Report No. 69

Chapter 58

Rule Excluding Evidence of title

Section 116

I. Introductory

58.1. A special rule excluding evidence of title is given in section 116. It reads-

"116. 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; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given".

58.2. As the Evidence Act was enacted before the passing of the Transfer of Property Act in 1882, it uses the expression "tenant", while the expression used in the Transfer of Property Act is "lessee".

58.3. Analogous to estoppel.-

This section is described in the Act as a species of estoppel- vide the marginal note to the section-but, strictly speaking, where a tenant enters into occupation of premises, he does not make any representation of fact to the landlord, though he does make a promise to pay the rent. In this respect, section 116 can be distinguished from section 115. It is really estoppel by agreement.

58.4. It will be more accurate to say that since the tenant could not have got the possession of the land without admitting the right of the landlord, he should not be allowed to deny that right, so long as he is in possession.

58.5. There is, no doubt, some element of estoppel present in this case namely, that on the strength of the implied undertaking made by the tenant, the landlord put him into occupation and thereby did something to his detriment. The tenant is now estopped from denying the truth of that which was the foundation of the relationship. Thus, action taken by a person (landlord in this case) on the strength of the act of another, is the common element in sections 115-116.

II. Rationale

58.6. Rationale.-

As to the rationale underlying the section, we would like to quote the observations of Baron Martin in Cuthbertson v. Irving, (1860) 4 H & N 742 (757) : 28 LJ

Exch 306: 5 Jur (NS) 740, quoted in Krishna Prasad v. B.C. Concern, AIR 1937 PC 251 (254).

"If the lessor have no title and the lessee be evicted by him who has title paramount the lessee can plead this and establish a defence to any action brought against him; but so long as the lessee continues in possession under the lease the law will not permit him to set up any defence founded upon the fact that the lessor 'nil hebuit in enemantis' and that upon the execution of the lease there is created in contemplation of law a reversion in fee simple by estoppel in the lessor which passes by descent to his heir and by purchase to an assignee or devisee."

This state of law in reality tends to maintain right and justice and the enforcement of the contracts which men enter into with each other (one of the great objects of all law); for so long as lessee enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor or the heir or assignee of his lessor really is? All that is required of him is that having received the full consideration for the contract he has entered into, he should on his part perform it".

58.7. The Privy Council has, after quoting this passage, observed:1

"Not every word of this passage can be taken as law in India at the present time, but it is a useful exposition of the reason2 which underlies the well-known doctrine of estoppel which has been enacted for India in section 116, Evidence Act".

1. Krishna Prasad v. B.C. Concern, AIR 1937 PC 251.

2. Emphasis added.

58.8. Estoppel based on agreement.-

It would thus appear that the estoppel under section 116 is by reason of agreement, and is based on permissive enjoyment. If A, being in possession of land, delivers the possession to B upon his request and upon his promise to return it, with, or without rent, at a specified time, or at the Will of A, then B cannot be allowed, white still retaining possession, to dispute A's title, because, to allow him to do so would be to allow him to work a wrong against A by depriving him of the advantage which his possession afforded him, and with which he would not have parted, but for the promise (or, rather the implied agreement) of B that he would hold it from him and in his place and stead1. The broad principle is that a person who has received property from another will not be permitted to dispute the title of that person or his right to do what he has done.2

1. Franklin v. Mirda, 35 Cal 558 (American case) cited in Woodroffe.

2. Bigelow Estoppel, 6th Edn., pp. 589-590.

58.9. Thus, the estoppel of a tenant is founded upon the contract between him and his landlord. The tenant took possession under a contract to pay rent as long as he held possession under the landlord, and give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admitted and under whose title he took possession has not a title.1

1. Stringre's Estate (in re:), LR 6 Ch. D 9 (10); See Duke v. Ashoy, 7 H&N 602.

58.10. Previous Law.-

The section enacts no new principle. This was so even before the Act as is clear from the cases which arose in Calcutta,1 and Bombay.2

1. Mohesh Chandra Biswas, (1863) Marshall 3771; and Banee, (1866) Bengal Law Reports Supplement, Vol. 588.

2. Vasudev Daji, (1871) 8 Born HCR 175.

III. Scope and Consequences of the Doctrine

58.11. Licensee and other relationship.-

The section covers tenants as well as licensees. There is no distinction between the relation of a tenant and that of a licensee, to whom the same principles apply.1 The section, therefore, specifically mentions licensees of immovable property. Though not mentioned in the section, licensees of trade marks and patents are also governed by a similar principle-compare section 117. Even as to tenants, it is true to say that the section does not contain the whole law of the tenant es toppe1.2

1. Doe d. Johnson v. Baytup, 3 A&E 188.

2. Md. Mujibar v. Sheik Isab, (1928) 32 CWN 867: AIR 1928 Cal 546.

58.12. An important consequence of the rule estopping a tenant is that a tenant cannot acquire a title against his landlord during the currency of the lease; for, occupation by a tenant is never adverse to the landlord's title, which the tenant is estopped from denying. Any encroachment by the tenant on land belonging to third parties will also ensure for the landlord's benefit.1 unless a different intention is shown by the conduct of the landlord,2 or tenant.

1. (a) Whitmore v. Rumohries, 1871 LR 7 CP 1;

(b) Att.-Gen. v. Tomline, (1880) 15 Ch D 150;

(c) East Stonchouse U.D.C. v. Willoughby Bros. Ltd., (1902) 2 KB 318;

(d) King v. Smith, (1950) 1 All ER 553.

2. Kingsmill v. Millard, (1855) 11 Exch 313.

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