(Appeal (disposed of on 14-2-1945) against the decree of the Court of the Subordinate Judge of Vellore in A.S. No. 32 of 1943 preferred against the decree of the Court of the District Munsif, Tirupattur in O.S. No. 560 of 1939.)

Leach, CJ.

Two questions of law arise in this appeal. The first has reference to the application of S. 116 of the Evidence Act. The second is one of limitation.

The appellants are the legal representatives of one Naivasal Abdul Wahab Sahib, who instituted a suit in the Court of the District Munsif of Tirupattur for partition of two items of immoveable property. The properties originally belonged to three brothers, Mohammed Hussain, Mohamed Ghouse and Mohamed Usman. On the 20th September 1926 Mohamed Hussain who was a major, for himself and on behalf of his brothers who were minors, conveyed item No. 1 to Mahaboob Bivi, the wife of the first defendant and the mother of the second defendant and on the 28th September 1928, he conveyed item No. 2 to her. Mohamed Ghouse attained his majority in 1930 and Mohamed Usman his in 1936. On the 24th September 1936 the plaintiff, the first defendant and a third person took a lease of both the properties from Mahaboob Bivi for a period of ten years. On the 16th November 1939 the plaintiff bought the shares of Mohamed Ghouse and Mohamed Usman in them. On the 14th December 1939 he filed the present suit for partition.

The District Munsif held that the suit could not be maintained because S. 116 of the Evidence Act precluded the plaintiff from questioning the title of Mahaboob Bivi. The defendants also pleaded that the suit was barred by limitation, but this plea was rejected by the District Munsif. The finding on the issue of estoppel was sufficient to dispose of the suit and consequently he dismissed it. On appeal the Subordinate Judge of Vellore agreed with the District Munsif on the question of estoppel but disagreed with him on the question of limitation in so far as item No. 1 was concerned. The result was that the appeal was dismissed. The plaintiff died during the pendency of the appeal in the Subordinate Judges Court. His legal representatives were brought on record in his place and they have filed the present appeal.

The rule of estoppel embodied in S. 116 of the Evidence Act only applies to the denial of the title of the landlord at the beginning of the tenancy. In the recent case of Parvati Ammal v. Mangilal Sowcar (L.P.A. No. 44 of 1944) a Division Bench of which I was a member, applied the rule stated by Bailhache, J. in Nesbitt v. Mablethorpe Urban Council (1917) 2 K.B. 568). In that case Bailhache, J. said that the doctrine of estoppel which operates between landlord and tenant has no application to the same parties, even while the tenancy exists, when the question of title arises between them not in the relationship of landlord and tenant, but of vendor and purchaser. The present appeal came in the first instance before Somayya, J. and before him it was suggested that the judgment in Parvathi Ammal v. Mangilal Sowcar (L.P.A. No. 44 of 1944) had been given without taking into consideration the judgment of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh (37 All. 557 (P.C.). This was not so. When the judgment of their Lordships is understood, it will be seen that it does not in any way prohibit the application of the rule in Nesbit v. Mablethorpe Urban Council (1917) 2 K.B. 568) to cases in India, and when the judgment is read in conjunction with the later decision of the Judicial Committee in Krishnan Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd. (I.L.R. 1938 Cal. 1 [LQ/CalHC/1936/211] = 46 L.W. 201 (P.C.) this is even plainer.

In Bilas Kunwar v. Desraj Ranjit Singh (37 All. 557 (P.C.) the facts were these. A Hindu taluqdar had two wives and a Mohammedan mistress. He purchased a house in the name of his mistress and had the deed registered in her name but she was merely a benamidar from him. The taluqdar leaded the property to the defendant. After his death, his senior widow served upon the defendant a notice to quit and on his failure to comply with the demand she instituted a suit for his ejectment. The defendant pleaded that he had bought the property from the Mohammedan mistress and claimed title through her. As she had no interest whatsoever in the property, she conveyed no title to him. It was in these circumstances that the Board said that S. 116 of the Evidence Act was clearly in point and the defendant was not entitled to deny his landlords title. Their Lordships were not considering a case where the tenant had acquired a paramount title to the property after the commencement of the tenancy.

In Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd.( I.L.R. 1938 Cal. 1 [LQ/CalHC/1936/211] = 46 L.W. 201 (P.C.) the Privy Council in discussing the principle embodied in S. 116 said,

The principle does not 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. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end

In Parvati Ammal v. Mangilal Sowcar (L.P.A. No. 44 of 1944) the plaintiff purchased a house at a sale held in execution of a decree obtained against the owner, one Vinayaka Chetti. The third defendant obstructed him when he attempted to take possession and consequently the purchaser was compelled to bring a suit for possession. Vinayaka Chetti had granted an usufructuary mortgage to the first and second defendants and they leased the property to the third defendant, who sub-let a portion of it to the plaintiff. It was after the sublease that the plaintiff bought the property in Court auction. The usufructuary mortgage which Vinayaka Chetti had granted to the first and second defendants was a nominal and fraudulent transaction. Therefore they had no title to the property and the plaintiff became the owner of it as a result of his purchase at the Court sale. Notwithstanding this it was said that the plaintiff could not obtain possession because it meant denying the title of his lessor. This contention was rejected. The title which the plaintiff obtained was a complete one and was obtained after the lease. It was not a matter of denying the lessors title at the commencement of the sub-lease and consequently, S. 116 had no application. It was under these circumstances that Happell J. applied the rule in Nesbit v. Mablethorpe Urban Council (1917) 2 K.B. 568) which the Division Bench approved in an appeal from his judgment under the Letters Patent.

The facts in the present case are similar. The lease which the plaintiff together with the first defendant and another, took of the property now in suit, was before the plaintiffs purchase of the interest of Mohamed Ghouse and Mohamed Usman. The conveyances which their brother Mohamed Hussain executed in favour of Mahaboob Bivi in 1926 and 1928 did not operate to transfer the interests of Mohamed Ghouse and Mohamed Usman in the properties. It was of course open to them on attaining majority to affirm the transactions but this they refused to do, as is shown by the sale of their interests to the plaintiff on the 16th November 1939. By that sale, the plaintiff obtained an absolute interest in these properties to the extent of two-thirds and his title was paramount to that of his lessor, who had in fact no title at all. He was not questioning the right of Mahaboob Bivi to grant him a lease. That he could not do because of S. 116. But when he became the absolute owner of two-thirds of the property, he was no longer in the position of a lessee but of an owner and he was entitled to enforce his rights. Consequently this case also falls within the principle stated in Nesbit v. Mablethorpe Urban Council (37 All. 557 (P.C.). For these reasons we hold that the Courts below erred in applying the rule of estoppel against the plaintiff.

The Subordinate Judge was clearly right in holding that the claim in respect of item No. 1 was barred. That property was conveyed to Mahaboob Bivi on the 20th September 1926 and the suit was not filed until the 14th December 1939, more than twelve years after Mahaboob Bivi went into possession. The Subordinate Judge was also right in holding that the suit was not barred as regards item No. 2 because the suit was filed within twelve years of the conveyance to Mahaboob Bivi of this property.

The result is that the plaintiff is entitled to a decree for partition of item No. 2 and the case will be remanded to the trial Court to dispose of the other issues and to effect a partition in accordance with this judgment. The appellant is entitled to costs here and below, on the value of his share of item No.

2. He must pay costs in respect of item No. 1 throughout.