Judgement

Appeal from a judgment and decree of the High Court (May 10, 1910) reversing a judgment and decree of the acting Subordinate Judge of Allahabad (August 26, 1908).

The suit was instituted by Balraj Kunwar, since deceased, the widow of a taluqdar of Oudh, against the respondents to recover possession of a bungalow. The facts are stated in the judgment of their Lordships. Two questions arose upon the appeal, namely, (1.) whether the purchase of the property in suit by the taluqdar in the name of his Mahomedan mistress, from whom the first respondent purported

to have bought, was benami, and (2.) whether the first- respondent was estopped from denying the appellants title by s. 116 of the Indian Evidence Act, 1872. After the suit was instituted the plaintiff Balraj Kunwar died, and the above-named appellant, her co-widow, was brought upon the record in her place.

The acting Subordinate Judge who tried the suit gave judgment for the plaintiff. He was of opinion that the respondents were estopped from denying the appellants title, and that the question as to the true ownership of the property could only be tried in a separate suit after the respondents had delivered up possession.

The High Court (Richards and Tudball JJ.) reversed this decision. The learned judges found upon the facts that the property had been purchased by the taluqdar with the intention of conferring the beneficial ownership upon his mistress. They further held that no estoppel arose in favour of the substituted plaintiff, the appellant, as she was not the original landlord or her heir or representative.

Sir Erle Richards, K.C, and Ross, K.C., for the appellant. The facts show that the purchase by the taluqdar was a benami transaction. The view of the High Court upon the estoppel question was clearly erroneous, as the landlord was the plaintiff in the suit. The subsequent substitution of the present appellant upon the record is immaterial. Sect. 116 of the Indian Evidence Act, 1872, is intended to reproduce the English law with regard to the estoppel of a tenant. The English authorities establish that the estoppel applies when a tenant holds over after notice to quit Smiths Leading Cases, 11th ed. vol. ii., p. 183; Doe v. Smythe ((1815) 4 M. & S. 347.); Bayley v. Bradley (( 1848) 5 C. B. 396, at p. 400.) ; Doe v. Baytup. ((1835) 3 Ad. & R. 188.) Under the Transfer of Property Act, 1882, s. 108 (q), a tenant is bound to put the lessor into possession of the property at the end of the tenancy.

De Gruyther, K.C., and Dube, for the respondents. Upon the facts the intention of the taluqdar was to confer a beneficial interest upon his mistress. [Uman Pershad v. Gandharp Singh (( 1887) L. R. 14 Ind. Ap. 127.) was referred to.] The first respondent by purchase from her obtained a good title. The estoppel does not arise, because the tenancy was verbal, and upon the facts it was made on behalf of the mistress and not on behalf of the plaintiff as landlord. Sir Erle Richards, K.C., replied.

The judgment of their Lordships was delivered by

SIR GEORGE FARWELL. This is an appeal from a judgment and decree dated May 10s 1910, of the High Court at Allahabad, which reversed a judgment and decree dated August 26, 1908, of the judge of the Small .Causes Court of Allahabad exercising the powers of a subordinate judge.

Rai Bisheshar Bakhsh Singh was a taluqdar of Oudh; he was a man of some wealth, a Rajput of good position ; he had two Rajput wives, but no son ; he had, however, one daughter by one of the wives. He had also a Mahomedan mistress named Jagmar Bibi, by whom he had two sons, and for whom he had made provision on a fairly liberal scale, and had given full possession thereof in 1876 and in 1888. On June 9, 1887, the taluqdar purchased for Rs.9000 the bungalow in dispute in this action he raised the purchase-money by a mortgage on his own property and paid for it, and had the sole use and enjoyment of it for himself and his wives during his own life, but the deed o