Patna High Court
Smt. Ambika Devi vs Sachita Nandan Prasad on 26 February, 1960
Equivalent citations: AIR1960PAT289, AIR 1960 PATNA 289
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. This second appeal by the defendant arises out of a suit in ejectment and also for recovery of arrears of rent. The subject-matter of the litigation is a piece of land comprised in municipal plot No. 349, measuring 0.13 acre, situate within the Patna Municipal Corporation bearing holding number old 6B and new 7 of Ward No. 23 in circle No. 145. For the purpose of my judgment, I can state the facts shortly, which in broad outlines are not much in dispute. One Bulaki Kunjra was a tenant of this land. He constructed a house there on and lived therein on payment of a monthly rental of Rs. 3/8/-. He died in 1925 or 1926 and was succeeded by his sons, Abdul Rauf, Hafiz, Shakur and Hamid. Harinarain Lal Choudhary acquired this holding by purchase by means of two registered instruments, one executed by the maternal grand sons of Bulaki, on 6-12-1941, and the other by his sons on 12-7-1943.
The plaintiff, who is the sixteen annas landlord, recognised this transfer and mutated the name of the purchaser Harinarain in his sherista in place of the recorded owners. Similarly, in the municipal records also his name was mutated. Thereafter, he demolished the old structures and constructed in their place a double-storeyed pucca house. On his death, he was succeeded by his widow Srimati Am-bika Devi, the defendant, who is the appellant before this Court. On 7-7-1952, the plaintiff served on the defendant a notice to quit the house by 30th day of Shawan 1359 fasli (corresponding to 5-8-1952) and remove the Amlas (structures and materials) from the disputed land.
This not being done, the plaintiff commenced the present action to eject her and recover arrears of rent at Rs. 3/8/- per month from 1st day of Jeth to 30th day of Shawan 1359 fasli, on the allegations that Bulaki. or his legal representatives and successors had no permanent interest in the land, but that they were mere tenants-at-will and were thus liable to be evicted. The defendant-appellant resisted the plaintiffs claim, asserted permanent tenancy in the land and also pleaded estoppel.
2. The learned Munsif found in favour of the defendant and held that she had acquired permanent tenancy in the disputed holding and was, therefore, not liable to eviction. He, however, granted the plaintiff a modified decree for arrears of rent only. On appeal before the learned Subordinated Judge, the decree of the Court of first instance was reversed. Two points were urged before him, first, whether the defendant was a tenant-at-will or a permanent tenant, and, second, whether the plaintiff was estopped from challenging the defendant's title. Both these points were decided in favour of the plaintiff, and the suit was decreed with costs.
3. The grounds taken before the appellate Court have been reiterated before us. Mr. Lalna-rayan Sinha appearing for the appellant first contended that the facts and the circumstances, as found by the Courts below, inevitably led to the inference that the tenancy was permanent. His argument was : The tenancy was unknown and its origin was lost. It was a case of lost grant. Having regard to the status of Bulaki, the structure was of Substantial character. It was a full-fledged residential house containing latrine, a part of it being used as a shop. It was heritable, and in course of this long period, there has been succession and inheritance recognised by the landlord plaintiff. Reference was made to the two sale deeds executed in favour of the defendant's husband by BuIaki's heirs.
The rate of rent paid for the holding was uniform throughout, being Rs. 3/8/- per month. The defendant's husband constructed a double-storeyed pucca house in 1943 to the knowledge and without objection from the plaintiff. These circumstances may, in an appropriate case, indicate permanent tenancy. But, in this particular case, the very foundation of his argument is lacking. It is not a case of lost grant. According to the finding of the learned Subordinate Judge, Bulaki was inducted upon the land sometime between 1901 and 1904, that is to say, after the passing of the Transfer of Property Act. That being so, the defendant is immediately confronted with the provisions of Section 107 of the Act, which provides that "a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by registered instrument. All other leases of immovable property may be made either by an instrument or by oral agreement".
This amounts to a statutory prohibition of the creation of such a right as is claimed here by the appellant, otherwise than by a registered instrument. No registered instrument was created in favour of Bulaki or his successors-in-interest. It was a case of verbal lease: The aforesaid considerations urged by learned counsel would not, therefore create a permanent tenancy, because that would virtually amount to overriding the specific provisions of the statute. However long the possession may be and! however costly and substantial the building may be, these acts of possession by themselves cannot, if the lease was created after the passing of the Transfer of Property Act, and if the Parties were aware of the nature of their respective interest in the land, confer a right of permanent tenancy, which, in the case of a lost grant would have done, because this will amount to conferring upon a person "a right which the statute enacts shall be conferred only by a registered instrument".
This was so held by their Lordships of the Privy Council in Ariff v. Jadunath Mazumdar, 58 Ind App 91 : (AIR 1931 PC 79). In that case, in 1913, the appellant, having verbally agreed with the respondent to grant him a permanent lease of a plot of land at Rs. 80 per month, let him into possession. Shortly afterwards the respondent, with the knowledge and approval of the appellant, erected struc-tures on the land at a cost of over Rs. 10,000. In December, 1918, the appellant definitely refused to grant the respondent the agreed lease, and in 1923 sued to eject him after a month's notice to quit. Under the Indian Limitation Act, 1908, Schedule I, Article 113, the respondent's right to sue for specific performance of the verbal agreement was barred in December. 1921.
On these facts, their Lordships of the Privy Council held that there being no lease made by a registered document as required by Section 107 of the Transfer of Property Act, 1882, the appellant was entitled to eject the respondent, with liberty to him to apply to remove the structures had the respondent's right to sue for specific performance not been barred he could have claimed the execution of an instrument which he could have registered, the appellant's suit being stayed in the meantime, Mr. Sinha, with his usual candour, conceded that when the tenancy was created after passing of the Transfer of Property Act, the principles laid down by their Lordships of the Judicial Committee in Ariff's case would apply, and the facts relied upon by him would not create a permanent tenancy in violation of the statute.
He. however, sought to impeach the correctness of the finding of the appellate Court that the tenancy came into existence between 1901 and 1904. In this connection, he pointed out that the appellate Court had overlooked important evidence. He took us through the relevant evidence, and after having heard the learned Advocates, I think, the contention is not well founded. There is adequate evidence to support the finding of the learned Subordinate Judge. Howsoever erroneous the finding may be, it cannot, unless it is perverse, be challenged in second appeal. Therefore, if the finding of the learned Subordinate Judge stands, and I see no reason to upset it, this contention must be overruled.
4. He next contended that, at any rate the defendant was entitled either to have from the plaintiff a transfer of the disputed holding or the cost of the building, as the defendant's husband made the construction bona fide in the belief that the land belonged to him. In support of his contention, he relied upon the provisions of Section 51 of the Transfer of Property Act, which is in the following terms:
"When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them".
In order to attract the provisions of this section, it must be established that (1) the person invoking the aid of this section is a transferee of immovable property, (2) he made improvements on the property believing in good faith that he was absolutely entitled thereto, and (3) he is subsequently evicted therefrom by any person having a better title. In this case, two of the conditions are fulfilled. The defendant is a transferee of an immovable property and the plaintiff has obtained a decree to evict him. The only material question for consideration is whether he constructed the structures in bona fide belief that he was absolutely entitled thereto. , The defendant does not claim absolute title to the disputed land. She claims only a limited interest, namely, permanent tenancy under the plaintiff.
The question is whether a permanent tenant can claim relief under this section, and the solution of this question depends upon whether the expression "absolutely entitled thereto" means absolute title or includes also a permanent lease. Mr. Sinha urged that a person believing himself to be a permanent tenant is entitled to compensation for improvements effected by him on eviction by the landlord, and in support of his contention he relied upon a decision of the Madras High Court in Subba Rao v. Veeranjaneyaswami, AIR 1930 Mad 298, in which a Division Bench has laid down that the main principle of Section 51 is that a person must show that he believed that he was entitled to the land in such a way that he is not to be disturbed, whether it is a sale or perpetual lease he claims under. This decision is contrary to previous decisions of the Benches of that Court, namely, Rajah of Venkatagiri v. Narasayya, 7 Ind. Cas 202: (AIR 1914 Mad 564), Perumal Gramani v. Mahamad Kasim Sahib, 28 Ind Cas 840: (AIR 1916 Mad 502) and Venkatappier v. Ramaswami Iyer, 52 Ind Cas 517: (AIR 1919 Mad 130).
The ratio decidendi of these cases is that a lessee, permanent or otherwise cannot claim compensation on eviction under Section 51 of the T. P. Act. Further, the correctness of that decision was doubted in a later case Pandarasannadhi v. Ananthakrishnaswami, Naidu, AIR 1939 Mad 247. In this case, Wads-worth J. has observed that "to hold that a person is entitled to compensation on the ground that he believes that he is absolutely entitled to the property when in fact he knows that he is only a lessee, comes very near to holding that the section means something otherwise than what he states."
It seems to me that the decision in the rase of Subba Rao, referred to above, has no binding force. There appears to be a consensus of judicial opinion for the contrary view, namely, that the provisions of Section 51 are not available to a lessee or a tenant. In Nannu Mal v. Ram Chander, AIR 1931 All 277 (FB) it has been laid down that the expression "believing in good faith that he is ab-solutely entitled thereto" means that "he is what is usually termed in India 'a full proprietor' with a heritable and absolutely transferable estate as opposed to a person holding a life estate or a rent-free grantee whose grant is liable to resumption."
Similarly, a Bench of the Bombay High Court in Vithoba Babaji v. Sholapur Municipality, AIR 1947 Bom 241 refused to extend the benefit of Section 51 to a lessee. A Bench of the Calcutta High Court in Subodh Chand v. Bhagwandas, AIR 1947, Cal 353 has laid down that the lessee is not entitled to the benefit of Section 51 even if he is a permanent lessee. A Bench of this Court has laid down, as recently as 1957, after a review of various decisions and relying upon, a previous decision of this Court, that Section 51 or the principle involved in it has no application to the case of a lessee -- vide Hiralal v. Bastocolla Co. Ltd., AIR 1957 Pat 331. There is thus a preponderance of judicial authority in favour of the view that the expression "absolutely entitled to the property" means full ownership and not the limited interest of a tenant or mortgagee, and, therefore, a lessee cannot claim compensation on eviction by the landlord. This contention also has to be repelled.
5. Lastly, Mr. Sinha contended that the plaintiff was estopped from denying the title of the defendant, and this contention, in my opinion, appears to be substantial. He referred to the two sale deeds under which the appellant's husband purchased the disputed holding. The first sale deed was executed by Muhammad Yusuf and others in favour of the defendant's husband on 6-12-1941* (Ext. C). This sale deed purports to convey to Harinarain Lal Choudhary "whole and entire 2 annas out of the entire 16 annas brick-built and tiled house, together with the residential and tenure rights, and all the appurtenances of the house.." The second sale deed dated 12-7-1943 (Ext. 6 A) also purports to convey to Harinarain Lal Choudhary "whole and entire 16 annas brick-built and tiled house, together with the residential and tenure rights and all the appurtenances of the house....".
In other words, Harinarain Lal Choudhary acquired under the sale deeds tenure rights, and not a mere precarious tenancy, namely, tenancy-at-will. It is the admitted case of the parties that these transfers were recognised by the landlord, viz., the plaintiff. The plaintiff further admitted in evidence that he had seen the sale deed of Abdul Rauf and others of 1943. His evidence thus clearly shows that he perused the sale deeds and then recognised the defendant's husband as a tenant and mutated his name in his sherista after expunging the names of the recorded tenants. On the death of Harinarain, he also mutated the name of the defendant instead of her husband. He no doubt deposed that he thought that Abdul Rauf and others had sold only the Amlas to the defendant's husband. This statement, however, cannot be accepted as correct in face of the recitals in the sale deeds.
It follows, therefore, that Harinarain purchased tenure rights and the plaintiff with full knowledge of what Harinarain had purported to purchase recognised him as a tenant, and, on his death, recognised his widow as such. Thereafter, the defendant built a double-storeyed pucca house on the suit land. This was constructed, as deposed to by the plaintiff, in 1947 or 1948. The disputed holding abuts on the main road, known as Ashok Raj-path, and is only fifteen minutes' walk from the plaintiffs house. The Courts below have further found that the plaintiff was aware of the construction of the house by the defendant's husband, and having full knowledge of the construction, he did not object to the construction, nor did he interfere with the possession of the defendant. On these facts, learned counsel urged that the plaintiff was estopped from denying the title of the defendant.
His contention is that the defendant's husband purchased tenure rights and not merely a precarious tenancy, and the plaintiff recognised him as a tenant with full knowledge of what he purchased, and even assuming, therefore, that Abdul Rauf and others had merely a tenancy-at-will, if the plaintiff, being aware of that limited interest, did not point out to the defendant's husband, rather with full knowledge of the contents of the sale deeds recognised him as a tenant, thereby inducing in him a belief that he had a tenure right, namely, a permanent tenancy, and if in that bona fide belief the defendant's husband built a pucca house on the disputed land supposing it to be his own and the plaintiff perceiving his mistake abstained from setting him right and left him to persevere in his error, and spend a large amount on the construction, the plaintiff is estopped from asserting any title to the land, on which the defendant's husband expended money on the supposition that the land was his own.
In support of his contention, he referred to a decision of a Special Bench of this Court in Dhanu Pathak v. Sona Koeri, ILR 15 Pat 589: (AIR 1936 Pat 417) and to a Full Bench decision of the Calcutta High Court in Chandra Kanta Nath v. Amjad All Haji, ILR 48 Cal 783: (AIR 1921 Cal 451). In the former case, the plaintiff brought a suit to eject the defendant from a piece of land in Chota Nagpur on the allegation that he, the defendant, was an under-raiyat of the plaintiffs who were raiyats and that he did not vacate the land after the service of notice to quit. The defence was that the plaintiffs representing themselves as tenure-holders had inducted the defendant on the land and had made a raiyati settlement thereof. The Courts below found that the plaintiffs had in fact made the representation alleged. The defendant pleaded that the plaintiffs were estopped from representing; that they were tenure-holders and were estopped from denying that he was a raiyat. On these facts, the Special Bench held that the plaintiffs having represented themselves as tenure-holders were estopped from denying that the defendant was a raiyat. Courtney-Terrel C. J., delivering the judgment of the Special Bench observed as follows:
"The plaintiffs contend that the lease is void and the learned Judge of this Court has held that there cannot be any estoppel against the statute. There is an aspect of the matter, however, which does not seem to have been brought to the learned Judge's notice. Had the terms of the lease described the plaintiffs correctly as raiyats, the defendant could not have set up a plea that the plaintiffs were precluded from denying their title to confer a permanent right upon the defendant. This would have been a genuine case of an application of the principle that there cannot be an estoppel against a statute. In this case, however, the defendant denies that the plaintiffs are raiyats and alleges that they are as represented by them, tenure-holders.
This raises an issue of fact and it is not until that issue of fact is concluded in favour of the plaintiffs that any question of the operation of the statute can arise. It is true that the record-of-rights describes the plaintiffs as raiyats but this is a piece of evidence only to which is attached the statutory presumption of correctness which is subject to rebuttal. The first issue, therefore, is as to whether the plaintiffs are or are not tenure-holders and it is at this staee that the doctrine of estoppel operates, The plaintiffs having represented themselves as tenure-holders cannot be permitted to enter into a discussion of this question of fact but must be held bound by their own representation. No question, therefore, of the operation of the statute can arise. The plaintiffs are prevented from proving the fact which is indispensable before the matter of the statute can be considered "
In the Calcutta case, the suit was for ejectment of an under-raiyat after service of notice on him in accordance with Section 49 (b) of the Bengal Tenancy Act. It was found as a fact that the notice was duly served and the plaintiffs were raiyats and the defendant an under-raiyat and that the agreement between them was for a permanent; occupation of the land by the defendant. In this case, the Full Bench has laid down that where a lease, purporting to be of permanent character, is granted by a person, who, on the face of the document, professes to have a higher status than that of a raiyat (for example that of a tenure-holder or a raiyat holering at a fixed rate), the grantee, when his title as permanent lessee is challenged by his grantor, may invoke the aid of the doctrine of estoppel and plead that the grantor cannot be permitted to prove the falsity of the recitals in the document (on the faith of which he took lease) so as to enable him to derogate from his grant.
In my opinion, the decisions in the aforesaid cases apply to the facts of the present case also. Here, the plaintiff was aware that the defendant's husband had acquired tenure rights under the sale deeds; and on the faith of those transactions and without demurring to what the sale deeds purported to convey, recognised him as a tenant, and, on his death, his wife in his place, and further allowed him to construct a double storeyed pucca house, thereby reinforcing the belief that he had a tenure right, that is to say, a permanent right, the plaintiff, on the principles laid down in the aforesaid cases, is" estopped from denying that the appellant had a permanent right in the disputed land. Mr. S. N. Dutta appearing for the respondent pointed out that such a contention is opposed to the principle laid down by their Lordships of the Privy Council in Ariff's case, 58 Ind App 91: (AIR 1931 PC 79) aforesaid, and that there can be no estoppel against a statute. As pointed out by the Special Bench in Dhami Pathak's case, ILR 15 Pat 589: (AIR 1936 Pat 417), it is not a case of an estoppel against a statute. The plaintiffs are merely prevented from proving the fact, namely, that the defendant is a mere tenant-at-will. The statute comes into operation only when the defendant is proved to be a tenant-at-will. Before that stage arrives, the estoppel operates. Apart from this, even in Ariffs case, their Lordships of the Privy Council were careful to point out that in appropriate circumstances estoppel may operate, notwithstanding the provisions of Section 107 of the T. P. Act. They observed as fallows:
"This is no case of money being expended by the respondent in any mistaken belief as to his legal rights, or of the appellant knowing of the existence of any such mistaken belief, or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent. Observe the true facts. In 1913 the respondent obtained a verbal agreement for the grant of a perpetual lease, under which agreement he could have sued for and obtained and registered an instrument creating his title to enjoy the property in perpetuity. That agreement continued to be enforceable against the appellant until the month of December, 1921, The structures were erected on the land many years before that date, and they were erected not in any mistaken belief by the respondent of his rights in regard to the land, but in assertion of rights which he correctly believed to be his; not by reason of any encouragement or abstention on the part of the appellant, but by reason of the agreement which he was then entitled to enforce against the appellant."
I make bold to say that if the facts in ArifFs case, 58 Ind App 91: (AIR 1931 PC 79) were the same as those in the instant case, the decision of the Privy Council would have been different. The contention of Mr. Sinha is thus well founded and supported by authorities and must be accepted as correct. I must hold, therefore, that the defendant-appellant is entitled to invoke the aid of the doctrine of estoppel, and the plaintiff cannot be permitted to prove that the defendant was a mere tenant-at-will contrary to his own representation.
6. In the result, the appeal should be allowed with costs throughout. The decree of the lower appellate Court is accordingly set aside and that of the learned Munsiff is restored.
Ramaswami, C.J.
7. I agree.