Rampini, J.:— The facts of the case out of which this appeal arises are as follows:—

The Plaintiff alleges that he has purchased a plot of 8 cottahs of land in Kidderpore from one Punti Bewa and seeks to eject the Defendant, who is now in possession of it. He admits that his vendor Punti Bewa previously to his purchase of it sold the land to the Defendant, but he alleges that this sale was a fraudulent one, brought about by undue influence on the part of the Defendant, who was Punti Bewa's muktear in certain criminal cases.

The Defendant contended that Punti Bewa had no title to the land and that the true owner of the land was Narain Khela from whom he purchased it. He admits that he previously purchased the land from Punti Bewa in ignorance of the title of Narain Khela but avers that when he learnt of Narain Khela's title, he obtained a conveyance of it from him.

The Judge has found (1) that Punti Bewa had no title to the land either by inheritance or adverse possession, (2) that it belonged to Narain Khela, (3) that the Plaintiff paid no consideration for the deed of sale which Punti Bewa executed in his favour for the land and that therefore there was no real sale by Punti Bewa to the Plaintiff. He accordingly dismissed the suit.

The Plaintiff appeals. On his behalf it has been contended (1) that the Plaintiff's deed of sale is valid, though no consideration may have been paid by him, (2) that the conveyance is not void, but voidable, (3) that the Defendant is estopped from setting up the title of Narain Khela without giving up possession to Punti Bewa or her representative, and (4) that he is a constructive trustee on behalf of Punti Bewa, and can only ask in this suit to be reimbursed for the sum of Rs. 500 which he paid to Narain Khela for his title to the land.

It seems unnecessary to consider the first and second of these grounds of appeal. Punti Bewa has been found to have had no title. She had therefore no interest in it which she could convey to the Plaintiff. It is therefore immaterial whether the conveyance was a good conveyance or not and whether it was void or only voidable.

The learned pleader for the Appellant admits that the Defendant is not estopped from setting up the title of Narain Khela by any rule of estoppel to be found in the Indian Evidence Act, or any other statute prevailing in this country. But he argues the Defendant obtained possession from Punti Bewa and ought therefore, when sued for ejectment by Punti Bewa's assignee or representative, to give up possession of the land before he sets up the title of Narain Khela, or, at all events, he ought only to ask to be reimbursed the sum he paid to perfect his title before giving up possession of it to the Plaintiff. The learned Pleader for the Appellant in support of these contentions cites the cases of Dalton v. Fitzgerald; Bigelow on Estoppel, p. 356, and Kishen Ram Datt v. Mumtaj Ali(2).

These questions so raised on behalf of the Appellant need only I think be considered if the Plaintiff has a good conveyance of the land which the Judge of the Court below has found that he has not. But assuming that he has such a good conveyance I would answer, firstly, that the Plaintiff has never asked in his plaint or in either of the Courts below for the relief which his pleader now asks for him. In both the Courts below the Plaintiff has strenuously contended that his vendor had a good title to the land. Secondly, that it would be useless for the Defendant to deliver up possession to the Plaintiff. He has title to the land. The Plaintiff would be bound, if not prevented by rules of procedure, to give back possession to him on his suing for possession and proving his title. Thirdly, the circumstances of the cases referred to are very different from those of the present case and do not seem to warrant the conclusions the learned pleader endeavours to induce us to draw from them. In Dalton v. Fitzgerald, the Defendant obtained possession of certain land from a grantor who had no title to it. By means of that possession he was able to acquire a good title by possession against the true owner. Hence, he was held to be estopped as against the grantor and his remainder-men from disputing the validity of the deed of grant. In the present case, the facts are quite different. The Defendant did not perfect his title by adverse possession. He has no title by adverse possession. He has obtained title to the land from the true owner. Moreover, in the case of Paine v. Jones, a different rule seems to have been laid down. For here, a widow having obtained possession of certain property under the Will of her deceased husband and having perfected her title to it by adverse possession the remainder-men under the Will were held not entitled to oust a purchaser of the property from her.

The rule of estoppel laid down in Bigelow would seem to be that the estoppel only exists so long as the grantee claims under the title of his grantor alone.

Nor can I see any circumstances in this case which render it possible to regard the Defendant as the constructive trustee of Punti Bewa. It is true that the Judge of the Court below after dismissing the Plaintiff's suit goes on to consider the propriety of the Defendant's professional conduct and finds that the Defendant took advantage of his position as Punti Bewa's muktear to induce her to make over to him a very valuable piece of land at a very Inadequate price. I doubt very much the correctness of the Judge's conclusion on this point. The Defendant was in no confidential relation to Punti Bewa as regards the land in dispute. He was her criminal muktear in two petty criminal cases of trespass on the land, in which Punti Bewa was not an accused but the complainant. He did not apparently coerce her into selling the property to him. He did not cheat her, for he has been tried for that offence and acquitted. He was not enabled to purchase the property owing to his position as Punti Bewa's criminal agent, so I cannot see why he should be held to be her constructive trustee. The case of Kishen Ram Datt v. Mumtaj Ali Khan, cited by the Appellant's pleader, would not seem to warrant such a conclusion.

I would, therefore, dismiss this appeal with costs.

Woodroffe, J.:— The finding of the District Judge is that there was no “real sale” by the first Defendant, Punti Bewa, to the Plaintiff. It is not clear to me what is meant, there being no allegation that the Plaintiff is a benamdar for Punti Bewa. With reference, however, to that portion of the finding, which states that there was no sale because the consideration was not paid, it is necessary to point out that it is not sufficient for the Defendant to establish that the sale to the Plaintiff was voidable at the option of his vendor. He would have to show that it was and is absolutely void, Lal Achal v. Raja Kazim(4).

Taking it however that there was a sale to the Plaintiff he got nothing by it as his vendor Punti Bewa had no title which in law was with Narain Khela, the heir of the last admitted full owner Panch Kowri and the vendor of the second Defendant.

It has been however argued (and this is the main question in the case) that assuming that the Plaintiff's vendor had no title — the second Defendant as having himself obtained possession of the property in suit from the Plaintiff's vendor is estopped from alleging that the latter had no title.

This is admittedly not a case of estoppel by misrepresentation which is dealt with by sec. 115 of the Evidence Act. If it is an estoppel at all, it is an estoppel by agreement.

Secs. 116 and 117 of that Act mention certain well-known forms of this kind of estoppel, viz., that of the tenant, the licensee, bailee and acceptor of a bill of exchange. The case does not come within any of these, though it has been argued in part on the analogy of the tenant's estoppel. It has however been correctly submitted that these sections are not exhaustive of the doctrine of estoppel by agreement. The case cited to us, Dalton v. Fitzgerald, is an instance of such an estoppel which is not provided for by the Act.

It has been pointed out by a text writer of the highest authority on the law of evidence that the Courts formerly through the phraseology and under the garb of “evidence” accomplished results which they now attain through a cautious reaching out of the principle of estoppel, the modern extensions of this doctrine broadening the law by a direct and open application of maxims of justice (Thayer's Evidence at the Common Law, 318). While there can be no estoppel by agreement where the justice of the case does not require it, such an estoppel may be found to exist where there is an agreement either express or to be implied from the conduct of the parties to, or the nature of, the transaction itself which justice requires should be enforced. I quite agree with what was said by Dr. Rash Behari Ghose that such matters must be dealt with on the broad ground of legal principle irrespective of whether a reported decision in point may or may not be found. The question in each case is: Is there a misrepresentation or is there an agreement, as the case may be, on which an estoppel may be justly founded? The instances cited are all cases of implied agreements. As has been well said some transactions there are which are so obviously based on a conventional state of facts that for that very reason the parties never in practice come to any express agreement about them at all and the estoppel is nothing but the carrying out of what the parties as honest men must have intended if they thought about the matter at all at the time they made their bargain. (Cababe, Estoppel, 12, 21). The parties are deemed to have dealt with one another on the basis of their rights being regulated by a conventional state of facts. The tenant and licensee and bailee obtaining possession are taken to accept it upon the terms that they will not dispute the title of him who gave it to them and without whose permission they would not have got it. The act of acceptance of a bill amounts to an undertaking to pay to the order of the drawer. Though all are instances of estoppel by agreement the precise terms of the agreement and therefore of the estoppel may vary according to the nature of the particular transaction in each case. Another instance of such an estoppel is that which has been mainly relied on in the argument, viz., the estoppel on a person taking under an instrument whether it be a testament or a deed inter vivos, of which the case of Dalton v. Fitzgerald is an example. This decision is an application of the rule of which Board v. Board(5) is a leading case. It is an instance of a particular form of estoppel by agreement. The principle of the rule in such cases is this, that where property is taken under an instrument and the taking possession is in accordance with a right which would not have been granted except upon the understanding that the possessor should not dispute the title of him under whom the possession was derived, there is an estoppel (Bigelow on Estoppel, 5th Ed., 554). But the circumstances must raise such an understanding before there can be an estoppel. Such an understanding will be found to be implied in cases where as in Dalton v. Fitzgerald and kindred cases several persons take limited interests under the same instrument. In that case the person to whom, say, the first estate is given, enters into possession on the footing that the several estates created by the instrument are to take effect as directed by it. The rule which, as all true rules, is based on good sense and justice, has sometimes been dealt with as a part of the doctrine of election and coming under the prohibition against the adoption of inconsistent positions. A party cannot both approbate and reprobate. He cannot say that a document is valid to enable him to take a benefit under it but is invalid as regards the interests of those in remainder who claim under the same instrument. The case of Paine v. Jones, cited by the learned pleader for the Respondent, is not in my opinion in conflict with either Board v. Board or the later decisions, for the widow in that case had no title under the Will. The question whether the fact that she believed that she had such a title when she entered into possession, affected the position [a matter which is dealt with in the judgment of Lindley, L.J, in Dalton v. Fitzgerald] need not be now discussed.

If the present case be tested on the principles stated it will be found that there can be no estoppel. Where and what is the agreement on which the estoppel is to rest? It is obvious as said by Paige, J., in Averill v. Wilson(6), that no relation of landlord and tenant, not even in a qualified form, exists between a grantor and grantee. On the execution of the conveyance the vendor's title and right to possession is extinguished. The vendee acquires the property for himself and he is under no obligation to maintain the title of the vendor. The former has the right (as was done in this case) to fortify his title by the purchase of any outstanding title which may protect his possession. Again, as was held by Bronson, J, in Osterhout v. Shoemaker(7) a tenant cannot question his landlord's title but a grantee in fee may do so. The possession is absolutely given up. It is not a case of permissive occupation. The possession is in the sole right of the grantee. There is therefore, he says, no estoppel where the occupant is not under an obligation, express or implied that he will at some time or in some event surrender the possession. The grantee in fee does not receive the possession under any agreement express or implied that he will ever give it up. He takes the land to hold for himself and to dispose of it at pleasure. In this case the second Defendant is such a grantee and as there was no enjoyment by permission there can be no such estoppel as is raised from the existence of such enjoyment.

Lastly, the case of Dalton v. Fitzgerald does not apply. It is not merely that there are differences between that case and this. There are nearly always differences as was said by Lord Blackburn as regards analogies. Clark v. Adie(8). The case under discussion was one of a particular form of estoppel by agreement. But such an agreement is not to be found in this case in which the question is whether any agreement can be found on which an estoppel can rest. There can be no such agreement as raised the estoppel in that case where as here the party takes solely and absolutely an estate under the instrument. This is not a case of several parties claiming under the same Instrument. The principle of the decision cited is therefore inapplicable. It is true that the Plaintiff now and the second Defendant formerly claimed under the same person. But they each claimed an absolute estate under different instruments. But further the second Defendant no longer claims under the Plaintiff's vendor, but under the outstanding title of Narain Khela which he purchased. The parties neither claim under the same instrument nor under the same person. As pointed out in Bigelow on Estoppel (p. 358), with certain exceptions there noted, a grantee is not estopped to deny the title of his grantor and it is not broadly true to say (Ed. 346) that when two persons trace title to the same grantor each is estopped against the other though it may be, as in such a case as that of Dalton v. Fitzgerald, that if a grantee assert no other right or title than that from a common grantor he will be precluded as against other grantees under the same instrument from denying that his grantor had title when he conveyed.

In the present case there was and could not have been any agreement between the parties on which any such estoppel as is argued for can be founded. The first Defendant believed she was giving and the second Defendant believed that he was accepting an absolute title and no rights in favour of the vendor or of any third part were or could have been contemplated at the time.

The questions which arise between the second Defendant and his vendor are unconnected with any estoppel. Whether he obtained his conveyance through undue influence, abuse of fiduciary relation, fraud, misrepresentation, and without payment of consideration as alleged, are wholly different matters from, though they are mixed up with, the plea of estoppel in the grounds of appeal. These are issues arising directly between the second Defendant and his vendor which should have formed the subject-matter of a separate suit between them. If established they would have been grounds for setting aside the conveyance in which case the vendor might have disposed of the land to the Plaintiff. In such suit she might have raised the point (though with what success it is unnecessary to consider) that the second Defendant was a trustee for her in respect of the outstanding title he had acquired. The vendor of the second Defendant has not sued for either of these purposes. The suit is by her other vendee who does not seek any relief by way of setting aside the conveyance assuming, which it is not necessary to consider, that he could have been given such relief. The suit is in my opinion misconceived. Whatever may be said as to the merits, were this a suit between the Defendants, this case must be regarded as what it is, viz., a suit between two rival vendees of the first Defendant.

I agree that the appeal must be dismissed on the ground that the Plaintiff's vendor had no tide and that the second Defendant is not estopped from raising that defence. As regards the conduct of the muktear with which I am not satisfied and upon which a reference has been made by the District Judge, I have dealt with this matter in a separate judgment.

[In the Reference (No. 9 of 1905) their Lordships passed the following judgments:—

Rampini, J.:— This is a reference to this Court by the Judge of the 24 Pergunnahs under sec. 13 of Act XVIII of 1879. The Judge is of opinion that a mukhtear named Sarbessur Chandra Chander has been guilty of unfair and unprofessional conduct in inducing a client of his, Punti Bewa to make over to him a very valuable piece of land at a very inadequate price. For the reasons assigned in my judgment in the Civil appeal, in his judgment in which the Judge has recorded his reasons for making this reference, I do not think that the mukhtear has rendered himself liable to the penal provisions of sec. 13 of the Legal Practitioners Act.

I would therefore discharge the reference.

Woodroffe, J.:— I think that the conduct of the mukhtear was unprofessional. He was Punti Bewa's mukhtear and in my opinion it makes no difference that he was not acting as such in respect of the land purchased by him or what the purposes of his engagements were or whether his client was complainant or accused in the matter in which the mukhtear acted. Conduct however may be unprofessional without being criminal or dishonest so as to justify the Court taking action under the Legal Practitioners Act. I am myself not satisfied with the mukhtear's conduct and desire to say nothing which may prejudice any action which his client may take against him. I think however that as there has already been an enquiry in a criminal trial in which the mukhtear has been acquitted there is no necessity for any further enquiry at present or for taking present action against the mukhtear on this reference which I agree should be discharged.]

N.G

Appeal dismissed.