LAW OF EVIDENCE

RULE OF ESTOPPEL

SUBMITTED BY: SUBMITTED TO:

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher of Law of Evidence who
gave me the golden opportunity to do this wonderful project on the topic of Rule of Estoppel
which also helped me in doing a lot of Research and I came to know about so many new
things I am really thankful to her.

Secondly I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

Yours Sincerely
TABLE OF CONTENT
INDEX OF CASES
 I. INTRODUCTION

According to the doctrine of estoppel there are certain facts which the parties are prohibited
from proving, Estoppel is a principle of law by which a person is held bound by the
representation made by him or arising out of his conduct.

Black's Law Dictionary defines estoppel as a "bar or impediment raised by the law,
which precludes a man from alleging or from denying a certain fact or state of facts, in
consequence of his previous allegation or denial or conduct or admission, or in consequence
of a final adjudication of the matter in a court of law"1.

There is said to be an estoppels where a party is not allowed to say that a certain statement of
facts is untrue, whether in reality it is true or not. Estoppel, or “conclusion” as it is frequently
called by the elder authorities, may therefore be defined as a disability whereby a party is
precluded from alleging or proving legal proceeding that a fact is otherwise than it has been
made to appear by the matter giving rise to the disability.

1
Black’s law dictionary, 9th ed, pg no. 629
 DOCTRINE OF ESTOPPEL

If a person intentionally made a statement whether by act, omission or conduct make other

person believe that certain facts exist and the other person believe that certain facts exist and

the person upon the belief of such fact altered his position than the person who makes such

statement can’t retract from his statement.

The plea of estoppel is often closely connected with the plea of waiver, the object of both

being to ensure bona fides in day-to-day transactions.2 It is also related to the doctrines of

variation and election. It is applied in many areas of contract law, including insurance,

banking, and employment. In English law, the concept of legitimate expectation in the realm

of administrative law and judicial review is estoppel's counterpart in public law.

The doctrine of estoppels applies in cases affecting rights. Estoppel can be described as rule

of creating or defeating rights.

Though estoppels are described as merely rule of evidence it may have the effect of creating

substantive rights as against person stopped. Estoppel which enable a party against another

party to claim right of property which in fact he did not possess is described as estoppels by

negligence or by conduct or by representation or by holding out ostensible authority. Estoppel

may itself be foundation of right against the person stopped.3

(1) A trustee mortgaged the trust properties alleging that he was the owner of the

properties. The mortgagee, in good faith and without notice that the properties

belonged to the trust took the mortgage. He (the mortgagee) obtained a decree and the

properties were sold. The trustee subsequently filed a suit to recover the property from

the auction-purchaser on the ground that the properties were the trust properties and

2
Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180, 188
3
B.L. Shreedhar v. K.M. Mhmariredy, AIR 2003 SC 578.
 he had no power to mortgage them. It was held that the trustee was estopped from

saying that he was not the owner of the property though it might be true.

(2) Where a tenant, having only non-transferable interest in a holding, sells it alleging

that he has transferable right in it, he cannot be allowed, afterward to say that he had

no transferable interest in the property.

(3) A owned a plot measuring 3 Biswas. He mortgaged 1 Biswa of it to B. Subsequently

in execution of a money decree 2 Biswas of the land was put to auction and it was

purchased by C. The mortgagee B accepted a part of sale consideration towards his

mortgage money. Giving out by this conduct of his that the are mortgage to his was also

sold. Afterwards B sued C for the sale of 1 Biswa under mortgage. It was held that he was

stopped by his own conduct.

APPLICABILITY OF DOCTRINE OF ESTOPPEL

The doctrine of estoppels applies in cases affecting rughts. Estoppel can be described as

rule of creating or defeating rights.

Though estoppel is described as merely rule of evidence it may have the effect of creating

substantive rights as against person stopped. Estoppel which enable a party against

another party to claim right of property which in fact he did not possess is described as

estoppels by negligence or by conduct or by representation or by holding out ostensible

authority. Estoppel may itself be foundation of right as against the person stopped.4

Jurisprudential Aspect

 In case of Shiv Shyam v. State of Uttar Pradesh court held that no one can blow hot
and cold in one and same breath.

4
B.A. Shreedhar v. K.M. Mhmarireddy, AIR 2003 SC 578.
  In case of Purushottam v. Bhagwat Sharan, the principle was laid that no one is
allowed to approbate and reprobate simultaneously.
 “Allegans Corteria non-est audindus” means that one who alleges contrary things
cannot be heard.

a. Nature of estoppel

Estoppel is often described as a rule of evidence but the whole concept is more correctly
viewed as a substantive rule of law.

b. Kind of estoppels.

Estoppel properly so called is of four kinds, namely-

(1) Estoppel by matter of record or quasi-record,

(2) Estoppel by deed,
(3) Estoppel in Pais i.e. estoppels by conduct
(4) Estoppel by election.

Essentials of the rule of Estoppel

(1) There must be intentional representation.

(2) The other person should have been made believe on the statement to be true and acted
upon.
(3) Such person must alter his position to his detriment.

Representation may be by word i.e. by act or omission or by conduct.

The rule of estoppels shall be applied between the parties only and it is not synonymous to
conclusive proof.

“prsumto jurs de jure” means that where a fact presumed take to be true not against the world
but against the particular party or particular fact.

Estoppel doesn’t mean that the fact which was represented is proved conclusively for the all
purposes rather it is just that between the party concerned and their representatives. The fact
represented to be true cannot disprove by giving evidence what is prohibited is the right to
give evidence to deny the truthfulness of fact.

1) Estoppel by Conduct in Pais

It may arise out of intentional representation. The representation may consist of a declaration
or omission. The rule of estoppels shall not apply to the party whom the representation was
made was aware of the truth.

2) Estoppel by Records or Quasi-Record

Decision of the court of record operate as a estoppels. Decision by some others court may
operate as a Quasi-Record. Estoppel by record and Quasi-record has been incorporated in
section 11 of CPC and it has been given a name as res-judicata. Section 300 of the CrPC also
talks about the rule of estoppels.

3) Estoppel by deed

When a party to a deed are bound by the contract in the deed and parties cannot retract from
the argument made in a deed. It is necessary that the deed must be:-

a) Duly executed.
b) Signed by the party.
c) Registered.
d) Duly witnessed.

Other form of estoppels - Promissory Estoppel.

Doctrine of promissory Estoppel gave new dimenstion and it is based upon the equitable
doctrine. It is recognised under both Indian as well, as English law. Promissory Estoppel
means if a person make a promise in expectation that it should be acted upon in future with
intent to create a legal relationship and once the other party has taken at his word and acted
upon, then the one who gave such promise cannot offer allow to revert their previous relation.

In Estoppel the representation is of existing fact while in the Promissory Estoppel

representation is of future intention. It need not to be confined the limitation of Estoppel, in
strict sense.
 I. Estoppel by Matter of Record or Estoppel by Res Judicata

Estoppel by record means nothing more generally than that the matter is res Judicata.5 It
belongs more properly to the province of the pure procedure and is so dealt with in the Indian
legislation.6 Res judicata is an estoppel by judgment.7 It embraces all those rules, the
common characteristic of which is that final judicial decision of a tribunal of competent
jurisdiction, once pronounced between parties litigant, cannot be contradicted by anyone, as
against any other of such parties, in any subsequent litigation between the same parties
respecting the same subject-matter.

There is a difference in the principles upon which the doctrines of res judicata and estoppel
by representation are based. Res judicata in this country is founded on the principle that there
should be an end to litigation as to any issue between the parties when once that issue has
been directly determined between them by a Court of competent jurisdiction, and it affects
not only the original parties but all others afterwards claiming under them and litigating under
the same title. It bars fresh litigation at the outset. Estoppel by representation is a rule of
evidence based on the principle that a man, who by his acts or statements has induced another
to believe a thing to be true, should not afterwards be heard to deny the truth of that thing to
the prejudice of the other who acted upon the belief so induced.8

Res judicata ousts the jurisdiction of the Court, while estoppel merely shuts the mouth of a
party.

Estoppel does not forces and effect of judgment depend on

(1) nature of proceedings

(2) forum on which it was pronounced

mean anything more than that a person shall not be allowed to say one thing at one time and
the opposite of it at another time while res judicata means nothing more than that a person
shall not be heard to say the same thing twice over.9 Estoppel by res judicata extends also to

5
Sanderhi Devrao Deshpande v. Devaji Shankar Deshpande, 1954 SC 82; Lal Khan v. Allah Ditto, PLD 1950 L
1915; Parma Nard v. Champa Lal, 1956 A 225;
6
See sections 11-14, Civil Procedure Code; See also secs. 40-44, Evidence Act, which deal with the relevancy
of judgments.
7
Bhagwati Prasad Sah v. Radha Kishun Seth, AIR 1950 P 354.
8
Kali Dayal v. Umesh Prasad, 65 IC 266 (268).
9
Allahbax Pindex v. Nusserwanji, 164 IC 43
matters of admission fundamental to the decision.10 A judgment by consent or default is as
effective an estoppel between the parties as a judgment whereby the Court exercises its mind
on a contested case.11

ESTOPPEL AND PRESUMPTION:

An estoppel is a personal disqualificate with a party and is prevented from denying the truth
of his declaration, “whereas a presumption is a rule that particular inference shall be drawn
from facts, whoever proves them.”

ESTOPPEL AND WAIVER:

In Dawsons Bank v Nippin Mekawa12 Lord Russell had made the distinction between an
estoppel and waiver:

“Estoppel and waiver are entirely different. Estoppel is not a cause of action. It may, assist a
plaintiff in enforcing a cause of action by preventing a defendant from denying the existence
of same facts essential to establish the cause of action; on the other hand, waiver is
contractual, and may, constitute a cause of action, it is an agreement to release or not to
assert a right; i.e. if an agent with an authority to make such an agreement on behalf of the
principal agrees to waive his principal’s right them the principal will be bound by the
contract; not by estoppel. There is no such thing as estoppel by waiver.”

Some shares were registered by the Company though presented after the period of two
months without any demour. In refusing to register remaining shares the company can be said
to have waived their right.

In an appointment of arbitrators it was established that the reference court had no jurisdiction
in matter of terms. It was held that inherent lack of jurisdiction cannot be cured by consent of
parties or waiver.

Waiver is an intentional relinquishment of a known right. It means abandonment of right and

may be either express or implied from conduct but its basic requirement is that it must be
intentional act. It signifies nothing more than an intention not to insist upon the right.

10
Gouinda Rao (in re:), AIR 1958 Mys 150.
11
Sailendra Narayan Bhanja Deo v. State, 1956 346; South American & Mexican co. (in re:), 1895 (1) Ch 37;
Kinch v. Walcott, 1920 AC 482.
12
(1935) 37 BOMLR 544
Waiver is generally created upon knowledge of all facts by both parties, whereas in estoppel
by representation, knowledge of facts by the representee destroys that estoppel.

In waiver there should be some clear and decisive act or conduct beyond mere silence. It may
arise from acquiescence. But in case of estoppel mere silence may give rise to an estoppel.

“The principle of waiver although is akin to the principle of estoppel, the difference between
the two, however, is that whereas estoppel is mear cause of action, it is a rule of evidence,
waiver is contractual and may constituted a cause of action.”13

The estoppel does not operate against statute, while in case of waiver, unless it involves the
public at large or the statutory requirement is in public interest a private person can waive it.
The benefit, claim or privilege which expect for such a waiver, the party would enjoy. Even
in a case if a plea is taken and evidence is not led it would amount to be a waiver.

II. ESTOPPEL BY DEED

The rule of estoppel binds the parties to the instrument and those claiming through them by
deed. An estoppel by deed is preclusion against the competent parties to a valid sealed
contract and their privies, to deny its force and effect by any evidence of inferior solemnity.14
The tendency in modern times is, to treat estoppel by deed as resting upon contract and as
merely a form of estoppel by representation.15 The doctrine of estoppel by deed in its
technical sense cannot be said to exist in India.16 In Indian law, a representation contained in
a document of however formal a character, being merely an admission, is not conclusive, and
does not operate as an estoppel, unless the party to whom the representation was made has
acted upon it and thus altered his position.17 A representation contained in a formal deed is
not clothed with any special sanctity in this country, except that in certain cases it excludes
oral evidence to the contrary.18

III. ESTOPPEL BY MATTERS IN PAIIS

13
‘Doctrine of Waiver and Constitution of India’, available at
http://www.desikanoon.co.in/2014/05/constitutional-law-doctrine-of-waiver.html
14
Supra 6, at 15.
15
Id.
16
D. Johnstone v. Gopal Singh, 133 IC 628; Lachhman Mal v. Munshi Mahton, 1933 P 708 (2) 711.
17
Section 31 and 115, INDIAN EVIDENCE ACT 1872.
18
Id, at s. 92.
"Estoppel by matters in Paiis" (also, pais) is defined by Blackstone as an "assurance
transacted between two or more private persons in pais, in the country, that, is, upon the very
spot to be transferred".19

Estoppel in paiis is said to arise, firstly, from agreement or- contract; secondly independently
of contract, from act or conduct of misrepresentation which has a change of position in
accordance with the real or apparent intentions of the party against whom the estoppel is
alleged.20 The Act deals with the subject of in pais in sections 115-117. The rules contained
in sections 116 and 117 are instances of the estoppel by contract. Other cases which have
been included under that designation will be found to fall within the purview of section 115,
which, however, primarily appears to refer to what is known as estoppel by representation.

ESTOPPEL UNDER INDIAN EVIDENCE ACT

The law for estoppel or the rule of exclusion of certain evidence under certain circumstances,
like between tenant and landlord, licensee of person in possession and licensor (s. 116), or as
between acceptor and drawer of a bill of exchange, as between Bailee and bailor and licensor
and license (s. 117). Estoppel is a procedure of proof.815

Section 115 of evidence act reads:

“When one person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing”.21

Illustration: “A intentionally and falsely leads B to believe that certain land belongs
to A, and thereby induces B to buy and pay for it; The land afterwards becomes the
property of A, and A seeks to set aside the sale on the ground that, at the time of the
sale, he had no title. He must not be allowed to prove his want of title”.22

19
2 BLACKSTONES'S COMMENTARIES, at pg no. 294
20
West Punjab Government v. Akbar Ali, PLD 1952 L 430.
21
Section 115, Indian Evidence Act, 1872
22
Id.
The doctrine embodied under this section is not a rule of equity, but is a rule of evidence
formulated and applied in courts of law.23

In Pickard v. Sears24, the mortgagee of the machinery permitted it to remain in the

possession of the mortgagor, against whom a judgment was executed. The machinery was
seized in execution, but although the mortgagee spoke to the judgment creditors attorney he
foolishly made no reference to the fact that machinery in which he had an interest had been
seized to pay another man’s debt, nor did he make any claim to the machinery for some time.
When he eventually did so, it was held that he might be estopped from denying that the
machinery was the debtor’s, as his conduct amounted to a willful representation to that effect.

PRINCIPLE:

The principle laid down in this section is that when a person has by his,— (i) declaration, (ii)
act, or (iii) omission intentionally caused or permitted another (a) to believe a thing to be true,
and (b) to act upon such belief, then neither he nor his representative shall not be allowed to
deny the truth of it. In short, the section means that when a person by his words or by his
conduct makes a representation to another that certain state of things is true and induces him
to act on that belief and when the other person relying upon the representation alter his
previous position, then the person making such representation would be estopped from
denying the truth of his previous representation.

Ingredients:

Following are ingredients of Section 115, viz.,—

1. There must be some representation.

2. The representation must be made with the intention to be acted upon.

3. The representation must have been acted upon.

4. Such action should have been detrimental to the interests of the person whom the
representation has been made.

The section does not apply where the statement relied upon is made to a person who
knows the true facts and is not misled by the untrue statement. There can be no estoppel if

23
M. Morir, Textbook on theLaw of Evidence (2011), at pg 323.
24
Pickard v. Sears, (1837) 6 Ad &EL 469.
true facts are known to both the parties. Therefore, if A knew the true facts, no estoppel
arises.

There are four сlasses of estoppel to be found in section 116 and 117 of the Act, viz., estoppel
of

1. Tenant (Section 116)

No tenant of immovable pro-perty (or person claiming through such tenant) can, during the
continuance of the tenancy, be permitted to deny that the land-lord of such tenant had, at the
begi-nning of the ten-ancy, a title to such immovable property.

2. Licensee of a person in posse-ssion (Section 116)

No person who came upon im-movable property by the licence of the person in po-ssession
thereof can deny that such person had a title to such possession at the time when such licence
was given.

3. Acceptor of a bill of exchange (Section 117)

No acceptor of a bill of exchange can deny that the drawer had au-thority to draw such bill or
to endorse it; but he may deny that the bill was really drawn by the person by whom it
purports to have been drawn.

4. Bailee or licensee (Section 117):

No bailee or lice-nsee can deny that his bailor or licensor had, at the time when the bailment
or license commenced, authority to make such bailment or grant such lice-nce. But, if a
bai-lee delivers the goods bailed to a person other than the bailor, he may prove that such
person had a right to them as against the bailor.

As per the stand taken by Supreme Court in the case of Mohan v. State25, the rule of issue
estoppel does not prohibit that evidence given at one trial against the accused cannot be given
in another trial for another offence.26 Thus where the acquittal order of a Magistrate on a

25
Mohan v. State, AIR 1968 SC 1281.
26
Id.
minor offence was set aside and the accused committed for trial on a major offence, the
principle of issue estoppel will not apply

SCOPE OF ESTOPPEL UNDER THE ACT:

In Chhaganlal Mehta v. Haribhai Patel27, the Supreme Court analysed the scope of
S. 115 of the Act, and laid down that the following eight conditions must be satisfied to bring
a case within the scope of estoppel, as defined in S. 115.

(i) There must have been a representation by a person (or his authorised agent) to another
person. Such a representation may be in any form — a declaration or an act or an omission.

(ii) Such representation must have been of the existence of a fact, and not of future promises
or intention.

(iii) The representation must have been meant to have been relied upon.

(iv) There must have been belief on the part of the other party in its truth.

(v) There must have been some action on the faith of that declaration, act or omission. In
other words, such declaration, act or omission must have actually caused the other person to
act on the faith of it, and to alter his position to his prejudice or detriment.

(vi) The misrepresentation or conduct or omission must have been the proximate cause of
leading the other party to act to his prejudice.

(vii) The person claiming the benefit of an estoppel must show that he was not aware of the
true state of things. There can be no estoppel if such a person was aware of the true state of
affairs or if he had means of such knowledge.

(viii) Only the person to whom the representation was made or for whom it was designed (or
his representative) can avail of the doctrine.

In the case of R.S. Madanappa and ors. v.. Chandramma and Anr28, the court made the
following observation with regards to the principle of estoppel concerning Section 115 of the
Indian Evidence Act, 1872-

27
[(1982) 1 S.C.C. 223 ],
28
R.S. Madanappa And Ors v. Chandramma And Anr., 1965 AIR 1812
“We doubt whether the court while determining whether the conduct of a particular party
amounts to an estoppel, could travel beyond the provisions of Section 115 of the Evidence
Act.”

The court denied to accept the contention that the law of estoppel by representation is not
confined to the provisions of Section 115 of the Evidence Act.

In the landmark judgement of Sourujmull v. Ganges Mfg. Co.29, the appellants in this case
contended that Sections from 115 to 117 as given in Chapter VIII of the Indian Evidence Act,
1872 lay down the only rules of estoppel which are now implemented under the force of law
in the then existing India under the British rule. They further contended that by virtue of
Section of the aforementioned Act, all rules and doctrines of the Evidence Law shall be
repealed except those that are in the Act itself. The court held the following opinion-

“The Courts here would then be debarred from entertaining any questions in the nature of
estoppel which did not come within the scope of Sections 115 to 117, however important
those questions might be to the due administration of the law.”30

They held that the argument becomes erroneous assumption that all rules of estoppel are also
rules of evidence.

But still, the Court recognized the principle of estoppel being a part of the Law of Evidence,
by stating-

“Where a man has made a representation to another of a particular fact or state of

circumstances, and has thereby wilfully induced that other to act upon that representation
and to alter his own previous position, he is estopped as against that person from proving
that the fact or state of circumstances was not true. In such a case the rule of estoppel
becomes so far a rule of evidence, that evidence is not admissible to disprove the fact or state
of circumstances which was represented to exist.”31

29
(1880) ILR 5 Cal 669
30
Id. at para 14.
31
Id. at para 15.
 CONCLUSION

'Estoppels' in the sense in which the term is used in English legal phraseology, are matter of
infinite variety, and are by no means confined to subjects which are dealt with in Chapter
VIII of The Indian Evidence Act. A man may be estoppled not only from giving particular
evidence, but from doing acts, or relying upon any particular arguments oil contention which
the rules of equity and good conscience prevent him from using as against his opponent.

A representation can be made by words or conduct. Although the representation must be clear
and unambiguous, a representation can be inferred from silence where there is a duty to speak
or from negligence where a duty of care has arisen. Under English law, estoppel by
representation of fact usually acts as a defense, though it may act in support of a cause of
action or counterclaim.

Estoppel was once regarded as a rule or branch of the law of evidence, but the better opinion,
and that which now prevails, is that it is more properly a branch of the substantive law.
Although in some respects it might be regarded as within the field of procedure. In any event,
however, it is customary to treat the subject to some extent in works on evidence, and it is
clearly within the scope of our plan to treat it so far as questions of evidence are concerned
when estoppel is involved as a particular issue in a case.
 BIBLIOGRAPHY

 The Doctrine Of Estoppel As A Rule Of Evidence: An Overview, Available at

http://ijldai.thelawbrigade.com/wp-content/uploads/2015/11/YuvrajShhaurya.pdf

 ‘Doctrine of Waiver and Constitution of India’, available at

http://www.desikanoon.co.in/2014/05/constitutional-law-doctrine-of-waiver.html

 http://www.step.org/proprietary-estoppel-looking-both-forward-and-back-after-

thorner-v-major

 Promissory Estoppel, available at http://www.legalserviceindia.com/article/l249-

Promissory-Estoppel.html

 M. Morir, Textbook on the Law of Evidence, 9th ed., 2011.

 Batuk Lal, The Law of Evidence, 12th ed., 2014.

 Dicey Morris & Collins on the Conflict of Laws, 14th ed. 2006