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Judgment
Venkatasbba Rao, J.—The only question I need decide in this second appeal is, whether defendants 1 and 3 are estopped from denying the
title of the plaintiff. The plaintiff claims the property in question under a gift deed executed in 1898 by his father Kunhi Kuttiali, who at the time of
the gift happened to be the karnavan of the 2nd defendant''s tarwad. The 2nd defendant''s case is, that the property belonged to his tarwad and
that the gift deed relied upon by the plaintiff is inoperative. One Achuthan executed a lease in favour of the plaintiff''s brother in 1902, and
defendants 1 and 3 are persons holding or claiming under Achuthan. In certain proceedings, which, however, I must remark, did not relate to the
suit property, the gift deed was not recognised. Defendants 1 and 3, finding that the 2nd defendant was successful in those proceedings, attorned
to him in regard to the property in question and executed in his favour a registered marupet in 1920. The short question I have to decide is,
whether defendants 1 and 3 are estopped from denying the plaintiff''s title. Section 116 of the Evidence Act is as follows:
No tenant of Immovable property, or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that
the landlord of such tenant had, at the beginning of the tenancy, a title to such Immovable property.
As that section shows, a tenant is not estopped from showing that his landlord''s title expired at a period subsequent to the date when the tenant
was let into possession. (Everest and Strode''s Law of Estoppel, 2nd Edition, p. 276.) There is yet another exception to the rule enacted in Section
That exception is thus stated in the work to which I have just referred:
A tenant may dispute his landlord''s title, if he has been evicted by title paramount, and by a party entitled to the immediate possession of the
premises; or if under threat of eviction by a party having a title paramount and entitled to the immediate possession of the premises, he has attorned
as tenant Pp. 277 and 278.
This passage has been quoted with approval by Spencer, J. in Devalraju v. Mahamed Jaffer Saheb ILR (1911) Mad. 53 . The Lower Courts
have held on the facts of the present case, that there was no eviction but that defendants 1 and 3 voluntarily attorned to the 2nd defendant. If that
be so, the tenants should not be allowed to deny the landlord''s title. The law on this point is stated clearly in Halsbury''s Laws of England Vol. 18,
paragraph 961:
Similarly, in order to constitute an eviction by a person claiming under title paramount, it is not necessary that the tenant should be put out of
possession, or that ejectment should be brought. A threat of eviction is sufficient, and if the tenant, in consequence of such threat, attorns to the
claimant, he can set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor''s title. But there is no eviction if
the tenant gives up possession voluntarily.
The question was considered in Delaney v. Fox (1857) 2 C.B. (N.S.) 768 : (1857) 140 E.R. 618. The ease was heard by Cockburn, C. J. and
three Judges. The following observations from the judgment of Willes, J. may be usefully quoted:
It is competent to the tenant to shew that his landlord''s title has expired: but that has not happened in this case. It is then said that there is another
exception to the rule which precludes the tenant from disputing his landlord''s title, viz., where the tenant has been evicted by title paramount. No
such eviction was proved here; All that appears is, that another person was evicted from the cellar, which was not demised to the plaintiff, and that
the plaintiff, apprehending that she would be turned out, attorned to the person claiming title.
It was held on the facts mentioned in this passage, that the tenant was estopped from denying her landlord''s title. The same principle was laid
down in In re Emery and Barnett (1858) 4 C.B. (N.S.) 423 : (1858) 140 E.R. 1149. In that case again the law is tersely stated by Willes, J. Says
the learned Judge:
The question of eviction depends upon two things,--first, whether the party evicting has a good title, secondly, whether the tenant is compelled to
quit against his will.
Then he goes on to show that the tenant there voluntarily withdrew and the estoppel of the tenant applied. The last mentioned case, In re Emery
and Barnetfi, was quoted with approval by the House of Lords in Matthey v. Curling (1922) 2 A.C. 180 . The same view of the law was taken by
a Bench of this Court in Alaga Pillai v. Ramaswamy Thevan (1925) 23 L.W. 296 though the learned Judges there have not referred to the English
decisions cited above.
In the present case then, on the footing that defendants 1 and 3 attorned to the 2nd defendant voluntarily, I must hold that they are estopped
from denying the plaintiff''s title. I express no opinion on the point whether the 2nd defendant has established that he is the real owner, although in
the discussion above, I have assumed that he has good title.
I must also observe that the two Courts below have taken different views on the question whether the plaintiff has acquired title by adverse
possession as against the 2nd defendant. Even on that point, it is unnecessary for me to express any opinion in the view I have taken.
In the result, the second appeal fails and is dismissed with costs.