The rule of estoppel in Section 116 of the Evidence Act applies only to the denial of the landlord's title at the beginning of the tenancy.

Alfred Henry Lionel Leach, C.J.

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

2. The appellants are the legal representatives of one Naivasal Abdul Waheb Saheb, who instituted a suit in the Court of the District Munsiff of Tirupattur for partition of two items of immovable property. The properties originally belonged to three brothers, Mohammed Hussain, Mohammed Ghouse and Moham-med Usman. On the 20th September, 1926, Mohammed Huss∈, who was a major, for himself and on behalf of his brothers, who were minors, conveyed item No. 1 to Mahabub 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. Mohammed Ghouse attained his majority in 1930 and Mohammed 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 Mahabub 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.

3. The District Munsiff held that the suit could not be maintained because sec- tion 116 of the Evidence Act precluded the plaintiff from questioning the title of Mahabub Bivi. The defendant also pleaded that the suit was barred by limitation, but this plea was rejected by the District Munsiff. 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 Munsiff 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.

4. The rule of estoppel embodied in Section 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 Arnmal v. Mangilal Sowcar L.P.A. 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 Somayyaj J., and before him it was suggested r that the judgment in Parvati Ammal v. Mangilal Sowcar L.P.A. 44 of 1944 had been given without taking into consideration the judgment of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh (1915) 29 M.L.J. 335 : L.R. 42 LA. 202 : I.L.R. 37 All. 557 . 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 Nesbitt y. 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 Kishan Prasad Lai Singh Deo v. Baraboni Coal Concern, Ld. (1937) 2 M.L.J. 286 : L.R. 64 IndAp 381 : (1938) 1 Cal. 1 this is even plainer.

5. In Bilas Kunwar v. Desraj Ranjit Singh (1915) 29 M.L.J. 335 : L.R. 42 LA. 202 : I.L.R. 37 All. 557 the facts were these. A Hindu taluqdar had two wives and a Muhammadan 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 for him. The taluqdar leased the property to the defendant. After his death, his senior winidow served upon the defendant a notice to quit and on his fai