Sharma, J. - (1.) THESE are two appeals; one by Yashoda plaintiff and the other by Amarnath defendant in a suit for ejectment and arrears of rent brought by Bala Prasad deceased husband of Mst. Yasoda against Laxmichand, the deceased father of Amarnath. For the sake of convenience, hereinafter, in this judgment Amarnath would be referred to as the defendant and Mst. Yasoda as the plaintiff and Bala Prasad would be referred to as the deceased p;aintiff and Laxmichand as the deceased defendant.
(2.) THE plaintiff's case is that the deceased defendant had executed a lease in respect of four propertied described by the plaintiff as properties PA, PB, PC and PD in the plan attached to the plaint and shown therein in red colour in favour of the deceased plaintiff with a rent of Rs. 40/- P. M. This property is situated in the town of Alwar. THEre was a stipulation in the lease that if the leassee did not pay rent for two months, the lessor would be entitled to have the properties vacated. It was stipulated that the lessor cold have the properties vacted also after one month's notice. It was also stipulated that interest would be charged at the rate of 12% P. A. on arrears of rent. THE plaintiff alleged that the deceased defendant had not paid rent for two months and, therefore, he was calle upon to vacte the property. A suit was, thererore, brought for ejectment and arrears of rent for 19-1/2 months at the rate of Rs. 40/- P. M. amounting to Rs. 780/- with interest and cost of notice. THE total claim was thus laid for the recovery of Rs. 800/ -. It was alleged that defendants Nos. 2 to 9 were the sub-tenants of the property in suit on behalf of defandant No. 1 the lessee. A prayer was, therefore, made for the ejectment of all the defendants and for the recovery of Rs. 850/- against the deceased defendant No. 1. Written statements were filed by all the defendants denying the plaintiff's title to the property in suit. It was alleged by defendant Nos. 2 to 9 that they were not the sub-tenants of the deceased defendant, but the sub-tenants of Laxminarain, father of the deceased defendant. It was pleaded by them that the plaintiff was not the owner of the property which was occupied by them. On behalf of the deceased defendant it was admitted that the lease-deed relied upon by the plaintiff way executed by him, but) he pleaded that it was not a genuine document but a fictitious one and was executed in collusion with the deceased plaintiff for saying the property from transfer by Laxminarain who was the real owner of the property. It was further pleaded that the deceased defendant had fallen out with his father Laxminarain and had been to the deceased plaintiff who was a lawyer for consultation and taking advantage of this circumstance, the deceased plaintiff got the lease in suit fictitiously executed and also obtained certain other documents fictitiously transferring the property in suit from the deceased defendant. It was pleaded that property PC was the property of Mst. Sampati and the remaining property belonged to Laxminarain and all the documents including the lease-deed in suit were got executed by the deceased plaintiff without the knowledge of Laxminarain and Mst Sampati. It was also pleaded that no possession was delivered by the deceased plaintiff in pursuance of the lease to the deceased defendant. It was finally pleaded that the suit in any case was not maintainable because no notice as stipulated by the lease-deed was given. The suit was brought on 16th of March, 1942 in the court of the Munsif Alwar. Although written statements were filed by the defendants as shown above the suit was finally contested by the deceased defendant Laxmi-chand alone. The learned Munsif framed several issues and ultimately decreed the suit with respect of properties PA,pb and PC only and dismissed it so far as it related to property PD. On appeal by the defendant No, 1 and cross-objection by the plaintiff, the learned District Judge of Alwar allowed the appeal and set aside the decree of the first court by his judgment dated the 9th of April, 1945, and remanded the case to the first court for decision after framing four additional issues. An appeal was presented to the then High Court of Alwar which was treated as revision and was dismissed on the 21st of July, 1945. After remand, the learned Munsif, Alwar, decreed the suit only with respect to property PB and dismissed it with respect to the remaining three. An appeal was taken to the court of the District Judge, Alwar and the learned Additional District Judge, who heard it dismissed it and confirmed the decree of the first court. The original plaintiff and the original defendant No. 1 having died the name of Mst. Yasoda the widow of the original plaintiff was substituted in his place and the name of Amarnath son of the deceased defendant Laxmichand was substituted in place of Laxmichand. Appeal No. 309 of 1949 has been filed by Mst. Yasoda and appeal No. 319 of 1949 by Amarnath against the appellate judgment and decree of the learned Additional District Judge, Alwar. Both these appeals are being disposed of by this single judgment. I have heard Mr. Uma Datt on behalf of the plaintiff and Mr. J. P. Jain on behalf of the defendant. Mr. Uma Datt has pressed only one point with great vigour and it is that the execution of the lease having been admitted by the deceased defendant, it was not open to the defendants to say that the property in suit did not belong to the plaintiff. It was argued that such a defence was barred under sec. 116 of the Indian Evidence Act. Learned counsel for the plaintiff relied in support of his argument on the rulings in the cases of Kumar Krishna Prasad Lal Stngha Deo vs. Baraboni Coal Concern, Ltd. , (1), Badruddin Khan vs. Bhagloo Koeri (2) and Shankar Rana Patil vs. Jagannath Mathura Lal Bhat (3 ). These rulings were produced in reply to the view of the lower courts that because the deceased defendant did not get possession of the properties PA, PC and PD in pursuance of the lease it was open to him to question the title of the deceased plaintiff in these properties. It was also faintly argued that a decree had been obtained by the deceased plaintiff against the deceased defendant for recovery of certain money on a bond which had been executed in respect of arrears of rent of these very properties under the lease in suit. This argument was,however,not very seriously pressed and ultimately,the learned counsel for the plaintiff conceded that this objection had no force. On behalf of the defendant, it was argued that Laxminarain the father of deceased defendant was in possession of the proprties PA and PD when the lease in dispute was executed and he never gave up his possession. The defendants Nos 2 to 9 who were the subtenants of Laxminarain were also in possession of part of these properties since before the suit. The deceased defendant could, therefore, question the title of the plaintiff to the properties PA and PD. As regards property PC, it was argued that that property belonged to Mst. Sampati and was in her possession at the time the lease-deed was executed. She never gave up her possession and that property like the properties PA and PD never passed into the possession of the deceased defendant in pursuance of the lease. He could therefore, raise the question about the title of the plaintiff to that property also. Learned counsel referred to the rulings realized upon by the learned counsel for the plaintiff in order to show that they also support the view that if possession does not pass to the lessee in pursuance of the lease, he is entitled to question the title of the lessor at the time of the execution of the lease. It was argued by the learned counsel that it was fully proved by the evidence on the record that properties PA, PC and PD did not belong to the plaintiff nor did they belong to the deceased defendant before the alleged transfer in favour of the deceased plaintiff. The property PA devolved on Laxminarain after the death of his elder brother Chunilal and the property PD was ancestral property in his hand. The property PC was the property of Mst. Sampati and ever remained her property and never passed to the plaintiff. In connection with appeal filed by the defendant it was argued on his behalf that the suit was bad for the recovery of property PB also for want of notice and it was urged that the plea of want of notice applied to the cases of properties PA, PC and PD also. Ave considered the arguments of both the learned counsel. Both the lower courts hAve found as a fact that the properties P-A, PC and PD did not belong to the plaintiffs and that the property PA originally belonged to Chunilal after whose death it devolved on Laxminarain the father of the deceased defendant. The property PD was ancestral property in the hands of Laxminarain and property PC was the property of Mst. Sampati and title to it never passed to the plaintiff. It has also been found by them that the possession of these properties never came to the deceased defendant under the lease in suit. There is sufficient evidence on the record to justify this finding of fact of both the lower courts. So far as the property PA is concerned, the case of the plaintiff himself was that it was the property of Chunilal, but devolved on the deceased defendant after the death of Chunilal because the deceased defendant was the adopted son of Chunilal. As regards property PC too, his case was that it belonged to Mst. Sampati but it was pleaded that it had come to the plaintiff under a deed of mortgage. This deed of mortgage was unregistered and it was not satisfactorily proved that the possession of this property passed from Mst. Sampati to the deceased plaintiff. The lower courts were, therefore, perfectly justified in holding that title and possession of the said properties never passed to the plaintiff. So far as the property PD is concerned, it has been rightly held that it was ancestral property in the hands of Laxminarain and it has not been shown how the deceased defendant was entitled to execute a deed of transfer in respect of the said property in the life time of his father Laxminarain. Apart from the fact that the deceased defendant has described himself as the adopted son of Chunilal in the lease in dispute Ex. P-l a mortgage-deed dated the 27th November, 1937 Ex. P-l 1 in favour of the deceased plaintiff, a mortgage-deed dated the 15th January 1949 Ex P-3, a bond dated the 15th January, 1949 Ex. P-2 and a bond daied the 16th January, 1939 Ex. P-26 all in favour of the deceased plaintiff There is no evidence to show that the deceased defendant was the adopted son of Chunilal. There are certain documents in which the deceased plaintiff had not described himself as the son of Laxmi Narain without being described as an adopted son of Chunilal. They are rent-notes dated the 1st of April, 1938 in favour of the deceased plaintiff himself Ex. PF and a sale-certificate dated the 6th of September, 1937 Ex P-18. The oral evidence produced on behalf of the defendant also proves that he was never adopted by Chunilal. It is in evidence that the deceased defendant was born a few years after the death of Chunilal. There is no direct evidence on behalf of the plaintiff to prove that the deceased defendant was adopted either by Chunilal or by his widow, if any, with the authority of Chunilal. It was argued by the learned counsel for the plaintiff that the plaintiff could not produce this evidence because no issue was framed on the point of adoption of Laxmichand by Chunilal. So-far as the property PA is concerned, it could devolve upon the deceased defendant only if the plaintiff could assert and prove that the deceased defendant had been adopted by Chunilal. He did neither and simply contented himself with the recitals in the lease-deed and other documents mentioned. above. When evidence was produced on behalf of the defendant to prove that he was never adopted by Chunilal, no objection was raised by the plaintiff to that evidence. Even after that evidence was concluded, he did not pray to court that he might be allowed to produce evidence to show that the deceased defendant was the adopted son of Chunilal. It cannot be said that the plaintiff was taken unawares. From the evidence in the case, it is a quite clear that both the parties knew that the title of the plaintiff to property PA depended upon the deceased defendant being proved to be the adopted son of Chunilal. It cannot, therefore, be said that the plaintiff was prejudiced by the non-framing of any specific issue on the point of adoption. To my mind both the lower courts were perfectly justified in holding that none of the properties PA, PC and PD belonged to the plaintiff and he had no title to it. The only question which remains to be seen is whether the deceased defendant or for the matter of that the present defendants, were entitled to raise the plea that the plaintiff had no title to the properties PA, PC and PD. It is true that under sec. 116 of the Indian Evidence Act, a tenant of immoveable property, or person claiming through him cannot 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 immoveable property. The words 'during the continuance of the tenancy' are very important. It is not enough that only a lease deed should be executed covering a certain property, but possession of the property under the lease should also be given to the tenant in pursuance of the lease. If any lease deed is executed, but no possession is given of the property thereunder, the lessee would be perfectly entiled to question the title of the lessor at the time of making of the lease. A person may execute a lease covering several properties which did not belong to the lessor stipulating to pay a large sum as rent but this paper transaction would not debar him from questioning the title of the lessor unless possession is also delivered of all the properties to the lessee under the lease. It is the possession under the lease which creates estoppel against the tenant and not the execution of the lease alone. The recitals in the lease amount only to an admission of the executant and he has got a perfect right to prove that they are not correct unless possession is given there under. A mere admission of the sort would not be a conclusive proof of tenancy against the executant and he would not be estopped from denying the title of the lessor. Of course where the lease property belonged to the lessee and he transfers it to the lessor and thereafter gets a lease of that property from the transferee the nature of possession of the lessee changes and his previous possession would not entitle him to question the title of the lessor. Similarly where a lessee in possession of the lease property attorns to a transferee from the original lessor he cannot question the title of the transferee as by attorning to him he holds possession under the transferee. But where the lease property is in possession of a third person who continues possession even after the lease and the possession of the said property is not transferred to the lessor in pursuance of the lease, the lessee has got a right to question the title of the lessor in respect of that property. The ruling of their Lordships of the Privy Council in the case of Kumar Krishna Prasad Lal Singh Deo, does not apply to the facts of the present case. In that case it was decided that when a person already in possession of land becomes tenant to another, there is an estoppel against his denying his lessor's title. I hAve myself said above that in case an owner of the property is in possession of that property when he makes a transfer of it in favour of another and thereafter gets the lease from the transferee and continues in possession, bar of estoppel under sec. 116 of the Indian Evidence Act will apply against him. But when the lessee himself is not in possession of the pro- perty when the leaser-deed was executed and some third person is in possession of that property and after the execution of that lease deed also he does not get possession of that property under the leases the bar of sec. 116 would not apply. In the Privy Council case just mentioned their Lordships hAve said in column 2 at page 255 that "when a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor's title and the benefit of his covenants, ft is difficult to see why "during the continuance of the tenancy. " he should be free of this from of estoppel. " Then according to their Lordships of the Privy Council, bar of estoppel is available to the lessor when the tenant has proceeded to occupy and enjoy under the grant and gets shelter of the grantor's title and the benefit of his cov-nants. In the present case, the deceased defendant never proceeded to occupy and enjoy under the grant, nor did he get shelter of the grantor's title and the benefit of his covenants as the property remained in possession of Laxminarain and Mst. Sampati who were the ' real owners. Under these circumstances, no advantage can be derived by the plaintiff from the above mentioned ruling of their Lordships of the Privy Council. In the Patna case of Badruddin Khan vs. Bhagloo Koeri (2)also the defendant appears to hAve entered into possession of the leased property in the time of the previous owner, and to hAve attorned to the subsequent owner after reversion of the property to him (subsequent owner ). Thus after attornment the possession of the defendant amounted to possession under the subsequent owner. The Patna case, therefore, is not a case in which the possession could not be deemed to be under the lease and is therefore distinguishable from the present case. In the Bombay case of Shankar Rana Patil vs. Jagannath Mathura Lal Bhat (3) referred to above, the facts are not given. It appears that defendant's father had entered into possession of the property under the lease and after his death the defendant held possession as legal representative of his father. It was rightly held that the defendant was estopped from questioning the plaintiffs title though he himself was not put into possession by the landlord. In that case too the property did not remain in possession of a third party even after the lease and the lessee did not remain out of possession. Sec. 116 can to my mind apply only when a lessee has got possession of the property under his lease or being already in possession of the property has attorned to the owner. I may also say that although lease-deed was got excuted from the deceased defendant by the deceased plaintiff yet the transaction so far as it relates to properties PA, PC and PD appears to be altogether colourable and both the lower courts were perfectly justified in holding that the deceased defendant could question the title of the plaintiff so far as the three properties PA, PC and PD are concerned. It has been proved by the evidence of the defendant that he was not on good terms with his father and that he approached the deceased plaintiff with a view to sAve the property of his father from being transferred by his father. The deceased plaintiff who was a lawyer took advantage of this mentality of the deceased defendant and got various deeds of transfer executed of the property which did not belong to the deceased defendant and among such property are the properties PA, PC and PD which were got inserted in the lease. A previous document in favour of the deceased plaintiff himself was executed with the deceased defendant's father's name as Laxminarain and in it he was not described as an adopted son of Chuniial,yet in the lease deed the deceased described as the adopted son of Chunilal. I am perfectly satisfied that it was the master brain of Bala Prasad which suggested that the deceased defendant should be described as an adopted son of Chunilal, because otherwise in the presence of Laxminarain, the deceased defendant could not hAve any title to Chunilal's property. I am perfectly satisfied with the evidence of the deceased defendant before the court. Although such serious allegations were made by the deceased defendant against the deceased plaintiff in his state-ment before the court, yet the deceased plaintiff had not the courage to contradict these allegations. I am therefore of the view that the lease-deed in dispute was not a genuine transaction so far as three properties PA, PC and PD are concerned and those properties hAve been simply fictitiously entered into it in order the grab the property of Mst. Sampati and Laxminarain. The deceased plaintiff was a party to this fraud. He cannot be given any relief by a court of law.
(3.) IT was argued by the learned counsel for the plaintiff that at least after the death of Laxminarain during the suit, the deceased defendant became entitled to the property and by virtue of sec. ,43 of the Transfer of Property Act the transfer to the deceased plaintiff became operative. I do not think that sec. 43 applies to the facts of the present case because it has not been shown that it was not known to the deceased plaintiff that Laxmichand was not the adopted son of Chunilal and that he bonafide believed the statement made in the various documents including the lease about the adoption of the deceased defendant by Chunilal. IT is clear that a document was executed in favour of the deceased defendant in which the latter described himself only as a son of Laxminarain and not as adopted son of Chunilal. Moreover, it is in evidence that the deceased plaintiff was the Vakil of the deceased defendant's family. At any rate, a lawyer being aware that it was for the first time that the deceased defendant was described as an adopted son of Chunilal in a document in his own favour, he must have been put on an inquiry as to whether the allegation about the adoption by Chunilal in that document was correct. He could have referred to the previous deed in his favour where the deceased defendant was not described as an adopted son of Chunilal. Being a lawyer he must have been aware that heavy burden rests upon him who alleges himself to be an adopted son and if he were entering into a transaction bonafide,be ought to have asked the deceased defendant to bring forward satisfactory evidence to show that he was the adopted son of Chunilal. The transaction, however, in which the deceased plaintiff was entering, was only a colourable one, so for as properties PA, PC and PD are concerned, and, therefore, he did not worry about asking for satisfactory evidence of the adoption of the deceased defendant by Chunilal. I am not satisfied that the deceased plaintiff was misled by any fraudulent or erroneous representation of the deceased defendant. It was argued that at least at the time of the. suit, the deceased defendant was in possession of the property in suit and, therefore, bar of estoppel under sec. 116 of the Indian Evidence Act applied against him. After the death of Laxminarain not only the deceased defendant, but his sons also by their right by birth had possession of the property in dispute. The possession of the deceased defendant if at all, after the death of his father, was not possession by virtue of the lease but by virtue of his being the son of his father. The bar of sec. 116 cannot, therefore be applied against him on this account. There are other defendants also in this case who had been holding the property in dispute since before the lease in dispute under leases from Laxminarain. The plaintiff, therefore, cannot in any case obtain a decree against the present defendant for dispossession of the properties PA, PC and PD. Coming to the appeal filed by the defendant, I may say atonce that it was not seriously pressed. The property PB was the self acquired property of the deceased defendant and his son had no right in it by birth. The deceased defendant could sell away his property and after the sale, execute a deed of lease in respect thereof in favour of the transferee. So far as that property is concerned neither the deceased defendant nor his son who claims through him so far as that property is concerned, can question the title of the plaintiff. It was argued by the learned counsel for the defendant that the suit in respect of that property was also bad at least for want of proper notice. It is stipulated in the lease-deed that if rent is not paid for two months, the lessor would be entitled to vacate the lessee. The rent for over two months was admittedly not paid and therefore, the lessor had a right to bring a suit for ejectment against the lessee. It was argued that on the ground of non-payment of rent forfeiture could arise under sec. III of the Transfer of Property Act only after notice. But Transfer of Property Act did not apply to Alwar State at the time the suit was brought. Therefore, no notice of forfeiture was necessary as requited be sec. 111 of the Transfer of Property Act and under the terms of the lease, the suit could be brought if rent was not paid for two months. There is, therefore, no reason to interfere with the decree of the lower courts so far as the property PB is concerned. Both the appeals are dismissed. The successful respondents of each appeal shall get costs of that appeal from the unsuccessful appellant. ;