B.C Chakrabarti, J.:— This is an appeal by the tenant (hereinafter called the defendant) against a decree of eviction passed in Ejectment Suit No. 1137 of 1974 of the City Civil Court, Calcutta.

2. The respondent Ramesh Chandra Guzrati, (hereinafter called the plaintiff) instituted the suit in his capacity as Karta of the Hindu undivided family styled “Ramesh Chandra Guzrati and Others”, for recovery of possession of the disputed premises, held by the defendant as a tenant, after determination of the tenancy by the service of a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act the Grounds upon which the claim for eviction has been founded are (1) a part of the disputed premises has been sublet to Advance Traders after the commencement of the West Bengal Premises Tenancy Act, 1956 and without any consent in writing of the plaintiff landlord, (2) the plaintiff reasonably requires the suit premises for his own use and occupation and also for the use and occupation of the members of the “Hindu undivided family,” there being no other reasonably suitable accommodation available to the plaintiff elsewhere.

3. The specific case made out in the plaint is that the family consists of the plaintiff himself, his wife, one son aged 4 years, three unmarried brothers of varying ages between 21 and 24 years, one married brother with his wife and a son, one unmarried sister and widow mother. They have been residing with great difficulty in only 3 rooms on the 3rd floor and one room with asbestos roof on the top floor besides kitchen and lavatory. The accommodation available to the plaintiff is thoroughly insufficient. The brothers, though they have attained marriageable age cannot be given in marriage for want of suitable accommodation. The room in the occupation of the defendant being adjacent to the rooms in plaintiff's occupation is most suitable for the immediate requirement of the plaintiff. The defendant not having vacated the premises in compliance with the notice, the plaintiff was obliged to institute the suit.

4. The suit was contested on the following amongst other grounds:

The suit as framed is not maintainable and is otherwise bad for non-joinder of necessary parties. The defendant was inducted in the suit premises by Ganesdas Guzrati, father of the present plaintiff in 1954. Ganesdas died in 1965 leaving behind him surviving five sons, four daughters and a widow who inherited the property. The defendant denied that the plaintiff is the sole landlord or that he has any right to maintain the suit. The allegation of subletting a portion of the premises is denied. The allegation of reasonable requirement is also not true. The plaintiff has in recent times let out 2 other rooms on the 3rd floor to other tenants and one room on the ground floor to another tenant. The plaintiff has constructed two new rooms over the portion in his occupation and has let out one of them, retaining possession in the other. The legality and validity of the notice has also been challenged.

5. On the pleadings aforesaid the following issues were settled for decision:

1. Is there any relationship of landlord and tenant between the plaintiff and the defendant?

2. Is the suit maintainable at the instance of the plaintiff?

3. Does the plaintiff reasonably require the premises for own use and occupation as alleged? Is he the owner of the suit premises? Has he a reasonably sufficient accommodation?

4. Has the defendant's tenancy been validly determined by a legal and sufficient notice?

5. Is the plaintiff entitled to the reliefs claimed?

6. At the trial the plea of subletting was given up. Parties adduced evidence both oral and documentary. P.W 1 is the plaintiff himself. He says that after the institution of the suit two of his brothers have married. On the date of his examination, he admits he came into possession of one more room recently. He admits to have let out one room to one Punambhai in 1966 and another portion was let out to “Ciesco” in 1973. This latter room is now in the occupation of the plaintiff making the number of rooms in their occupation to be four now instead of three as on the date of suit. The other room let out to Babumal and Sons as suggested by the defendant is on the first floor and P.W 1 says that it cannot be used as a residence. In cross-examination he says that the defendant was inducted by his father in 1954 that his father died in 1965 leaving behind his widow, 5 sons and 4 daughters, three of whom are married and that after his father's death his widow, sons and daughters all became heirs. He says he gave permission to his tenant Chandu Babu to extend his portion of tenancy and denies that he himself made any new construction.

7. D.W 1 is the defendant. He says that the plaintiff is not the Karta, and that all the heirs of Ganesdas are the owners. He further says that “Ciesco” was in possession of two rooms, both of which are now in the occupation of the plaintiff and that plaintiff has raised another room with asbestos roof above the disputed room which has been let out to one Chandu Babu.

8. The documentary evidence consists of the notice to quit, the postal acknowledgment, some letters that passed between the parties, an application for deposit of rent with the Rent Controller, the original title deed of plaintiff's predecessor and the agreement of tenancy executed by the defendant. On the defendant's side several rent receipts were exhibited.

9. On the evidence on record, the learned Judge in the trial court found that the plaintiff was in occupation of 4 rooms on the 3rd floor besides one room with asbestos roof on the 4th floor, that the accommodation available to the plaintiff was insufficient and that the family which now consists of 4 married brothers, one brother who has since attained marriageable age, one unmarried school-going sister and mother and that they reasonably require more space for their own use and occupation. He also found that the plaintiff has no other reasonably suitable accommodation elsewhere. Issue No. 3 was thus disposed of in favour of the plaintiff. In regard to issues 1 and 2, the learned Judge overruled the defence contention upon a finding that the defendant having himself deposited rent with the Rent Controller describing the plaintiff as the landlord is estopped from contending that there are other cosharers landlords. Furthermore it was held that since plaintiff was a person entitled to receive rent and did in fact receive the rent after his father's death, is the landlord within the meaning of the word as defined in Section 2(d) of the West Bengal Premises Tenancy Act. The two issues were thus answered in favour of the plaintiff. The notice was found to be valid and sufficient. The service of the notice was not in dispute. On such findings the suit was decreed on contest with costs. Being aggrieved the defendant has preferred the present appeal.

10. Mr. Ghosh appearing for the appellant raised two points in support of the appeal — one relating to the maintainability of the suit at the instance of the plaintiff and the other relating to the merits of the claim.

11. In elaborating the first point Mr. Ghosh argued that the three married sisters of the plaintiff also became heirs to the estate left by Ganesdas Guzrati and since the defendant was let into possession by Ganesdas, the three married daughters also became landlords though they are not members of the undivided family of which the plaintiff claims to be the karta.

12. Admittedly, the family of the plaintiff is governed by the Mitakshara School of Hindu Law. There is no dispute with the proposition that married sisters do not constitute members of a joint Hindu undivided family. But with the passing of the Hindu Succession Act, they are legally entitled to inherit the estate left by their father. Of the daughters of Ganesdas, three are admittedly married. Consequently when the plaintiff sues as Karta of the Hindu undivided family, the married sisters are necessarily excluded from the category of the plaintiff. Now in order to succeed on the ground of reasonable requirement of the landlord, it is necessary for the landlord to show that besides being the landlord he is also the owner of the premises. Such being the position in law Mr. Ghosh argued that the suit as framed is not maintainable at the instance of the plaintiff.

13. Mr. Bagchi in defending the appeal invoked the doctrine of estoppel and argued that the tenant/defendant having attorned to the plaintiff, having paid rent to the plaintiff as landlord and having described the plaintiff as the landlord in his application for deposit of rent with the Rent Controller is not now entitled to contend that somebody else is the landlord.

14. The points thus posed by the parties raises an important question of law, namely, to what extent the doctrine of estoppel would be attracted in the given circumstances of the case. At the outset it may be pointed out that Section 116 of the Evidence Act which deals with the question of estoppel of tenant, does not strictly apply to this case for that section prohibits a tenant from repudiating the title of the landlord at the beginning of the tenancy. In the case of Kumar Raj Krishna v. Barabani Coal Concern, 64 Ind App 311: (AIR 1937 PC 251), the Privy Council held that Section 116 postulates that there is a tenancy still continuing and that it had its beginning at a given time from a given landlord and provides that neither a tenant nor anyone claiming through such a tenant shall be heard to deny that particular landlord had at that date a title to the property. In the instant case the defendant has nowhere denied the title of Ganesdas who had actually inducted him as tenant. The plaintiff not being the original landlord but claiming title by inheritance is not entitled to invoke Section 116 of the Transfer of Property Act on its terms. But then there may be other kinds of estoppel as between landlord and tenant even though the case may not come within the meaning of Section 116. Mr. Bagchi, however, pointed out that here in this case, the defendant had attorned to the plaintiff, paid rent amicably to the plaintiff for some time and thereafter deposited the rent with Rent Controller in favour of the plaintiff and hence he argued that the defendant is estopped from questioning the title of the plaintiff as landlord. The position in law in such circumstances has been explained in Woodfall's Law of Landlord and Tenant (28th Edition, Vol-I, para 1-1730) in the following words “The rule that a tenant may not dispute his landlord's title applies only to the title of the original landlord who let him in, and not to that of an assignee of the reversion and such title may be disputed by the tenant. But if the tenant has paid rent to the claiming assignee of a reversion or his agent, such payment is prima facie evidence of the title of the assignee, and the tenant, except in a case of fraud or misrepresentation, can only defeat that title by showing that he paid in ignorance and that some third person is the real assignee of the reversion; it is not enough for him to show that the claiming assignee has no title.”

15. In Foa's General Law of Landlord and Tenant (8th Edition page 476 para 746) it is stated “…but the tenant may explain the payment by showing that there is a third person who is in fact the assignee of the reversion, and that the rent was paid by mistake or in ignorance of the facts relating to the title or that the payee received it as agent or collector for such third person.” That also appears to be the principle laid down in the case of Lodha Molla v. Kalidas Roy (1882) ILR 8 Cal 238 and relied on in a very recent decision of this court in the case of Dr. Chaitanaya Chandra Saha v. Parimal Chandra Datta, 1979 (2) Cal LJ 7.

16. Upon a consideration of the authorities it follows, therefore, that where the person receiving the payment was not the person who let the payer into possession, but some one who is claiming title by succession, the mere act of payment as and for rent, without more, is not conclusive and does not estop the payer from afterwards repudiating the payee's title if he can explain away the payment by showing that he made it in mistake, ignorance or incomplete knowledge, of the circumstances of payee's title or of other material facts. (See the Law Relating to Estoppel by Representation by Bower 3rd Edition page 194).

17. In the instant case before us there has undoubtedly been attornment followed by payment of rent to the plaintiff. The defendant does not dispute the title of the plaintiff as a cosharer landlord. All that he contends is that there are others who are equally interested as owner landlords and who have not joined in this suit as plaintiff. It is in the admission of the plaintiff himself that the estate left by his father was also inherited by his daughters who are now married. The plaintiff suing as Karta does not certainly represent their interest. The defendant might have paid rent to the plaintiff in ignorance of any arrangement as between the plaintiff and his married sisters but when it comes to the question of eviction of the defendant he is entitled to show that the plaintiff alone is not entitled to such relief. The doctrine of estoppel by representation is a rule of evidence and except as a bar to testimony it has no particular significance. In this case before us it has come out from the evidence of the plaintiff himself that he has other cosharers. The question whether the defendant would have been entitled to say this is now merely academic because the fact stands established by the plaintiff's own evidence. In such circumstance, the mere fact of payment by the defendant to the plaintiff cannot by itself be sufficient to entitle the plaintiff to a decree for eviction for the simple reason that he represents only a section of the entire body of owners. The position might have been different if the original demise was by the plaintiff for it is not impossible for one of several owners to effectively demise a property. In such a situation it may not be open to the tenant to contend that there are other cosharers of the lessor. But here the plaintiff cannot take such a stand he himself having derived title by inheritance along with others from the original lessor.

18. Finally, Mr. Bagchi in support of his contention referred to a single Bench decision in the case of Sugga Bai v. Smt. Hiralal, AIR 1969 Madh Pra 32. It has been held in that case that a tenant “cannot be permitted to deny the derivative title of a reversioner if he has attorned to him.” In view of the authorities earlier cited we are unable to accept such a broad proposition that where there has been an attornment, the tenant would under no circumstances be entitled to deny the derivative title of a reversioner.

19. Such being our view of the matter, we find and hold that the plaintiff cannot sue or succeed on his own.

20. On the other aspect of the case, namely, the merits of the plaintiff's claim, the case of the defendant-appellant appears to be rather weak. There is no dispute that the plaintiff's family now consists of himself, his wife, two sons, 3 married brothers, one unmarried brother, one unmarried sister and the widow mother. They are presently in occupation of four rooms in the 3rd floor and one room with asbestos roof in the top floor. There is also no dispute that the disputed room in the occupation of the defendant is adjacent to the rooms in the possession of the plaintiff's family and consequently from the point of view of contiguity and homogeneity, the eviction of the defendant would serve their purpose better than the eviction of any other tenant. Mr. Ghosh, however, disputed the claim that the plaintiff is in occupation of only four rooms in the 3rd floor and one room in the top floor. He also pointed out that the plaintiff came into possession of at least one room on his own showing, after the institution of the suit. While this is true, it is equally true that the requirement of the plaintiff has increased since after the filing of the suit, in so far as three of his brothers are now married and the youngest cannot be given in, marriage for want of suitable accommodation. The requirement as on the date of the decree is the relevant factor for consideration and not what the requirement was at the date of the suit. Undoubtedly the plaintiff's requirement has considerably increased since after the filing of the suit. That is an aspect which has to be taken into consideration. Considered in that light the requirement does not appear to us to be unreasonable.

21. P.W 1 in his evidence has stated that there are 6 rooms in the 3rd floor, that the plaintiff is now in occupation of 4 rooms and that besides the defendant there are two other tenants in the 3rd floor. In this state of evidence, Mr. Ghosh posed a question as to how many rooms there really are in the 3rd floor? Even if we eliminate the possibility of a mistake or confused statement being made by P.W 1, we do not know whether the two other tenants referred to by P.W 1 are joint tenants in respect of a single room. That is a possibility which was not cleared by cross-examination or by direct evidence. The defendant in his evidence did not say how many rooms are in the occupation of the plaintiff in the 3rd floor. He did not adduce any corroborative evidence to support his case that the plaintiff has constructed rooms in the top floor. Mr. Ghosh complained that the controversy as to the extent of accommodation available to the plaintiff could be set at rest if only the plaintiff had taken out a commission for local inspection. We do not see how a local inspection would have improved matters. That apart, if the defendant felt that such a commission was necessary, he might as well have asked for it to disprove the plaintiff's claim.

22. Be that as it may, we do not consider it necessary to dwell on this point any longer in view of our finding on the other point regarding the maintainability of the suit at the instance of the plaintiff as the Karta of a Hindu undivided family.

23. There would be no point in remitting the suit to the court below so as to enable the plaintiff to bring on record the other co-owners who have been left out, because, even then the court would be incompetent to pass a decree on the basis of the notice which was issued on behalf of the plaintiff alone.

Such being the position, the appeal is liable to succeed and is hereby allowed. The judgment and decree of the court below are set aside and the suit is dismissed on contest. Parties to bear their own costs throughout. In view of the fact that the appeal succeeds and the decree of the court below is set aside, the connected application becomes infructuous and is dismissed.

Anil K. Sen, J.:— I agree.

Appeal allowed.