Report No. 69

IV. Limitations of the section

58.13. It might be useful to draw attention to an important limitation on the scope of the section. In the first place, the operation of the section is restricted to the period of "continuance of the tenancy", so that the tenant is not estopped from denying the title of the person who was his landlord, if the tenancy has expired. Usually, judicial decisions dealing with this aspect assume that this principle applies only after the tenant has surrendered possession. We shall discuss this aspect later.1

1. See discussion as to "continuance of tenancy", infra.

58.14. The second important limitation of the section is that the estoppel is confined to the title of the landlord "at the beginning of the tenancy". The section so provides expressly. Its application to cases of attornment is, however, a matter of some difficulty, and will be adverted to later.1

1. See discussion as to attornment, infra.

58.15. In the third place-to discuss a limitation not so explicit in the section-a plea of the illegality of the transaction of lease can, according to judicial decisions,1-2 be raised by the tenant. The landlord will have to recover possession on the basis of title.

1. Abdul Aziz v. Kanthu Mallick, 1911 ILR 38 Cal 512 (515) (non-registration under the Bengal Land Registration Act, 1876).

2. Madras Hindu Mutual Benefit Permanent Fund v. V. Ragava Chooty, 1896 ILR 19 Mad 200 (208).

58.16. In the fourth place, if the relationship of tenancy is itself denied and not proved, the section can have no application.

V. English Law as to Estoppel between Landlord and Tenant

58.17. There is, in England, a general rule that a tenant is estopped from denying his landlord's title,1-2 and a landlord from denying his tenant's. This is connected with the rule that if A permitted B to take possession of A's land, B may not dispute A's title and so plead jus tertii against him3.

Estoppel is a principle of the law of evidence which, in this case, precludes parties who have created a tenancy from denying their respective capacities as against one another.4

Thus, the landlord cannot question the validity of the tenancy that he has purported to grant, and the tenant may not question the landlord's title to grant it,5 unless ultra vires.6 The estoppel operates from the time when the landlord puts the tenant into possession7.

1. Mogarry & Wade Law of Real Property, (1966), p. 651.

2. Cock v. Loxley, (1972) 5 TR 4; Alchorne v. Gomme, (1824) 2 Ring 54; Cathbertson v. Irving, (1860) 6 H&N 135; Halsbury's, Vol. 5, 247, 248, approved in Mackley v. Nutting, (1949) 2 KB 55 (62): (1949) 1 All ER 413.

3. Tadman v. Henman, (1833) 2 QB 168 (171).

4. Spencer Bower Estoppel by Representation, 1st Edn., pp. 251, 252, cited by Mogarry and Wade Law of Real Property, (1966), p. 651.

5. Webb v. Austin, (1844) 7 Man&G 701.

6. Rhyl UDC v. Rhyl Amusements Ltd., (1959) 1 WLR 465 (ultra vices).

7. (a) Hall v. Butler, (1830) 10 A&E 204; (b) Doe d. Marlow v. Wiggins, (1843) 4 QB 367.

58.18. The doctrine is not confined to lease by deeds. It applies to tenancies from year to year as well as to leases for a year,1 and at sufferance2 and statutory tenancies under the Rent Acts;3it applies even to licences;4 and it operates whether the tenancy was created by deed or writing or orally.5

1. Halsbury's, 2nd Edn., Vol. 13, p. 504, para. 572 approved in Mackley v. Nutting, (1949) 1 All ER 413 (416, 417).

2. Doe d. Bailey v. Poster, (1846) 3 CR 215 (229).

3. Stratford v. Syrett, (1958) 1 QB 107.

4. (a) Doe d. Johnson v. Baytup, (1835) 3 A&E 188; (b) Compare Tadman v. Henman, (1893) 2 QB 168 (171).

5. (a) E.H. Lewis & Son Ltd. v. Morelli, (1948) 2 All ER 1021; (b) Mackley v. Nutting, (1949) 2 KB 55.

VI. English Law as to Tenancy by Estoppel

58.19. In addition to the estoppel between landlord and tenant, there are, in England, certain cases in which there is said to be a tenancy by estoppel, which has been thus explained:1 "If a person with no estate in land purports to grant a tenancy of the land, the grant can pass no actual estate.2"

"Yet, even though the lessor's want of title is apparent to the parties3, both the pries and their successors in title will be estopped from denying that the grant was effective to create the tenancy that it purported to create. There is thus brought into being a tenancy by estoppel under which the parties and their successors in title have (as against one another) most of the rights and liabilities of an estate in land, although no estate is actually granted. Such a tenancy will, for example, devolve and may be alienated in the same way as any other tenancy, and the landlord may distrain for rent in the ordinary way. But since estoppels do not bind strangers, he cannot exercise his normal right to distrain goods not owned by the tenant."

1. Megarry & Wade Law of Real Property, (1966), p. 1008.

2. The Doctrine is discussed by A.M. Pritchard in 80 LQR 370.

3. Footnotes referring to cases omitted.

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