admitted by the defendant, inasmuch as a tenant could not deny his landlord's title. My learned colleague has pointed how this mode of treatment amounts to a begging of the whole question, I do not propose to discuss here the doctrine of estoppel, but as this subject is so often used in arguments and in grounds of appeal before this Court, I wish to make a few remarks with reference to it. In England where the usage denoted by benami transaction is wholly un-known, it is supposed and therefore assumed that all deeds and conveyances truly represent the title of parties set forth in them. Deeds are called solemn instruments They are executed after considerable deliberation and under the guidance and with the advice of able legal advisers. In England, and in fact wherever the English law prevails and English institutions exist, it is right to suppose that what is stated in deeds and other similar documents represents the true state of things, and consequently parties should not be allowed afterwards to question the truth of what has been deliberately stated. But in this country it being well known that documents are neither so drawn nor executed as in England, and it being equally well known that persons make statements wholly regardless of the truth for present and ulterior purposes, it would be unsafe and unjust to hold parties strictly to statements made by them in deeds and other documents and to apply the technical doctrine of estoppel in the manner in which that doctrine is applied in cases governed by English law.
7. This passage to my mind makes it clear that the learned Judges of this Court in the case of Donzelle v. Kedar Nath (1871) 16 W R 186, were only considering the application of the English doctrine of estoppel by deed to this country and all they laid down is that having regard to the dissimilarity of conditions prevailing in India, the English doctrine of estoppel by deed ought not to be extended to India. The learned Judges remitted the case to the lower appellate Court for decision on its merits, viz., whether Mt. Anusul Burkut was the benamidar of her husband, and if she was what was the extent of her share. In case she was a benamidar, the plaintiff by his Putni Potta would only get the share of rent which Anusul inherited from her husband who was dead at the time of the suit. On remand the learned District Judge recorded a finding that Mt. Anusul was the benamidar of her husband and her share was one anna because she had a co-widow. The matter again came on appeal before this Court. The point that was considered in this case was whether Mt. Anusul Burkut was the benamidar of her husband and what was her share. The last question depended on the question as to who were the other heirs. In their judgment their Lordships said that the appeal was argued as a regular appeal. At p. 353 of Kedar Nath v. Mrs. Donzelle (1873) 20 W E 352, Phear, J., said:
The case then came up to the High Court by way of special appeal, and it was there held that the trial in the lower appellate Court had been incomplete and unsatisfactory. Paul, J., pointed out very clearly that the English doctrine of estoppel had been imperfectly apprehended in the Courts below, and altogether wrongly applied. If it had been admitted or proved that the defendant was let into possession of the leased property by Anusul Burkut, then, probably in this country, as well as in England, the principle would come into play that a man shall not, during his possession of premises leased to him, be allowed to dispute the title of the person who put him into possession. No doubt in this case the kabuliat, as being a document signed by the defendant, furnishes strong evidence against him of any material facts stated in it. But it is we think almost impossible, and certainly it would be very inequitable, that there should be anything in this country of the nature of the old English doctrine of estoppel by deed.
8. I have italicised the relevant passages in this judgment. The learned Judges who had to deal with the same case at a second stage explained the judgment of Boyley, and Paul, JJ., in Donzelle v. Kedar Nath (1871) 16 W R 186. As I have pointed out above, the cases since then have uniformly laid down that the doctrine of estoppel operates where the tenant has been let into possession by the person whose title the tenant questions. In the two cases of the Madras High Court, which have been referred to me, it has been held that Section 116, Evidence Act, prevents a tenant to question the title of the real owner, but does not prevent him from raising the question when the person who had inducted him on the land is the benamidar of the other. I do not quite follow this decision. If A puts B into possession, it is well settled that B cannot question the title of A. If B is allowed to plead and prove that A is a benamidar, then B is allowed to question the title of A, because after all a benamidar, represents the shell and not the substance of ownership. If B says that A is a benamidar, he says that A has no beneficial interest in the property. For this reason, I do not feel impressed with the judgments of the Madras High Court. I do hold that the doctrine of estoppel operates in such a case also. It also prevents the tenant from urging that the man who has let him into possession is a benamidar.
9. In this view of the matter, I do hold that the learned Judge was not right in making an order which he made without determining the question on the evidence on the record as to whether defendant 1 had been inducted upon the land by the plaintiff. There is a recital in the kabuliat, and there is other evidence on the record. Those pieces of evidence must be considered by the learned District Judge and he must come to a finding that the defendant 1 had been let into possession by the plaintiff he would not allow the defendant to challenge the title of the plaintiff and prove that he is the benamidar of Sarada and Jotindra. If he comes to the conclusion that the defendant had not been let into possession by the plaintiff, it will be open to defendant I to raise the question of benami, and in that case the two issues framed by the learned District Judge for the decision by the learned Munsif will have to be gone into by the learned Munsif, on the evidence on the record as well as on the evidence which the parties may choose to adduce. In any event, whatever may be the finding of the learned District Judge on the aforesaid point the further defence of defendant I that he had made payments to an authorized Gomosta of the plaintiff must be gone into.
10. I accordingly set aside the order of the learned District Judge and remand the case to him in order that the appeal before him may be disposed of in the light of the observations which I made above. The costs of this appeal will abide the result, hearing fee two gold mohurs.