INDOREINSTITUTE OFLAW

(Affiliated to D.A.V.V. & Bar Council of India)

B.B.A.L.L.B (HONS)

Project on

Law of Evidence

Topic: Doctrine of Estoppel

Submitted to: Asst. Prof. Dr. Bhanu Saxena

Submitted by: Vedant Agrawal

(VIII Sem. 4th Year)
 CERTIFICATE OF SUPERVISOR

This is to certify that work entitled “Doctrine of Estoppel” is a piece of

research work done by Vedant Agrawal under my supervision for the
degree of LAW of Indore Institute of Law College DAVV University, Indore
(M.P.) India

To the best of my knowledge and belief the research

 Embodies the work of candidate herself.

 Has duly been completed.
 Fulfils the requirement of ordinance related to B.A.LLB. degree of the
University and
 Is up to the standard both in respect of content and language for
being referred to the examiner.

Signature of the Supervisor

(With stamp)
 DECLARATION OF RESEARCHER

I hereby declare that the research paper titled Doctrine of Estoppel

submitted by me is based on actual and original work carried out be me.
Any reference to work done by any other person or institution or any
material obtained from other sources have been duly cited and referenced. I
further certify that the research paper has not been published or submitted
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INDORE INSTITUTE OF LAW.

Signature of the Corresponding Author

 ACKNOWLEDGMENT

Apart from the efforts of mine, the success of this assignment depends
largely on the encouragement of my Teacher and Mentors.

I take this opportunity to express my gratitude to people who has been

instrumental in the successful completion of this assignment as per
guidelines. I would like to show my heartily gratitude to Ass. Prof. Dr.
Bhanu Saxena.

I can’t say thank you enough for your tremendous support and
encouragement. Without your guidance this project would not have been
materialized. I display special thanks to the providing necessary
infrastructure.

THANKS ONCE AGAIN

Vedant Agrawal
B.B.A.LLB. (HONS.)
VIII SEM, 4TH YEAR
 INDEX

1. Introduction

2. Doctrine of Estoppel

3. Applicability of Doctrine of Estoppel

4. Estoppel under Evidence Act

5. Scope of Estoppel Under the Act

 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. 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.

(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 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 rights. 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. 2

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.

c. 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.

2
B.A. Shreedhar v. K.M. Mhmarireddy, AIR 2003 SC 578.
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.3 It belongs more properly to the province of the pure procedure
and is so dealt with in the Indian legislation. 4 Res judicata is an estoppel by
judgment.5 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
3
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;
4
See sections 11-14, Civil Procedure Code; See also secs. 40-44, Evidence Act, which deal with the relevancy
of judgments.
5
Bhagwati Prasad Sah v. Radha Kishun Seth, AIR 1950 P 354.
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. 6

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.7 Estoppel by res judicata extends also to matters of
admission fundamental to the decision. 8 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.9

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:

6
Kali Dayal v. Umesh Prasad, 65 IC 266 (268).
7
Allahbax Pindex v. Nusserwanji, 164 IC 43
8
Gouinda Rao (in re:), AIR 1958 Mys 150.
9
Sailendra Narayan Bhanja Deo v. State, 1956 346; South American & Mexican co. (in re:), 1895 (1) Ch 37;
Kinch v. Walcott, 1920 AC 482.
In Dawsons Bank v Nippin Mekawa 10 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.

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
10
(1935) 37 BOMLR 544
of action, it is a rule of evidence, waiver is contractual and may constituted a
cause of action.”11

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. 12 The tendency in
modern times is, to treat estoppel by deed as resting upon contract and as
merely a form of estoppel by representation. 13 The doctrine of estoppel by
deed in its technical sense cannot be said to exist in India. 14 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. 15 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.

III. ESTOPPEL BY MATTERS IN PAIIS

"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". 16

11
‘Doctrine of Waiver and Constitution of India’, available at
http://www.desikanoon.co.in/2014/05/constitutional-law-doctrine-of-waiver.html
12
Supra 6, at 15.
13
Id.
14
D. Johnstone v. Gopal Singh, 133 IC 628; Lachhman Mal v. Munshi Mahton, 1933 P 708 (2) 711.
15
Section 31 and 115, INDIAN EVIDENCE ACT 1872.
16
2 BLACKSTONES'S COMMENTARIES, at pg no. 294
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.17 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

17
West Punjab Government v. Akbar Ali, PLD 1952 L 430.
bill of excha nge, 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”.18

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”.

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.19

In Pickard v. Sears20, 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

18
Section 115, Indian Evidence Act, 1872
19
M. Morir, Textbook on theLaw of Evidence (2011), at pg 323.
20
Pickard v. Sears, (1837) 6 Ad &EL 469.
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 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 property (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 beginning of the tenancy, a title to such
immovable property.

2. Licensee of a person in possession (Section 116)

No person who came upon immovable property by the licence of the person
in possession 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 authority 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 licensee 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 licence. But, if a bailee 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. State21,
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.
Thus where the acquittal order of a Magistrate on a 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 Patel 22, the Supreme Court

analysed the scope of S. 115 of the Act, and laid down that the following
21
Mohan v. State, AIR 1968 SC 1281.
22
[(1982) 1 S.C.C. 223 ],
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 Anr 23, the
court made the following observation with regards to the principle of
estoppel concerning Section 115 of the Indian Evidence Act, 1872-

“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.”

23
R.S. Madanappa And Ors v. Chandramma And Anr., 1965 AIR 1812
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.24, 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.”

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.”

24
(1880) ILR 5 Cal 669
 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 estoppeled 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