JUDGMENT

Broadway, J. - One Mt. Bholi executed a mortgage-deed in favour of Mela Ram and Parshotham Das on the 14th December, 1919 by which she mortgaged a house to the mortgagees for Rs. 288. The mortgage was with possession, but on the same day they leased the house to Mt. Bholi for one year at a rental of 8 annas per mensem, a deed of lease was duly drawn up and executed. On the 28th April, 1921, the mortgagees sued Mt. Bholi for Rs. 8 as arrears of rent and also asked for possession by her ejectment. Mt. Bholi denied execution of the lease and pleaded the invalidity of the mortgage.

2. The trial Court found the execution of the lease deed proved, but held that as possession had not been given to Mt. Bholi as a tenant, the relationship of landlord and tenant had not been established.

3. The mortgagees appealed to the learned District Judge urging that under Section 116 of the Indian Evidence Act Mt. Bholi was estopped from denying their title of landlords. The learned District Judge examined the mortgage-deed and came to the conclusion that it was of a nature which lent itself to serious dispute and that, therefore, it would not be right to eject Mt. Bholi on a technical plea.

4. Their appeal having been dismissed the mortgagees have come up to this Court in second appeal through Mr. Bahari Lal; and I have heard Mr. Qareshi for the respondent.

5. In Makhan Singh v. Baisokhi Ram Shah (1919) 128 P.R. 1919 it was held that a tenant who has executed a lease, but has not been let into possession by the lessor, is estopped from denying his lessor's title in the absence of proof that he executed the lease in ignorance of the defect in the lessor's title or that the execution of the lease was procured by fraud, misrepresentation or coercion.

6. This decision followed Venkata Chetty v. Aiyanna Gounden (1917) 40 Mad. 561. In the present case the mortgagee's title was created by Mt. Bholi herself and it should seam that she can scarcely now set up any defect of which she was ignorant (Woodroffe's Evidence Act, pp. 839 to 840). The mere fact that Mt. Bholi was in possession prior to the execution of the lease does not prevent the doctrine of estoppel from being applied. She can prove that she was coerced into executing the lease or was induced to execute it by fraud or misrepresentation.

7. No enquiry has bean made into these points and I accordingly accept the appeal and remand the ease to the Court of first instance for enquiry and decision on any fraud or misrepresentation or coercion alleged by her. Costs in this Court will follow the event.