TEJ BHAN MADANversusII ADDITIONAL DISTRICT JUDGE AND OTHERS

                             TEJ BHAN MADAN                                       A
                                          v.
          II ADDITIONAL DISTRICT JUDGE AND OTHERS

                                  MAY 9, 1988

                [R.S. PATHAK, CJ, S. NATARAJAN AND                                B
                      M.N. VENKATACHALIAH, JJ.]

         Indian Evidence Act, 1872: Section 116-Estoppel in relation to
    tenants-Whether there can be denial of title of landlord without tenant
    renouncing.

          Uttar Pradesh (Temporary) Control of Rent and Eviction Act,
                                                                                  c
    1947: Section 3(1)(f)-Denial of title of the landlord by tenant-·
    Forfeiture of tenancy-When arises.

          Mainavati, who bad purchased the premises in question at a
    court-sale, conveyed the same by sale in favour of Gopinatb. The appel-       D
    lant who was in occupation attorned his tenancy in favour of Gopinath.
    Gopinath, in turn, si>Id the property in favour of Cbbaya Gupta, the
    third respondent. The appellant-tenant on being asked to attorn the
    tenancy in favour of Cbbaya Gupta, declined to do so and assailed not
    only the derivative title of the third respondent to the property but also
    the validity of the sale in favour of Gopinatb himself on the ground that     E
    Mainavati had not acquired the totality of all rights and interests in the
    property and, as such, her title was defective.

          "This act of disclaimer of the title of Gopinatb to whom the appel-
    lant bad attorned was the foundation of proceedings in ejectment. The
    High Court, dismissing the appellant's writ petition, upheld the order        F
    of ejectment made by the Courts below.

          Before this Court it was contended by the appellant: (1) that the
    High Court was in error in.its view that the stand taken by the appellant
    amounted in law to a denial of title of the landlord, and (2) that the view
    of the High Court on the scope of a tenant's estoppel was erroneous.          G

          Dismissing the appeal, it was

          HELD: (1) The law as to the estoppel of a tenant under Section
    116 of the Evidence Act was a recognition, and statutory assimilation,
    of the equitable principles underlying the doctrine of estoppel in rela-      H
                                       247
\
    248         SUPREME COURT REPORTS                I1988] Supp. 1 S.C.R.
    tion to tenants. The Section was not exhaustive of the law of estoppel.
A   The section inter-alia, predicated that no tenant of Immovable property
    during the continuance of the tenancy, would be permitted to deny thal
    the landlord of such tenant had, at the beginning of the tenancy, title to
    such property. [2518-C]

B        (2) There could be a denial of the title of his landlord without the
    tenant renouncing his own character as a tenant, where, for Instance,
    he had set up a plea of !us tertii. l254B]

          (3) The derivative title of the third-respondent was not denied on
    any other ground than the one that the vendor, Gopinath--to whom
    appellant had attorned-had himself no title, the Implication of which
C   was that if appellant could not have denied Gopinath's title by virtne of
    the inhibitions of the attornment, be could not question third-respon-
    dent's title either. What appellant did, indeed, amounted to a denial of
    title which appellant was precluded from doing on the general
    principles of estoppel between landlord and tenant. [254C-D l
D
          (4) Having regard to the findings of fact recorded by the High
    Court, it appeared to be a clear case which attracted the grounds for
    eviction under section 3 (1) of the uttar Pradesh (Temporary) Control
    of Rent and Eviction Act, 1947. [254E-F]

E           Kumar Krishna Prasad Lal Singha Das v. Baraboni Coal Con-
    cern Ltd., AIR 1937 PC 251, referred to.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 80 of
    1981.                                                 .

F        From the Judgment and Order dated 10. 7.80 of the Allahabad
    High court in Civil Miscellaneous W.P. No. 5661of1979.

            Manoj Swamp for the Appellant.

            S.K. Bagga for the Respondent.
G
            The Judgment of the Court was delivered by

          VENKA TACHALIAH, J. This appeal, by special leave, by the
    tenant arises out of and is directed against the Judgment dated 10.7.1980
    of the Allahabad High Court in Civil Misc. Writ Petition No. 5661 of
H   1979 rejecting the appellant's challenge to of the decrees of ejectment
          TEJ BHAN v. II ADDL. DIST. JUI)GE IVENIY\TACHALIAH, J.] 249

     gra11\e\I in favour of the third respondent-landlord on !he ground that
                                                                                 A
     there was a denial of the title of the landlord within the meaning, and
     for purposes, of Sec\ion 3(1)(f) of the Uttar Pradesh (Temporary)
     control of Rent apd Eviction Act, 1947 (Act III of 1947).

           The appeal raises a short question whether, in the cirt;Ulllstances
     of the case, there was a disclaimer on the part of the appellant of the     B
     landlord's title, so as to incur forfeiture of the tenancy.

           2. The necessary and material facts may briefly be stated:

          The premises in question, i.e. No. 7/3, Shambhoo Barracks,
          Allahabad, originally belonged to a certain Shambhoo Lal Jain. C
          Shamboo Lal died in the year 1943 leaving behind him his widow
          J:lajul Devi; his two sons, Dayachand and Dhoomchand; and a
          cjaughter Mainavati. Dayachand, it is stated, went away in adop-
          tion to the family of one Banvarilal, a brother of Shamboo Lal.
          Pursuant to and in execution of a money-decree obtained by the
          said Mainavati against her brother Dhoomchand, she brought D
          the said premises for sale and claimed to have purchased the
          same at a Court-sale on 21.5.1956. Mainavati, thereafter, con-
          veyed the property by sale in favour of a certain Gopinath
          Agrawal.

            Appellant who was in occupation of the premises as a tenant E
     even prior to the sale·attomed the tenancy in favour of the purchaser
     Gopinath and came to pay the rents to Gopinath accordingly.
     Qopim\th, in tum, sold the property in favour of Chl:laya Gupta, the
-1   tl:lird respcmdent herein. B.oth the vendor-Gopinath and the
     purchaser-Chhaya Gupta issued notices to the appellant to attom the
     tenancy in favour of the purchaser, Chhaya Gupta. But appellant- F
     tenant declined to do so and assailed not only the derivative title of the
     third-respondent to the property but also the validity of the sale in
     favour of Gopinath himself.

            3. The provocation for the denial on the part of the appellant of
     the third respondent's title was this: It would appear that in a separate G
     litigation which culminated in the judgment dated 6. 7 .1971 of the
     Allahabad High Court in First Appeal No. 260 of 1968 between the
     s;rid Mainava~ti on the one hand and a certain Chamanlal on the other,
 :   it was held that what Mainavati had acquired under the execution sale
     of' 24.4.1956 was not the totality of all rights and interests in the pro-
     perty, but was only such right, title and interest as the judgment- H
    250         SUPREME COURT REPORTS                [ 1988] Supp. 1 S.C.R.

    debtor, i.e. Dhoomchand, had and that the Court-sale did not convey
A   to Mainavati the interest of Raju! Devi, the widow of Shamboolal Jain.
    It was also held that Chamanlal who obtained a decree against both
    Dhoomchand and the estate of Shamboolal would, notwithstanding
    the sale in favour of Mainavati, be entitled to bring the residuary
    interests in the same property for sale in his execution. Appellant
B   sought to raise this defect in Mainavati's title. But the point to note,
    however, is that the appellant had attorned the tenancy in favour of
    Gopinath Agarwal, paid rents through-out the period during which
    Gopinath's interest subsisted. The question was whether despite this
    attornment, the appellant could assail Gopinath's title. Appellant
    sought to assert that the sale in favour of Gopinath was void and
    conveyed nothing.
c
          This act, on the part of the appellant, of denial and disclaimer of
    the title was the foundation of the proceedings in ejectment. The High
    Court, dismissing the appellant's writ petition, has upheld the order of
    ejectment made by the Courts below.
D
          4. We have heard Shri K.B. Asthana, learned Senior Counsel
    for the appellant and Shri B.D. Aggarwal, learned Senior Counsel for
    the contesting third-respondent. The point that Shri Asthana sought to
    put across was that the High Court was in error in its view that the
    stand taken by the appellant in his reply dated 3.4.1972 amounted in
E   law to a denial of title of the land-lord and that, at all events, the view
    of the High Court on the scope of a tenant's estoppel was clearly
    untenable. Learned counsel submitted that the estoppe1 of a tenant
    does not go so far as to bar him from questioning the derivative title of
    an assignee of the reversion or from contending, as here, that, in
    addition to the particular person claiming to be the successor or
p   assignee of the reversion, there were also others who were co-owners
    of the reversion. On the first aspect, learned counsel submitted that
    where a tenant requires from the person, claiming to be assignee or
    successor-in-interest of the reversion, proof of the vestitive facts on
    which the claim rests or where the tenant alleges that the reversion
    vested not exclusively in the person so claiming, but in a body of
G   co-owners, there was no disclaimer of the position of the tenant as
    tenant.

         On the second aspect, learned counsel submitted that estoppel of
    a tenant is in respect of, and confined to, the title as at the time the
    tenant was inducted or let-into possession, that appellant could yet
H   show that the attornment made in favour of Gopinath Agarwal, from
      TEJ BHAN v. II ADDL. DIST. JUDGE [VENKATACHALIAH, J.J 251

whom the third respondent claims, was in ignorance of the full facts
                                                                             A
and the result of fraud and mis-representation, and that under these
circumstances, appellant's acknowledgment of Gopinath Agarwal as
the landlord, would not debar him from contending that Gopinath
himself was not the full owner, but had acquired only an undivided
share and interest in the property.
                                                                             B
      5. The hw as to estoppel of a tenant under Section 116 of the
Evidence Act is a recognition, and statutory assimilation, of the equit-
able principles underlying estoppel in relation to tenants. The section
is not exhaustive of the law of estoppel. The section, inter-alia, predi-
cates that no tenant of immovable property shall, during the conti-
nuance of the tenancy, be permitted to deny that the landlord of such
tenant had, at the beginning of the tenancy, title to such. property.        c

     Referring to. the reason underlying this branch of the doctrine of
estoppel Marton B ~d: (Cuthberton v. /rwing, 28 LJ Ex. 306).

            " ......This state of the law in reality tends to maintain       D
            right and justice and the enforcement of contracts which
            men enter into with each other-for so long as a Jessee
            en joys every-thing which his lease purports to grant how
            does it concern him that the title of the lessor ..... is?"

       Shri Asthana may be right in his submission that a tenant who,        E
without disclaiming his own position as tenant, however, seeks proof
of title from an alleged assignee of the reversion ·cannot be held to
have denied the landlord's title. It may also be true that the estoppel of
a tenant is primarily in relation to his landlord who had let him into
possession and that, accordingly, such tenant is not precluded from
questioning the alleged derivative title of a person claiming to be the      F
successor to, or assignee of, the reversion, for want of proof of the
vestitive facts on which the cl?im for attornment is based. The rule of
estoppel does not also preclude a tenant from contending that the
landlord's title has since terminated by transfer or otherise or has been
lost or defeated by title-peramount. In English case law there was
some authority for the proposition that the tenant was only estopped         G
from denying his landlord's title only if at the time he took the lease
from the landlord he was not already in possession of the land.       ' ·

      In Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Con-
cern Ltd. and Ors., AIR 1937 PC 251 the judicial committee noticed
this contention thus:                                                        H
    252        SUPREME COURT REPORTS                I1988] Supp. 1 S.C.R.
               "The defendant company contended before the High Court
A
               that the s.ection only applies where it is shown that the
               landlord put the tenant into possession of the property, and
               that when a person already in possession of land becomes
               tenant to another there is no estoppel against his denying
               his lessor's title .... "
B
    However, it was held:
               "There is in English case law some authority for the view
               that a tenant is only estopped from denying his landlord's
               title if at the time when he took his lease he was not already
               in possession of the land. But in Section 116, the Indian
c              Legislature has formulated no such condition. The words
               'at the beginning of the tenancy' give no ground for it.
               When a demise of land is made and acted on, when the
               tenant proceeds to occupy and enjoy under the grant, gets
               the shelter of the grantor's title and the benefit ·of his
               covenants, it is diffic.ult to see why 'during the continuance
D
               of the tenancy' he should be free of this form of estoµpel.
               'Tenant who has occupied but not entered' is a difficult
               notion to thrust into Section 116 and quite impossible to
               find therein."
          6. In the present case the plea of the landlord is that the general
E   principles of estoppel preclude the tenant from denying the title of the
    person to whom he has attorned. In Kumar Krishna Prasad's case their
    Lordships observed:

                ", .... The principJe·does not apply to disentitle a tenant
                to dispute the derivative title of one who claims to have
F               since become entitled to the reversions, though in such
                cases there may be other grounds of estoppel e.if., by attorn-
                ment, acceptance of rent etc . ..... "
    "The section does not deal or profess to deal with all kinds of estoppel
    or occasions of estoppel which may arise between landlord and tenant
     .............. Whether during the currency of a term the tenant by
G
    attomment to A who claims to have the reversion, or the landlord by
    acceptance of rent from B who claims to be entitled to the term is
    estopped from disputing the claim which he has once admitted are
    important questions, but they are instances of cases which are outside
    Section 116 altogether .. , .... "
H
                                                         (emphasis supplied)
                                           '
              TEJ BHAN v. II ADDL. DIST. JUDGE [VENKATACHALIAH, J.] 253

              In regard to the effect of attomment Spencer Bower on Estoppel
                                                                                     A
      says:

                   "192. Where a tenant, with full knowledge of the_ facts,
                   either expressly in writing, or impliedly by acts, such as the
                   payment of rent, attoms tenant to a person other than his
                   original landlord or one who is claiming the estate or            Ii
                   interest of such original landlord by assignment, succes-
                   sion, or otherwise, he is ordinarily estopped from question-
                   ing the title of the person to whom he has so attomed. But,
                   here too, it is open to the party sought to be estopped to
                   explain away the attomment, and so escape the estoppel to
                   which is would otherwise be subject, by proof that, when he
                   so atiomed, he was labouring under mistake or ignorance as        c
                   to material facts affecting the title of the person to whom he
                   attomed, particularly if such error or ignorance was due to
                   the fraud of that person."
                                                               (emphasis supplied)
                                                                                     D
                   (Estoppel by Representation by Spencer Bower &
                   Turner-in Edn.)

            The concurrent findings of facts in this case-it is indeed a rnatter
      of admission of the appellant-that ever-since the purchase by
      Gopinath Agarwal the appellant attomed the tenancy in his favour and           E
      paid rent to him. Appellant did not establish that there was misrepre-
      sentation on the part of Gopinath or mistake on the part of the appel-
      lant misleading appellant into this attomment. High Court observes:

                   " ..... In the courts below, an attempt was made to get
                   over the effect of the defendant having attomed to                F
                   Gopinath Agrawal by trying to demonstrate that the
                   attomment was as the result of fruad and mis-representa-
                   tion practised by Gopinath- Agrawal. Both the Courts
                   below have rejected this plea, which is undisputably purely
                   one of fact. Counsel for the petitioner made no attempt to
                   show that the said finding of the courts below is wrong."         G

            8. Now, Section 3(1)(f) which refers to one of the grounds for
      eviction under the Act envisages:

                   "(f) that the tenant has renounced his character as such or
:;J                     denied the title of the landlord and the latter has ncit     H
    254         SUPREME COURT REPORTS                [1988] Supp. I S.C.R.

A                    waived his right or condoned the conduct of the
                     tenant;"

    There can be a denial of the title of his landlord without the tenant
    renouncing his character as such where, for instance, he sets up a plea
    of Jus-tertii. The stance of the appellant against the third-respondent's
B
    title was not on the ground of any infirmity or defect in the flow of title
    from Gopinath, but on the ground that the latter's vendor-Mainavati
    herself had no title. The derivative title of the third-respondent is not
    denied on any ground other than the one that the vendor., Gopinath-
    to whom appellant had attorned-had himself no title, the implication
    of which is that if appellant could not have denied Gopinath's title l/y
c   virtue of the inhibitions of the attornment, he could not question third-
    respondent's title either. Appellant did himself no service by this
    stand.

           It must, accordingly, be held on both the aspects contended-for
    by Shri Asthana that what appellant did, indeed, amounted to a denial
D
    of title and that appellant was precluded from doing so on the general
    principles of estoppel between landlord and tenant. The principle, in
    its basic foundations. means no more than that under certain cricum-
    stances law considers it unjust to allow a person to approbate and
    reprobate.
E         Having regard to the circumstances of this case and the findings
    of fact recorded by the High Court it appears to us to be a clear case
    which attracted the grounds under Section 3(1) of the Uttar Pradesh
    (Temporary) Control of Rent and Eviction Act, 1947 (Act 3 of 1947).
    The view taken by the High Court does not call for interference. We
    accordingly find no merit in this appeal which is dismissed but without
F   an order as to costs.

    R.S.S.                                                 Appeal dismissed.