NAGINDAS SANKALCHAND Vs. BAPALAL PURSHOTTAM

JUDGEMENT

(1.) The question in this appeal is whether the defendant-appellant is estopped from questioning the title of the plaintiff-respondent, as both the lower Courts have held.

(2.) The title originally vested in three brothers one of whom, Chandulal, became insolvent. Prior to the insolvency the brothers had let the appellant into possession as a tenant. After the insolvency of Chandulal the three brothers passed a mortgage in favour of the plaintiff- respondent, and the appellant thereafter attorned to the respondent and paid him rent. The appellant brought the present suit in ejectment, the respondent set up an oral tenancy for the period in suit. Both the lower Courts held it not proved, but did not allow him to lead evidence questioning the respondent's title, on the ground that he was estopped. The defendant appeals.

(3.) It is argued for the appellant that he is not estopped on two , grounds, firstly, because the mortgage by an insolvent was illegal under Section 28 of the Provincial Insolvency Act and the taint of that illegality extends to the rent-note obtained by the mortgagee-respondent in his own favour; secondly, because the appellant was not let into possession by the mortgagee, but had already been in possession under the mortgagors. In support of the first proposition reliance is placed on the decisions of this Court in Laxmanlal V/s. Mulshankar and Bhavan Lallu V/s. Umar Mahomed (1926) 29 Bom. L.R. 97, s.c. I.L.R. 51 Bom. 43. On the second point, the authority of Lal Mahomed V/s. Kallanus (1885) I.L.R. 11 Cal. 519 is relied upon.