CHAITANYA CHANDRA SAHA v. PARIMAL CHANDRA DUTTA — 1979 DIGILAW 188 (CAL)

A. K. SEN, J. ( 1 ) THIS appeal from an appellate decree is at the instance of the plaintiff in a suit for declaration and permanent injunction which has been concurrently dismissed by the two courts below. It would be necessary to refer to certain facts lying in the background in order to appreciate and decide the real dispute between the parties and such facts are set out hereunder. ( 2 ) DHIRESH Chand Ghosh, since deceased, was admittedly the owner of premises No. 8d, Mohanlal Street (hereinafter referred to as the suit premises) and the plaintiff/appellant was a tenant under the said owner in respect of the suit premises. On July 28, 1953, the said Dhiresh Chand Ghosh executed a will wherein he appointed his two sons Amarendra Nath Ghosh and Salil Kumar alias Salil Chandra Ghosh, defendants 3 and 4 (hereinafter referred to as such) to be the executors and trustees under the said will. In paragraph 5 of the said will, the said Dhiren Chand Ghosh made the following bequest:"i give, device and bequeath the premises No. 8d, Mohanlal Street to my executors and trustees to hold the same upon trust following: - a) Upon trust to allow my son Santosh Kumar Ghose to reside therein or pay to him, the net rent and profits thereof or to allow him to live in part thereof and pay to him net rents and profits of the remainder thereof during the term of his natural life. b) After the death of my son Santosh Kumar Ghosh, to make over the said premises absolutely to the son or sons of my said son Santosh Kumar Ghosh and if more than one in equal shares. ( 3 ) DHIRESH died an year after on July 29, 1954. On September 12, 1955, the two executors defendants 3 and 4 took out probate from the original side of this High Court and a week prior thereto that is, on September 6, 1955, the executors addressed the following letter to the plaintiff, the tenant in respect of the suit premises:"dear Sir, re : 8d, Mohanlal Street. Probate has been granted to us by the Hon'ble High Court at Calcutta as the executors to the will of late Shri Dhiresh Chand Ghosh. The above property has been given by the said will of Mr. Dhiresh Chand Ghosh to Sri Santosh Ghosh. Probate has been granted to us by the Hon'ble High Court at Calcutta as the executors to the will of late Shri Dhiresh Chand Ghosh. The above property has been given by the said will of Mr. Dhiresh Chand Ghosh to Sri Santosh Ghosh. We as the executors have assented to the said bequest and have made over the said property to Shri Santosh Kumar Ghosh. Please attorn and pay rent to the said Shri Santosh Kumar Ghosh from the month of August 1955. Rent upto July has been paid by you. Yours faithfully, amarendra Nath Ghosh salil Chandra Ghosh executors to the estate of Dhiresh Chand ghosh by virtue of the probate of the said will granted by the Hon'ble High court at Calcutta. "since them, Santosh Kumar Ghosh, defendant No. 2 (hereinafter referred to as such) continued to realize rent from the plaintiff on his own account. ( 4 ) ON March 10, 1965, the executors defendants 3 and 4 filed an application in the testamentary and intestate jurisdiction of this court seeking court's permission to sell the suit premises for a sum of Rs. 43,000/- and reinvest the said amount in purchasing some other house fetching an income not less than Rs. 250/- per month. Such permission was sought for on the ground that on the rent realized from the plaintiff the net monthly income from the suit premises is only Rs. 63/- whereas if a sum of Rs. 40,000/- out of the sale proceeds be invested in fixed deposit that would yield a net monthly income of Rs. 166/ -. It was, therefore, indicated that holding the suit premises was uneconomical so that it may be sold and invested in purchasing a new house which m ay be held otherwise in terms of the directions in the will. Defendant No. 2 Santosh Kumar Ghosh consented to the grant of the permission so sought for and this court as the court which had granted the probate accorded the necessary permission to sell. The suit premises was thereupon sold in favour of defendant No. 1, Parimal Dutta (hereinafter referred to as the defendant No. 1) for a consideration of Rs. 43,000/- paid by him and the sale deed was executed by the executors on September 28, 1965, and Santosh Kumar Ghosh became a confirming party thereto. The suit premises was thereupon sold in favour of defendant No. 1, Parimal Dutta (hereinafter referred to as the defendant No. 1) for a consideration of Rs. 43,000/- paid by him and the sale deed was executed by the executors on September 28, 1965, and Santosh Kumar Ghosh became a confirming party thereto. Both the executors and Santosh served notice on the plaintiff calling upon him to attorn in favour of the purchaser defendant No. 1 and the purchaser served a notice demanding rent from the date of his purchase. The plaintiff paid the rent to the defendant No. 1 so demanded for the few days of September 1965 and for the months of October, November and December 1965. Defendant No. 1 it appears thereafter served a notice to quit and stopped realizing rents and he instituted a suit for eviction as against the plaintiff on March 2, 1966. ( 5 ) IT is in this background that the plaintiff instituted the suit out of which the present appeal arises as against the purchaser defendant No. 1, Santosh Kumar Ghosh defendant No. 2 and the two executors defendants 3 and 4. In the plaint it was alleged that the plaintiff had been a monthly tenant since March 1953 and that defendant No. 2 became his landlord after the death of the original owner. It was further claimed that defendant No. 2 from time to time took various amounts from the plaintiff by way of loan and ultimately there was an agreement between the plaintiff and the defendant No. 2 that a part of the rent payable would be adjusted month by month toward the satisfaction of the loan, but later when the defendant No. 2 denied his liability for these loans, the plaintiff had to institute a suit for realization of a sum of Rs. 2,877. 72 and obtained an attachment of the suit premises in that suit. At this stage it was claimed that the defendants 1 and 2 in collusion with the executors got a fictitious conveyance executed in favour of defendant No. 1 on September 28, 1965. The recitals made in that deed are all untrue, purposive and fraudulent, that the executors had no right or authority to transfer the suit premises to defendant No. 1 and that they exceeded their authority in executing the conveyance. The recitals made in that deed are all untrue, purposive and fraudulent, that the executors had no right or authority to transfer the suit premises to defendant No. 1 and that they exceeded their authority in executing the conveyance. It was further pleaded that by the will there was a specific legacy in favour of defendant No. 2 and the executors having assented to the said legacy defendant No. 2 acquired absolute right to the suit premises and that the executors could not longer transfer the same. Defendant No. 1 acquired no title to the suit premises by the purchase, and as such, cannot realize rent and that the defendant No. 2 should be deemed to be the owner, and as such, the landlord of the plaintiff. On this pleading, the plaintiff prayed for a decree for declaration that defendant No. 1 has acquired no title to the suit premises and has no right to realize monthly rent from the plaintiff and for a further declaration that the defendant No. 2 is still the landlord of that property. The plaintiff further prayed for injunction restraining the defendant No. 1 from realization any rent in respect of the suit premises from the plaintiff. ( 6 ) DEFENDANTS 1 and 2 filed separate written statements. Defendant No. 1 denied all the material allegations made in the plaint and asserted that he was a bonafide purchaser from the executors and by such purchase he acquired valid and lawful title to the suit premises. It was further pleaded that the tenant, i. e. the plaintiff having duly attorned in his favour and having paid rent to him was estopped from further challenging his title to the suit premises acquired by virtue of his purchase. It was also claimed that the suit as framed is not maintainable. Defendant No. 2 in his written statement well supported the transfer in favour of defendant No. 1 and he further denied all allegations regarding his taking loans from the plaintiff. ( 7 ) PARTIES adduced evidence both oral and documentary. It was also claimed that the suit as framed is not maintainable. Defendant No. 2 in his written statement well supported the transfer in favour of defendant No. 1 and he further denied all allegations regarding his taking loans from the plaintiff. ( 7 ) PARTIES adduced evidence both oral and documentary. The learned Munsif dismissed the suit on two fold grounds, namely, (i) that the suit as framed being an inter-pleader suit as against the landlord is barred by the provision of Order 35 Rule 5 of the Code of Civil Procedure and (ii) because the plaintiff as a tenant cannot dispute the transfer made by the executors along with his admitted landlord defendant No. 2 in faovur of defendant No. 1. The learned Munsif was of the view that a dispute as to whether the defendant No. 2 is an absolute owner or not, and as such, is entitled to transfer the suit premises or not could only be raised by the reversioners and not by a person holding the status of a tenant. He further observed that the plaintiff as a tenant cannot sustain the suit for declaration in view of the provision of section 34 of the Specific Relief Act. ( 8 ) THE plaintiff preferred an appeal and the learned Additional District Judge affirmed the decision of the learned Munsif and dismissed the appeal. The learned Additional District Judge interpreted the relevant clause in the will to hold that defendants 3 and 4 were under the will to hold the suit premises both as executors and trustees during the life-time of defendant No. 2 and administer the same as executors. According to the learned Judge, it was not such a bequest where the executors could have completed the administration of the estate during the life-time of defendant No. 2 and could merely claim to hold the property as trustees simpliciter. Therefore, according to the learned judge there was no scope for giving any assent to any legacy in favour of defendant No. 2 and thereby divest themselves of all interests as executors. For the very same reason, the learned judge held further that it cannot be said that the probate court could not have granted the permission to sell. Hence, there was a valid disposition of the property by the executors in faovur of defendant No. 1 who acquired valid title thereto. For the very same reason, the learned judge held further that it cannot be said that the probate court could not have granted the permission to sell. Hence, there was a valid disposition of the property by the executors in faovur of defendant No. 1 who acquired valid title thereto. So far as the letter that was issued by the executors in favour of the plaintiff according assent to the legacy of defendant No. 2 is concerned, it was found by the learned judge that the same was based upon a misapprehension and in law the same was of no consequence. On the question of estoppel, the learned judge held that when the defendant No. 2 is a confirming party and when the said defendant himself has asked the plaintiff to attorn in favour of defendant No. 1 and has not set up any adverse claim, even if there be no estoppel under section 116 of the Evidence Act, yet the plaintiff is estopped from challenging the title of defendant No. 1 because the admitted facts go conclusively to show acknowledgement of the relationship between the parties as landlord and tenant. The learned judge in the court of appeal below also took the view that the suit as framed is not maintainable in view of the provision of Order 35 Rule 5 of the Code of Civil Procedure because according t o him in the suit the plaintiff has virtually made the defendants 1 and 2 to inter-plead as between them. ( 9 ) FEELING aggrieved, the plaintiff has preferred the present second appeal to this court. Mr. Gupta appearing in support of this appeal has first contended that the court of appeal below has misconstrued the will in holding that by the material clause there had been no bequest in favour of the trustees simpliciter to hold the suit premises in trust for the purposes set out in that clause. According to him, on a proper construction of the will as a whole it should be held that the testator made a bequest in respect of the suit premises in favours of the trustees who may in the present case be none else than executors themselves to be held by them qua trustees for fulfilling the objects specified in the material clause. According to Mr. According to Mr. Gupta, such being the bequest and the executors having given their consent thereto, it should be held that the executors were divested of all interests therein and they came to hold the property qua trustees on and from the date of such assent. Therefore, according to Mr. Gupta the executors could no longer validly obtain any permission from the probate court for sale of such a property nor could they validly sell the property as executors as done in the present case. Incidentally it was contended by Mr. Gupta that the disputed sale in favour of defendant No. 1 cannot be construed to be a sale by defendants 3 and 4 as trustees because the sale was not effected as such nor could the trustees in law have any authority to sell. Reliance is placed by Mr. Gupta on section 36 of the Trust Act. The second point raised by Mr. Gupta is that the two courts erred in law in thinking that in the facts and circumstances of the present case the plaintiff is estopped from disputing the title of the purchaser landlord, namely, defendant No. 1. According to Mr. Gupta, section 116 of the Evidence Act does not stand in the way because what is being challenged is the derivative title of the purchaser. So far as the attornment in favour of the purchaser by payment of rent is concerned, it has been contended by Mr. Gupta that there was no real attornment because such payment was made on a specific assertion that the payment is being made without prejudice. In any event, according to Mr. Gupta such payment having been made on ignorance of material facts which conclusively show that the purchaser could not have acquired any title by the purchase, such payment of the part of the plaintiff cannot estop him from disputing the title as and when the true facts came to his knowledge. Thirdly, it has been contended by Mr. Gupta that the two courts below wholly misread the plaint and the provision of Order 35 Rule 5 of the Code of Civil Procedure in holding that the suit as framed is barred in view of the said provision. ( 10 ) MR. Dutt appearing on behalf of defendant No. 1 has contested the points raised by Mr. Gupta. According to Mr. ( 10 ) MR. Dutt appearing on behalf of defendant No. 1 has contested the points raised by Mr. Gupta. According to Mr. Dutt, the court of appeal below correctly interpreted the material clause in the will in holding that there was no bequest in respect of the suit premises in faovur of trustees simpliciter. According to Mr. Dutt, the executors by their very nature being trustees were described as such in the will. According to Mr. Dutt, by paragraph 5, the testator intended and provided that the executors would hold the suit premises as executors during the life-time of defendant No. 2. They would merely provide residence and the rents realized from the suit premises to defendant No. 2 during his life-time and the bequest would open only after his death in favour of the reversioner as prescribed in the said clause. It is also contended by Mr. Dutt that even assuming that there was a bequest in favour of the executors qua trustees, in the facts and circumstances there was no assent to any such bequest and the letter of the executors written to the plaintiff so strongly relied upon by Mr. Gupta cannot be construed to mean that thereby the executors assented to the bequest in their own favour as trustees. Incidentally, Mr. Dutt has contended that defendant No. 1 is a purchaser for value from the executors on the basis of an order granting permission for such a sale by the court which had granted the probate, and as such a purchaser the defendant No. 1 is well protected and the title acquired by him by such purchase cannot be disputed in the manner proposed in the present suit. On the point of estopped, it has been contended by Mr. Dutt that it is not correct to suggest that such a principle could have no application in the facts and circumstances of the present case. According to Mr. Dutt, the plaintiff attorned in favour of the purchaser defendant No. 1 and did payment to him for months and did not dispute his title until he was served with a notice to quit and was sued for eviction. Mr. Dutt strongly disputes the suggestion that payment of rent was made on ignorance of any material fact. In such cases, according to Mr. Mr. Dutt strongly disputes the suggestion that payment of rent was made on ignorance of any material fact. In such cases, according to Mr. Dutt, the plaintiff would be estoped from disputing the title of the defendant No. 1 because the law provides that a tenant in such a case is not allowed to impeach the title of a person to whom he has paid rent without showing a better title in some other person and that the plaintiff had failed to show in the present case. Mr. Dutt in his fairness has not disputed the claim of Mr. Gupta that the transfer impugned in the present case is not one by the defendants 3 and 4 as trustees. On the point of maintainability it has been contended by Mr. Dutt that when the courts below had construed the suit to be one of the nature of inter-pleader they were right in taking the view that such a suit is barred in view of the provision of Order 35 Rule 5 of the Code. ( 11 ) BEFORE I proceed to consider the other points canvassed before me it would be necessary to consider the point of maintainability because the two courts have concurrently held the suit as framed to be not maintainable in view of the provision of Order 35 rule 5 of the Code. Order 35 Rule 5 provides:"nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to inter-plead with any persons other than the persons making claim through such principals or landlords. "this provision clearly imposes a bar on a tenant to sue his landlord for compelling him to inter-plead with any persons other than a person making claim through him. There is an obvious exception to the effect that the tenant can sue his landlord causing him to inter-plead with a person claiming title from the landlord himself. The bar under this provision is hardly attracted to the present case for two reasons. First of all in order to attract Order 35 Rule 5, the suit must be one of the nature as described in section 88 of the Code, namely, must be an interpleader suit. An interpleader suit is one in which the real dispute is between the defendants only and the plaintiff claims to interest therein. First of all in order to attract Order 35 Rule 5, the suit must be one of the nature as described in section 88 of the Code, namely, must be an interpleader suit. An interpleader suit is one in which the real dispute is between the defendants only and the plaintiff claims to interest therein. The present suit is not of that character at all. Here, there is no dispute between the defendants even on the allegations made in the plaint. The defendants themselves are agreed on the point that defendant No. 1 became the plaintiff's landlord by the purchase, the validity whereof is being challenged only by the plaintiff. It is the plaintiff who asserts that his interest has been affected by such an invalid and illegal sale in favour of defendant No. 1. He himself claims the relief by way of declaration and injunction in his own favour and does not leave the dispute to be fought out as between the defendants. Secondly as pointed out earlier. Order 35 Rule 5 does not bar all interpleader suits as against the landlord. It bars such a suit when the claim adverse to the landlord is put forward by a person not claiming through the landlord himself, that is, when such an adverse claim is put forward on a title independent of the landlord. A tenant is not permitted to do so obviously because section 116 of the Evidence Act prevents him from denying the title of his landlord at the inception of the tenancy. But the said section does not prevent the tenant to dispute the derivative title and, therefore, Order 35 Rule 5 does not bar an interpleader suit as against the landlord and one who claims title through such landlord if the claim as between them is disputed. Here, in the present case defendant No. 1 has derived title by purchase from the other defendants, therefore, if really there be any claim in dispute between defendant No. 1 on the one hand and the other defendants on the other Order 35 Rule 5 of the code would not stand in the way of plaintiff instituting a suit leaving them to interplead as between them. Therefore, the bar under Order 35 Rule 5 cannot be attracted in this case in any view and the two courts below wholly misread the legal position in holding that the suit as instituted is not maintainable in view of the said provision. ( 12 ) NEXT I proceed to consider the other points raised by Mr. Gupta In doing so, I shall first presume that the plaintiff is not estopped from disputing the title of the defendant No. 1, such a title being derived from the admitted original landlord. On that assumption I shall first consider whether defendant No. 1 acquired any valid title to the suit premises by his purchase from defendants 3 and 4. Incidentally, I shall also consider the further contention of Mr. Dutt to the effect that defendant No. 1 having purchased the suit premises for consideration from the executors on a specific permission from the probate court and there being no case that such permission was ever obtained on any fraud to which defendant No. 1 was a party, defendant No. 1's purchase is protected under the law and his title by such purchaser cannot now be disputed by disputing the validity of the sale in his favour. ( 13 ) MR. Gupta has disputed the title of the defendant No. 1 by disputing the validity of the sale by the executors in his favour. According to Mr. Gupta the material bequest in respect of the suit premises is a bequest on trust where the executors themselves are the trustees. Such being the bequest Mr. Gupta has further contended that in the facts and circumstances established on evidence it must be held that the executors have assent to such a bequest in their own favour as trustees. Particular reliance is placed by Mr. Gupta on the executor's letter dated September 6, 1955 Ext. 8d referred to hereinbefore and the fact of the executors realising rent for a few months and then allowing defendant No. 2 to realise the same in fulfillment of the obligation imposed by the material clause in the will. Particular reliance is placed by Mr. Gupta on the executor's letter dated September 6, 1955 Ext. 8d referred to hereinbefore and the fact of the executors realising rent for a few months and then allowing defendant No. 2 to realise the same in fulfillment of the obligation imposed by the material clause in the will. The effect of such assent is that the executors were divested wholly of their interest as executors and became trustees, so that they could not have sold the property as executors on the date it was so sold and the permission obtained from the probate court is wholly inconsequential because the suit premises had ceased to be a part of the testators estate still under administration in the hands of the executors and had already vested in the hands of the trustees, the legatees, Strong reliance is placed by Mr. Gupta on the single Bench decision of Amir Ali, J. in the case of (1) Charu Chandra v. Bankim Chandra, 42 Calwn 1115 and on an extract from William on Executors 15th Edition from page 860. Mr. Dutt, on the other hand, strongly disputes the construction of the will in relation to the particular bequest as put forward by Mr. Gupta. According to Mr. Dutt, there was no bequest on trust. Executors were no doubt described as trustees but every executor in a sense is a trustee and it is in that light that they were so described Mr. Dutt interprets the particular clause to mean that the suit premises should be held by the executors during the life-time of defendant No. 2 Santosh for providing him the residence and the rent and that only on Santosh's death it has to be given to the reversioner as provided in the clause. Such being the position according to Mr. Dutt there can arise no question of assenting to the bequest prior to the death of Santosh. Alternatively, it has been contended by Mr. Dutt that even if the material clause in the will be interpreted to mean that there was a bequest in favour of the executors as trustees the facts no where establish the executors assenting to any such bequest. Therefore, according to Mr. Alternatively, it has been contended by Mr. Dutt that even if the material clause in the will be interpreted to mean that there was a bequest in favour of the executors as trustees the facts no where establish the executors assenting to any such bequest. Therefore, according to Mr. Dutt, the executors did retain their authority to act as such in respect of the suit premises and sell the same on the necessary permission being obtained from the probate court in terms of section 307 (2)of the Indian Succession Act. ( 14 ) I have carefully read the will on all its terms. I have set out the material clause hereinbefore. I am not in a position to accept the contention of Mr. Dutt that when the two sons Amarendra and Salil were being appointed by the testator to be the executors and trustees they were being described as trustees qua-executors and not independently as trustees. On the other hand, the will indicates that the testator intended to appoint those two sons to be the trustees to hold a bequest in their favour as trustees and that is the bequest set out in paragraph 5 in respect of the suit premises. The direction incorporated in this clause of the will is to the effect that the very same persons who are the executors are the legatees who must hold the suit premises as trustees upon a trust as specified. Reference to illustration (a) to section 10 of the Indian Trust Act may be made to support this view, and as such, I feel no hesitation in accepting the contention of Mr. Gupta that upon a proper construction of the will it should be held that the testator made a bequest in respect of the suit premises in favour of the executors themselves as trustees. The conclusion to the contrary arrived at by the court of appeal below does not appear to me to be correct. ( 15 ) BUT the question which is of utmost importance is as to whether there was an assent to such a bequest prior to the sale in favour of defendant No. 1 so that by the assent the executors would be totally divested of their interest in the property and would render themselves incapable any further to transfer the same as executors. On this point I am unable to accept the contention of Mr. On this point I am unable to accept the contention of Mr. Gupta that there was really any such assent. Evidence shows that the two executors defendants 3 and 4 realised rent for some months in 1954 and in 1955 from the plaintiff on behalf of the estate of the deceased. On September 6, 1955, they by their letter Ext. 8d set out hereinbefore called upon the plaintiff to attorn and pay rent to defendant No. 2 Santosh from the month of August 1955. This letter proceeds on the basis that there is a specific legacy by the will in favour of Santosh in respect of the suit premises and that the executors were assenting to such a bequest. There was no such bequest in favour of Santosh at all. The will itself would show that while the testator gave to his daughter premises No. 8b, Mohanlal Street for life he did not do so in favour of Santosh. On the other hand he bequeathed the suit premises to the trustees for holding the same upon trust to allow Santosh to reside therein and to give him the net rents. The letter dated September 6, 1955, proceeds upon an erroneous assumption that there was a specific bequest in favour of Santosh and that the executors were assenting to such a bequest. It is not assenting to any bequest in favour of the trustees. There is no evidence to show that these executors ever realised any rent as trustees or fulfilled any obligation as such under the will. It is true that on the authority of the letter dated September 6, 1955, the executors allowed Santosh to realilse rent but that in my opinion would not constitute their assenting to a bequest in favour of themselves as trustees. In their act there had been no conscious expression of any intention to act as such and, therefore, it is difficult to hold that there was really any assent to the legacy in their own favour as trustees. Such being the position in 1965 when defendants 3 and 4 obtained necessary permission from the court which had granted the probate and sold the same they did it as executors and they had every authority to do so. Such being the position in 1965 when defendants 3 and 4 obtained necessary permission from the court which had granted the probate and sold the same they did it as executors and they had every authority to do so. ( 16 ) THE decision in the case of (1) Charu Chandra v. Bankim Chandra, though similar in facts is clearly distinguishable because in that case Amir Ali, J, arrived at a specific finding that the facts well justify an inference that thee was an assent to the bequest in favour of the trustees. On the finding arrived at, the learned judge, therefore, rightly held that after the assent the executor could no longer grant any lease in respect of the property qua executor and that principle is also supported by an earlier Bench decision of this court in the case of (2) Marie v. Jatindra, 28 CLJ 141. But as I have pointed out hereinbefore this decision could help Mr. Gupta only if it could be established that there had been an assent to the bequest in favour of the trustees. ( 17 ) WHILE on this point it must be said that there is ample substance in the objection raised by Mr. Dutta that in the facts and circumstances the defendant No. 1 having purchased for consideration the suit premises from the executors on the basis of a permission obtained from the court granting the probate such purchase cannot be disputed unless it is established that the entire transaction is a fraudulent one and that the purchaser is a party to that fraud. A Division Bench of this court in the case of (3) Khetramohan v. Nalinibala, AIR 1932 Calcutta 828 ruled that an order by a probate court, after considering whether permission to sell the property of the deceased should be granted, granting authority to the administrator to sell the property after the administration of the estate of the deceased had been completed is not without jurisdiction and in the absence of fraud purchaser at such sales should be protected. In the present case, it would appear from the facts set out hereinbefore that the executors made out a strong case for sale of the suit premises, in as much as, holding the property any further was uneconomical in their application to the court which had granted the probate and obtained the necessary permission. In the present case, it would appear from the facts set out hereinbefore that the executors made out a strong case for sale of the suit premises, in as much as, holding the property any further was uneconomical in their application to the court which had granted the probate and obtained the necessary permission. The defendant No. 1 is an innocent purchaser for value in such a sale effected on the permission so granted. There is no allegation that such permission was obtained on any fraud. As a matter of facts no case of fraud at all could be made out by the plaintiff. His entire pleading in this respect was that since the executors were selling off the property beyond their power they were doing so in a fictitious manner. No particulars of any fraud in effecting transaction was either pleaded or proved. Such being the position in my view Mr. Dutt has rightly claimed that the defendant No. 1 in the present case, is entitled to claim protection under the law and the sale in his favour cannot be permitted to be challenged in the manner proposed by the plaintiff. ( 18 ) ON the reasons as aforesaid, I affirm the finding of the learned judge in the court of appeal below that the defendant No. 1 did acquire a valid title to the suit premises by his purchase from the executors and I further hold that the plaintiff is not entitled in law to dispute the validity of such a sale for reasons given hereinbefore. ( 19 ) NEXT I proceed to consider how far the plaintiff in the present case is estopped from disputing the title of the defendant No. 1. On my findings recorded hereinbefore this issue has lost much of its importance but since the decisions of the two courts below rest materially on the application of this principle and the correctness of such application has been seriously disputed by Mr. Gupta, I feel it necessary to deal with the issue. In the present case, the plaintiff who is the tenant in respect of the suit premises is not disputing the title of his landlord who had inducted him as a tenant in the suit premises. He is disputing the title of defendant No. 1 who admittedly claims a derivative title. Mr. In the present case, the plaintiff who is the tenant in respect of the suit premises is not disputing the title of his landlord who had inducted him as a tenant in the suit premises. He is disputing the title of defendant No. 1 who admittedly claims a derivative title. Mr. Gupta, in my view, had rightly contended that in such a situation the principles underlying section 116 of the Evidence Act do not apply to disentitle the plaintiff from disputing the title of defendant No. 1. But as the Privy Council pointed out in the case of (4) Krishna Prasad v. Barabani Coal Concern, 64 Indian Appeals 311 that even in such cases there may be other grounds of estoppel, e. g. by attornment, acceptance of rent etc. Here in the present case Mr. Dutt appearing on behalf of defendant No. 1 strongly relies on such other grounds in support of the plea of estoppel and that is perhaps the reason behind applying the rule of estoppel by the courts below. It is contended by Mr. Dutt that the plaintiff in the present case having attorned in favour of the purchaser defendant No. 1 and having paid rent to him for all the months prior to the institution of the suit for eviction cannot now turn back and disclaim the title of defendant No. 1 as his landlord. To me it appears that the law on the point is well settled. Where section 116 of the Evidence Act does not apply on its terms because of the fact that the person claiming to be the landlord basis his claim on a derivative title, such a person must prove his title as a condition precedent to establish the relationship of landlord and tenant between himself and the tenant disputing his title if the tenant had not attorned in his favour. But where there has been an attornment the tenant's right to dispute the title of such a landlord in whose favour he has attorned would be subject to the limitation that he must then prove that his attorning in favour of such a person claiming derivative title was due to mistake or ignorance of fact and that the title is really in not such a person but in some other person. That appears to be the principle laid down in the case of (5) Lodha Molla v. Kalidas Roy, ILR 8 Calcutta 238 (42) relied on by the court of appeal below. Foa on General Law of Landlord and Tenant referred to the same principle in observing; "but the tenant is not allowed to impeach the title of a person to whom he has paid rent or whose title he has otherwise recognized without showing a better title in some other person. " Mr. Dutt has relied upon the decision in the case of (6) Hindle v. Hick Bros. , 1947 (2) All England Reports 825, where the law on the point has been well summarised as follows: -"where rent is paid by a tenant in such circumstances as to amount to prima facie evidence of title; the person receiving rent is in as good a position as if he were actually in possession, and, although it is open to the tenant to prove, if he can, that he paid the rent in ignorance of the true state of the title and that some third person is the real assignee of the reversion, he must show such a title in that third person as would entitle him to a verdict in ejectment. It is not sufficient to show that the person to whom rent is paid has no title, his receipt of the rent being sufficient until a better title is shown. " ( 20 ) IN the present case admittedly the plaintiff attorned in favour of defendant No. 1 by accepting him to be the landlord since the purchase by defendant No. 1 by paying rent to him. No doubt it is claimed by Mr. Gupta that such payment having been made without any prejudice and without the knowledge of the true state of affairs, it cannot be said that there has been an attornment in favour of purchaser defendant No. 1. In my view the mere fact that he paid rent on a declaration that he is so paying without prejudice is no ground for holding that there has been no attornment. If the plaintiff was really in any doubt as to the title of defendant No. 1 to receive rent law provides in section 21 of the West Bengal Premises Tenancy Act, for depositing rent with the Rent Controller asserting such a dispute. If the plaintiff was really in any doubt as to the title of defendant No. 1 to receive rent law provides in section 21 of the West Bengal Premises Tenancy Act, for depositing rent with the Rent Controller asserting such a dispute. That was not done in the present case. On the other hand, he went on paying rent regularly and it has been rightly pointed out by Mr. Dutt that the assertion that the rent is being so paid without prejudice is by itself quite ambiguous and doe snot necessarily mean that the rent is being so paid though the title to receive the rent is disputed. Nor am I in a position to accept the contention of Mr. Gupta that such payment was made by the plaintiff in ignorance of the true state of affairs. Admittedly there was a previous letter of attornment dated September 6, 1955, by the executors referring to the will of the original landlord and the probate obtained by them. Though erroneously there is a reference in that letter to a bequest in favour of defendant No. 2. In the present suit, the plaintiff has pleaded that the better title is the said defendant No. 2 by virtue of the will and, therefore, it must be said that he was aware all along of the said position. Hence, there is no merit in the suggestion that when the plaintiff attorned in favour of the defendant No. 1 he did so in ignorance of true state of facts. Then again on the principles referred to hereinbefore, the plaintiff is to prove existence of a better title in a person other than defendant No. 1 in order to sustain his defence and it would not be sufficient merely to show that the defendant No. 1 acquired no title by the purchase. On this point the specific case of the plaintiff is that such title is in defendant No. 2 but on the evidence before the court it can hardly be said that the said position could be established. Under the will the defendant No. 2 merely acquired a right of residence in the suit premises and the rents and profits arising therefrom. Unlike his sister to whom the testator had given a life estate in respect of premises No. 8b, Mohanlal Street, defendant No. 2 was not given even such an estate in the suit premises. Under the will the defendant No. 2 merely acquired a right of residence in the suit premises and the rents and profits arising therefrom. Unlike his sister to whom the testator had given a life estate in respect of premises No. 8b, Mohanlal Street, defendant No. 2 was not given even such an estate in the suit premises. Moreover, whatever right, title and interest he had that cannot prevail over that of the purchaser defendant No. 1 since defendant No. 2 himself was a confirming party to the transfer in favour of defendant No. 1. Hence, it must be held that having failed to establish a better title in defendant No. 2 than that of defendant No. 1 he cannot any further dispute the title of defendant No. 1 to receive rent because his attorning in favour of defendant No. 1 must prevail. Appeal dismissed.