JOHN NADJARIAN Vs. EFTRIST

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 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.) What I have just stated is in no way inconsistent with the statement of the law to be found in the latest decision of the Privy Council in Krishna Prosad Lal V/s. Baraboni Coal Concern, Limited their Lordships of the Privy Council observed: 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 attornment to A who claims to have the reversion, or the landlord by acceptance of the 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. The principle does apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who let the tenant in , as distinct from any other person claiming to be reversioner. Again at p. 1040, after referring to two Indian cases, their Lordships said: ...both cases are really outside Section 116, not being concerned with title at the beginning of the tenancy, but with the common case of a sitting" tenant attorning to a new individual as entitled to receive rent.