JUDGMENT
Narayan, J.
1. This is a plaintiff’s appeal arising out of a suit for recovery of possession of is bighas 5 kathas 9 dhors of land.
2. The plaintiff claims to be the mahanth of an asthal situate at Goldenganj in the district of Saran, and the land in suit is said to be a property attached to that asthal. The predecessor of the plaintiff was one Mahanth Deo Narayan Gir who, on 9th October 1914, executed a mukarran istamrari patta with regard to this land in favour of the defendants, and the contention of the plaintiff is that this document was without any consideration, and that the property that was given in lease by virtue of the document being a shivottar lakhraj property belonging to the asthal, is inalienable, and could not be transferred by the mahanth. The plaintiff succeeded Mahanth Deo Narayan Gir as the mahanth after his death, and accepted rent with regard to the lands in suit from the defendants, but his allegation is that, when he accepted the rent, he was ignorant of the real state of things and the real character of the lands. The present suit was instituted on 27th August 1913, and the plaintiff has prayed for recovery of possession with mesne profits.
3. The defendants pleaded in defence that the suit was barred according to the rules of estoppel and acquiescence, and that the lease, having been executed for consideration and legal necessity was binding on the asthal and the present plaintiff. It was further contended that the disputed land had been the personal property of the mahanth.
4. The learned Subordinate Judge dismissed the plaintiff’s claim only on the ground that he had accepted rent for the lands in question from the defendants. The other points were decided in the plaintiff’s favour, and against the findings of the learned Subordinate Judge on those points, the respondents have preferred a cross-objection.
5. It is admitted that the plaintiff has realised rent for these lands from the defendants. In para. 9 of the plaint, the plaintiff has stated that, in ignorance of the real state of things, he accepted rent for the suit lands from the defendants. This statement in the plaint conclusively shows that the plaintiff accepted rent from the defendants with regard to these lands and with regard to no other land. The defendants have produced two rent receipts (Exs. A and B), one money order receipt (EX. c) and a letter (EX. j) in the signature of the plaintiff for proving that the plaintiff has recognised them as the tenants of the lands. The letter (EX. J) is an important document in this case, because through this letter the plaintiff enquired from the defendants, after a certain payment had been made, in respect of what years those payments had been made, and he further asked them to have the account adjusted. It appears that, after Rs. 44 had been paid as rent, this letter was sent by the plaintiff to the defendants. The contents of this letter militate against the version of the plaintiff that he did not know for which lands the rent had been paid. Apart from the statement made in para. 9 of the plaint to which I have already referred, this letter further shows that the plaintiff was not at all in doubt as to the lands in respect of which rent had been paid to him, If the plaintiff did not know for what lands the rent had been paid, he would not have demanded an adjustment of account, and the first question which he would have put to the defendants was for what lands the payment had been made. The plaintiff is a man sufficiently advanced in age, and, though he may not have received much of education, he must be deemed to be a man possessing ordinary common sense. He would not have blindly signed the latter nor would he have received the cent unless he was sure that there was some land for which the defendants were to pay him rent. In the money order form, Ex. C, the Khata numbers of the lands in question are mentioned, and, though the learned Advocate General has made a point out of the manner in which the khatas have been described in the money order form, I think it was easy for the plaintiff to understand that the payment had been made to him with regard to Khatas Nos. 341 and 324. The lands in suit are situate in villages Jagdishpur Baruari and Keotsa, and, while 11 bighas 19 kathas lie in village Jagdispur Baruari, about 3 bighas 6 kathas 9 dhurs lie in village Keotsa, The Baruari lands are recorded in Khata No, 324, and the Keotsa lands are recorded in Khata No. 341 and, if, in the money order receipt the two khatas were mentioned, the plaintiff was able to know that the rent for these lands has been paid to him. But in the money order receipt, instead of mentioning the numbers of the two khatas separately, the writer has describad them as follows. “Khatian 341/324 raiyati”. Between the printed words “khatian” and “raiyati”, there was very little space left, and it is apparent that, instead of writing the two khata numbers separately, the writer mentioned the two khatas in the manner indicated above. According to neither party’s case, there was any khata known as khata No. 341/324, and, because the statement in the plaint shows that neither party was in doubt as to the identity of the land, it is obvious that, when the plaintiff received the money, ha clearly understood that the rent for khatas Nos. 341 and 324 had been paid to him. Not only from the plaint but also from the plaintiff’s evidence it is clear that he knew these lands from before. He admits that the disputed property is the only property of the math in the two villages Jagdishpur Baruari and Keotsa, and that, when Rain Gir was the mahanth, he used to go with him to the two villages for taking the produce. It is fully established by his evidence that he was well acquainted with these lands, because he says that he knows the lands “since he accompanied Rain Gir”. Evidently because he knew the lands, be did not enquire when the first payment was made to him in respect of which lands the payment had been made. It appears that one year after the defendants had made the first payment they made the second payment, and even on the second occasion he did not enquire from the defendants in respect of which lands they had made the payment. The third payment, according to him, was made about two years later, and even then, he says, he did not enquire in respect of which lands the payment had been made. He could not pocket the money without caring to know on what account the payments were being made. The learned Advocate-General argued that, because the description of the lauds as given in the money order receipt is incorrect and because the lands have not been described in the other receipts, the plaintiff must be deemed to be ignorant of the real state of things when the payment was made to him. This argument has got no substance. I have already said that the description given in the money order receipt was sufficient to enable the plaintiff to know that rent of khatas 841 and 324 was being paid to him. Moreover in para. 9 of the plaint, it is stated that
“since the year 1938, when the plaintiff on enquiry learnt of the nature of the lands in suit and of the unauthorised alienations by the said Mahanth Deo Narayan Gir, he declined to receive rent from the defendants, and demanded of the defendants to give up possession of the suit lands,”
From this statement in the plaint it is clear that in 1938, if not earlier than that, the plaintiff had come to know about the nature of the lands in suit. The receipt EX. b, however, shows that the account up to 9th Jeth 1346 corresponding to 12th May 1939, was adjusted, and then a payment of Rs. 100 was made to the plaintiff. The receipt EX. c, shows that the account up to 10th Baisakh 1347 corresponding to 2nd May 1940, was settled, and then a payment of Rs. 140 was made to the plaintiff. These payments were, therefore, made after the plaintiff had come to know about the nature of the lands. Certainly, when these payments were made, the plaintiff was fully aware about the character and the nature of the lands. It cannot, therefore, be said that he accepted the payments under a mistaken belief. The learned Advocate-General’s argument that the principle of estoppel or acquiescence cannot be applied in this case because the mahanth did not know that this property was a debottar property cannot, in the circumstances, be accepted. The further argument of the learned Advocate-General was that a man must not be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up these rights. This contention also must be overruled. The plaintiff is a disciple of Rain Gir who, it appears from the entry in Begister D, was mahanth up till the year 1904, and I have already referred to the plaintiff’s statement in his deposition which shows that during the time of Bain Gir he used to go to these lauds for realising their produce. It is no doubt true that the plaintiff was away from the math for about three or four decades, and had to go from place to place during this period. He, however, says that at Basukinath in the Santal Pargannas of this province he stayed for more than ten years. But, wherever he might have been, he had not lost ordinary common sense, nor is it possible to hold that he had complete loss of memory. The plaintiff himself does not say that he was so much engrossed in high religious practices that he bad forgotten all about worldly matters, and we cannot make out a case for him which he himself has not made out. The learned Advocate-General relied on certain observations of the Chancery Court in Willmott v. Barber, (1880) 15 Ch. D. 98: 43 L. T. 95) which had been cited by the Allahabad High Court in Jai Narayan v. Jafar Beg, 48 ALL. 353: (A.I.R. (13) 1936 ALL. 324). But the facts of those two cases bear no resemblance to the facts of this present case before us, and, in answer to the general observation in Willmott v. Barber, (1880-15 ch. D. 96: 43 D. T. 95) that the statement that the acquiescence which will deprive a man of his legal rights must amount to fraud is au abbreviated statement of a very true proposition, and that a man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to setup those rights, I would quote the following passage from the judgment of their Lordships of the Judicial Committee in Sarat Chander Dey v. Gopal Chunder Laha, 19 I. A. 203: (20 Cal. 296 P.C.) :
“the section of the Evidence Act by which the question must be determined does not make it a condition of estoppel resulting that the person who by his declaration or act has induced the belief on which another has acted was either committing or seeking to commit a fraud, or that he was acting with a full knowledge of the circumstances, and under no mistake or misapprehension. The Court is not warranted or entitled to add any such qualifying conditions to the language of the Act, but won if they had the power of thus virtually interpolating words in the statute which are not to be found there, their Lordships are clearly of opinion that there is neither principle nor authority for any such legal doctrine as would warrant this. The learned counsel who argued the present case on either aide were agreed that the terms of the Evidence Act did not enact an law in India anything different from the law of England on the subject of estoppel, and their Lordships entirely adopt that view. The law of this country gives no countenance to the doctrine that in order to create estoppel the person whose acts or declaration a induced another to act in a particular way must have been under no mistake himself, or must have acted with an intention to mislead or deceive. What the law and the Indian statute mainly regard is the position of the person who was induced to act, and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, by a representation made, or by conduct amounting to a representation, has induced him to act as be would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it. If the person who made the statement did so without fall knowledge, or under error, sibi imputet, it may, in the result, be unfortunate for him, but it would be unjust, even though he acted under error, to throw the consequence on the person who believed his statement and acted on it as it was intended be should do. The general principle is thus stated by the Lord Chancellor (Campbell), with the full concurrence of Lord Kingsdown, in the case of Cairneross v. Lorimer, (1860) 3 Macq. 829) : ‘The doctrine will apply, which is to be found, I believe, in the laws of all civilised nations, that if a man, either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of these who have so given faith to his words or to the fair inference to be drawn from his conduct,…. I am of opinion that, generally speaking, if a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that be consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it bad been done by his previous license.’ ”
6. This case is a direct authority in support of the proposition that it is quite unnecessary in order to create estoppel that the person whose acts or declarations induced another to act must have been under no mistake himself, or must have acted with an intention to mislead or deceive. In this particular case, the defendants are vehemently asserting that the property was the personal property of the mahanth who had made the settlement with them. Even if, however, the property is a secular property, the question remains whether it appertains to a private trust or a public trust. The line of distinction between a private and a public trust has been a fine one, and recently in an unreported, decision of this Court : First Appeal No. 274 of 1945 with First Appeal No. 275 of 1945 (Khub Narain Missir v. Ramchandra Narain Das), we had to discuss in what circumstances a trust can be regarded as a public trust. It was not easy for the defendants to understand that the property that was leased out to them was a public trust property, and that the mahanth could not grant a settlement which could endure beyond his life-time. Even if they had realised that the settlement could not endure beyond the life-time or the settlor, they might have thought that their position would be secure if the successor of the settlor recognised them as tenants. Therefore, if and when the present plaintiff granted them the receipt, the defendants were induced to believe that they bad been recognised as tenants. The defendants would not have made payment of rent to the plaintiff if the latter would not have assured them that as the successor of the settlor he was going to recognise them as tenants. The plaintiff, therefore, by his declaration or act induced a belief on which the defendants acted, and the principle of estoppel, acquiescence, ratification or waiver has got full application in this case. For the purposes of this case, the fine distinction between estoppel, acquiescence, ratification and waiver need not be pointed out. As Bigelow says in his book on Estoppel:
“It is common enough at present to speak of acquiescence and ratification as an estoppel. Neither the one nor the other, however, can be more than part of an estoppel, at best. An estoppel is certain, being a legal inference or conclusion arising from acts of conduct, while acquiescence and ratification, like waiver are but matters of fact might have been found otherwise. Besides, the most that acquiescence or ratification can do, and this either may under certain circumstances do, is to supply an element necessary to the estoppel and otherwise wanting, as e. g. knowledge of the facts at the time of making a misrepresentation. But each stands upon its own grounds, and must be made out in its own way, not in the way required by the ordinary estoppel by conduct.”
In this connection, I may quote the following passage from the decision of their Lordships of the Judicial Committee in Rangasami Goundan v. Nachiappa Goundan, 46 I. A. 72 : (A. I. R. (5) 1918 P.C. 196):
“No doubt there is another view which is not estoppel but is expressed by one learned Judge as ratification. It is scarcely that, though it might be hyper-criticism, to object to the use of the word. What it is based on is this. An alienation by a widow is not a void contract, it is only voidable (In this case we are concerned with an alienation by a mahanth.) Now, in all cases of voidable contracts there is a general equitable doctrine common to all systems, that he who has the right to complain must do so when the right of action is properly open to him and he knows the facts. If he did something which showed that he treated the alienation as good be would lose his right of complaint. In some cases it has been expressed as an election to hold the deed good.”
7. The plaintiff, therefore, had the option to adopt or elect after the death of his predecessor Deo Narain Gir, and in this case it is manifest that be elected to treat these defendants as tenants with regard to the lands. Of course, the covenant that the rent will be fixed for ever will not be binding on the plaintiff. It had been pointed out in several cases that
“to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty in the mahanth.” (Sea Abhiram Goswami v. Shyama Charan Nandi, 86 I. A. 14S : (36 Cal. 1003 P. C. ))
The recognition of the defendants’ tenancy right in the lands would, therefore, be no bar to the plaintiff’s seeking an enhancement of the rent that has been fixed by the mukarrari deed. The learned Advocate-General referred to another Privy Council decision in Mitra Sen Singh v. Janki Kuar, 51 I. A. 326 : (A. I. E. (11) 1924 P. C. 213); but, in my opinion, the facts of that case are clearly distinguishable from the facts of this present case. That was a case in which a person without title had obtained mutation of her name with regard to an under-proprietary right in a share in a village in Oudh. The decision proceeded upon the assumption that the lady had absolutely no title to the property. She remained in possession for about eight years, paying rent to the taluqdars, who gave her receipts but without enquiring whether she was entitled. In the circumstances, it was held that under Section 115, Evidence Act, 1872, the taluqdars, although estopped from claiming mesne profits for the years in respect of which they had received rent, were not estopped from denying that the defendant had an under-proprietary right, nor were they to be taken to have waived their own rights ; and that they were entitled to eject the defendant. It is obvious that in that case nobody could be in doubt on the question of title. The position is not so very easy in this present case. Here, there could be a legitimate doubt whether the property was a trust property or the personal property of the mahanth and, even if it was a trust property, whether the trust was a private trust or a public trust. In my opinion, there is no substance in the plaintiff’s claim, because it is well established in this case that, after having known all the facts and without any fraud, deception or misrepresentation having been practised on him, he accepted rent from the defendants, and granted them receipts. This appeal, therefore, fails. The Cross-objection preferred by the respondents is not maintainable ; but they could urge in this appeal that the findings on the other points should also have been in their favour. The cross-objection has, however, not been pressed, and would be dismissed as such.
8. The appeal as well as the cross-objection are dismissed but, in the circumstances of the case, without costs.
Sinha, J.
I agree.