JUDGMENT

Suffian FJ:

I have had the advantage of reading my brother MacIntyre's judgment and I too think this appeal should be dismissed.

The following cases were also cited in argument: Ban Seng V. Yap Pek Soo, Tay Cheo V. Chow Ngia, Govindaraju V. Krishnan, Bhavan Lalu v. Umar Mohamed Bhaiji AIR 1927 Bombay 129, Hee Cheng V. Krishnan.

The widow (appellant) obtained a warrant of distress in respect of rent alleged to be due for the period beginning on 1 July 1964 and ending on 28 February 1965. On the tenant (respondent) objecting, the learned Magistrate held that she was not entitled to the rent and on appeal Ali J agreed with the learned Magistrate. With respect I also agree.

Immediately before the issue of the temporary occupation licence to the deceased, the land concerned was State land. After the issue of the temporary occupation licence, the land was still State land, but the deceased had a licence to occupy it temporarily. By law this licence was not transferable and I agree with Good J in Papoo V. Veeriah that the licence was not transmitted to the widow on the licensee's death and he died on 10 August 1962. Thereafter the collector renewed the licence for the year 1963 in the deceased's death, he refused to renew it after it after the end of 1963. Whatever may have been the deceased's or the widow's right between the deceased's death and the end of 1963, thereafter because Government refused to renew the temporary occupation licence in the name of the deceased or any one else, neither his estate nor she had any right of any kind whatever to the land. Section 116 of the Evidence Ordinance, 1950 does not prevent the tenant from contending that the deceased or the widow had no title in respect of the material period beginning on 1 July 1964 and ending on 28 February 1965 because he was not saying that the deceased or the widow had not title at the beginning of the tenancy. All he said was that neither the deceased nor the widow had any title thereafter. Sir George Rankin when giving the advice of the Privy Council in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. & Ors. AIR 1937 PC 251 said at p. 255 that s. 116 of the Indian Evidence Act (which is identical with our s. 116) does not "prevent a tenant from pleading that the title of the original lessor has since come to an end". And that was exactly what happened here. The tenant contended that the deceased's title had come to an end.

The facts in the instant case are almost similar to the facts in Rev Luckman Chaplain v. Pearey Lal AIR 1939 All 670. There a landlord sued for arrears of rent in respect of a period of four months - February to May 1938 - for a bungalow let to the defendant. The bungalow being within a cantonment area was held on a tenure called the cantonment tenure under which the Government was authorized to resume possession of the land and also of any house standing on it by offering proper compensation to the owner. The defendant resisted the suit on the ground that the title of the plaintiff had passed in the Government on 1 February 1938, and hence the plaintiff had no right to any rent for the material period. The defendant also said that he had actually paid the rent for that period to the Government. On the authority of the above-cited Privy Council case, Mulla J held that the defendant was not precluded by s. 116 of the Indian Evidence Act from making the plea which rested upon facts which happened subsequent to the commencement of the tenancy.

There was some ambiguity as to the capacity in which the widow brought these proceedings. The title of the proceedings merely described her by name. In her affidavit in support of her application for distress, however, she described herself as administratrix of her husband's estate. Be that as it may, Mr. Sault who appeared for the tenant in the lower Court conceded that the widow was acting in her capacity as administratrix, and the matter was disposed of on that basis. But as