JOHN NADJARIAN Vs. E F TRIST

JUDGEMENT

(1.) AFTER setting out the facts of the case, the judgment proceeded. It was held at one time by some of the Courts in India that the estoppel under Section 116 of the Indian Evidence Act, 1872, only arises in favour of a landlord who puts the tenant into possession, but if the tenant had already been in possession, the estoppel did not arise, and it was competent to the tenant to show that his landlord had no title. The decision of the Privy Council in Krishna Prosad Lal v. Baraboni Coal Concern, Limited (1937) 39 Bom. L. R. 1034 P. C. has made it clear that there is no warrant for reading into Section 116 the qualifying words that the landlord contemplated there is the landlord who put the tenant into possession or that the beginning of the tenancy referred to in that section means only the tenancy begun by the tenant being put into possession. The estoppel under Section 116 of the Indian Evidence Act is wide enough to cover any case of a grantee who occupies and enjoys under a grant disputing the grantor's title. But Mr. Seervai contends that what the Privy Council decided goes much further than what I have just stated. He submits that in every case where there is an attornment by a tenant to his landlord, the provisions of Section 116 of the Indian Evidence Act must apply and the tenant would be prevented from denying his landlord's title. Now it is clear that a mere attornment does not create a new tenancy. The only effect of a mere attornment is the substitution of a new landlord in place of the old and the tenancy continues on the same terms. It may be that in some cases the attornment is not a mere attornment and as a result of the attornment a new tenancy is created. The question, therefore, that I have to determine in this case is whether a new tenancy was "created when the defendant attorned tenant to the plaintiff. It is clear from the terms of the letter of November 24, 1942, that the effect of that transaction was that the defendant accepted the plaintiff as his landlord in substitution of Mrs. Bolton and the tenancy continued the same as was constituted when the defendant became Mrs. Bolton's tenant. Therefore in one sense what the defendant is challenging is not really the title of his landlord but the right of the plaintiff to substitute himself in place of Mrs. Bolton.

(2.) IT is true-and the authorities make this clear-that even a mere attornment does create an estoppel against the tenant, but that estoppel is not the same as is given statutory effect by Section 116 of the Indian Evidence Act. There are other kinds of estoppel between tenant and landlord which fall outside the scope of Section 116 of the Indian Evidence Act. Although the fact of the defendant having attorned tenant to the plaintiff creates an estoppel in favour of the plaintiff, it still does not prevent the defendant from showing that he attorned tenant in ignorance of the fact that the plaintiff had no title.

(3.) MR. Seervai has relied on two cases of our Court in Shankar v. Jagannath (1928) 30 Bom. L. R. 741 and Krishnarao v. Ghaman (1934) 36 Bom. L. R. 1074. In Shankar v. Jagannath the defendants attorned tenant to the plaintiff. There was an oral agreement of tenancy and kabulayats were passed by the defendants. MR. Justice Patkar at p. 744 states: The question. . . to be decided in each case under Section 116 would be whether a new tenancy had arisen arid not whether the tenant had been let into possession by the landlord. In that case the Court held that the attornment created a new tenancy. In Krishnarao v. Ghaman the tenant who was let into possession passed a rent note to his landlord acknowledging that a new tenancy had arisen; and on that MR. Justice N. J. Wadia observed that for the purposes of Section 116 of the Indian Evidence Act it was not necessary that the tenant should have been actually put into possession by the landlord. I do not think that either of these cases helps MR. Seervai because in both the cases the Court found as a fact that a new tenancy had arisen by reason of the attornment which attracted the application of Section 116 of the Indian Evidence Act. But as I read them, these cases do not decide that a mere attornment necessarily creates a new tenancy.