Judgement

Law. Rep. 52 Ind. App. 178 ( 1924- 1925)

A. H. Forbes V. L. E. Ralli 2

Appeal (No. 5 of 1924) from a decree of the High Court in its appellate jurisdiction (May 17, 1922) reversing a decree made by Ross J. (July 19, 1921) in a second appeal.

The appellant sued the respondent in the Munsif s Court to eject them after notice from a plot of land which they occupied under an agreement for a lease made in 1894.

The defences substantially relied on in the suit were (1.) that the letting in 1894 was a permanent one; (2.) that by reason of certain representations made during the currency of the tenancy the appellant was estopped from denying that it was permanent.

The facts are fully stated in the judgment of the Judicial Committee.

The suit was dismissed by the Munsif, and that decision was affirmed on appeal to the District Judge. Upon a second appeal, Ross J. made a decree for ejectment. He held that the lease of 1894 upon its true construction was merely a yearly letting; also that no estoppel arose. Upon a further appeal to the appellate jurisdiction the decree of Ross J. was reversed and the suit dismissed. The learned judges (Dawson Miller C.J. and Mullick J.) agreed with the view of Ross J. that the tenancy as created was not permanent, but held that the present appellant was estopped under s. 115 of the Indian Evidence Act, 1872, from saying that it was not. The appeal is reported at I. L. R. 1 P. 717.

1925. Feb. 23; March 10, 12. De Gruyther K.C. and Kenworthy Brown for the appellant. The appellate Court rightly held that upon the true construction of the lease it was not permanent; moreover the appellant as executor had no power to grant a permanent lease. The appellant was not estopped under s. 115 of the Indian Evidence Act, 1872, as there was no representation of an existing fact, but merely a statement of opinion upon a question of law; Ramsden v. Dyson (L. R. 1 H. L. 129.); Beni Ram v. Kundan Lall (( 1889) L. R. 261. A. 58.); Rashdall v. Ford (( 1866) L. R. 2 Eq. 750,754.); Jordan v. Money (( 1854) 5 H. L. C. 185, 214.); Maddison v. Alderson (( 1883) 8 App. Cas. 467,475.); Beattie v. Lord Ebury (( 1872) L. R. 7 Ch. 777.); Gopee Loll v. Chundraolee Buhoojee (( 1872) 11 B. L. R. (P. C.) 391, 395.). The appellate Court relied on Narsingh Dyal Sahu

v. Ram Narain Singh (( 1903) I. L. R. 30 C. 882, 893.), in which were applied Cooper v. Phibbs (( 1847) L. R. 2 H. L. 149.) and Lord Beauchamp v. Winn (( 1873) L. R. 6 H. L. 223.), but those decisions did not turn upon estoppel. If there was any representation of a fact it was unauthorized. Further, it was not established that the appellant had acted on the representation. No new contract can be implied, because the Transfer of Pro perty Act requires a permanent lease to be by a registered document.

Sir John Simon K.C., Dunne K.C. and Hyam for the respondents. Whether or not the lease was permanent, the Indian authorities supported the view that it was so, or at least made that a reasonable belief Promoda Nath v. Govindo Chowdhury (( 1905) 9 Cal. W. N. 463.); Ismail Khan Mahomed v. Joygoon. (( 1900) 4 Cal. W. N. 210.) The inquiry giving rise to the representation was to relieve that doubt, and it clearly was acted upon. Under Ramsden v. Dyson (L. R. 1H. L. 129.) and other English authorities an estoppel is raised against a landlord if he merely stands by knowing that his tenant is building in the belief that he has a lease which entitles him to do so safely. Even if that is not so under

s. 115, the facts as found bring the case within that section. For the purpose of raising an estoppel a statement as to the existence of a legal right is a statement of fact. That is so in English law Cooper v. Phibbs (L. R. 2 H. L. 149,170.); Lord Beauchamp v. Winn (L. R. 6 H. L. 223,234.); Jones v. Clifford (( 1876) 3 Ch. D. 779, 792.); and the same principle applies under s. 115 Narsingh Dyal Sahu v. Ram Narain Singh (I. L. R. 30 C. 894.), Sarat Chunder Dey v. Gopal Chunder Laha (L.