It has already been noted that under the Evidence Act, there are certain facts which need not be proved and there are some facts which cannot be proved because the Evidence Act, would not allow evidence of such facts. An estoppel is a principle, whereby a party is precluded from denying the existence of some state of facts which has formerly admitted. The foundation of the doctrine is that a person cannot approbate and reprobate at the same time; Purshottam v. Bhagwat Sharan, MANU/MP/0524/2002 : AIR 2003 MP 128. Under Indian Evidence Act, sections 115 to 117 based on the principle what is called "doctrine of estoppel".
Section 115 of the Act provides that:
115. Estoppel.-
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.
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.
Section 115 lays down that when one person has, either in word or by conduct, intentionally caused a person to believe to a thing to be true and to act upon such belief or to alter his position, neither he nor his representative in any suit or proceeding will be allowed to say that the representation was false. 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.
Coke, who is the earliest and highest authority on the subject of estoppel and whose every word on the subject is persistently treasured and repeated in text-book, and judgment after judgment, down to the present day, classified estoppels into three kinds, viz., (i) estoppel by matter of record; (ii) estoppel by matter in writing; and (iii) estoppel by matter in pais. The first two are sometimes referred to as technical estoppels as distinguished from acquirable estoppels or estoppel in paiis or pais.
The main ingredients of estoppel as defined in section 115 i.e., estoppel in paiis are:
(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.
The following eight conditions must be satisfied to bring a case within the scope of estoppel as defined in section 115; Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, MANU/SC/0353/1981 : (1982) 1 SCC 223: AIR 1982 SC 121: 1982 UJ (SC) 120: 1982 All LR 108: 1982 (1) 23 Guj LR 325: 1982 Mah LR (SC) 108: 1982 BBCJ (SC) 119:
(i)There must have been a representation by a person to another person, which 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, etc., 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, can avail of the doctrine. The burden of proving estoppel lies on such person.
The representation to form the basis of an estoppel may be made either by (i) statement or by (ii) conduct and conduct includes negligence. Certain general propositions are, however, applicable whatever manner the representation may be made.
The focus of law of estoppel is the position in law of party who is induced to act. Thus a person who is estopped (i.e., person making the representation) may not have intention to deceive and may himself be acting under mistake or apprehension. The estoppel with nonetheless operate in such cases also; Surat Chunder Dey v. Gopal Chander Laha, (1892) 19 IA 203.
A representation may also arise from an "omission" to do an act which one's duty requires one to do. An estoppel will arise when the failure to perform one's duty has misled another and also the duty should be a kind of legal obligation. In Mercantile Bank of India Ltd. v. Central Bank of India Ltd., (1938) AC 287; an omission to stamp the receipts was held sufficient to create an estoppel. Estoppel by negligence is based on the existence of a duty which the person estopped is owing to the person led into the wrong belief or to the general public of whom the person in one.
Estoppel by conduct may be active or passive. Estoppel by silence or acquiescence arises only when there is a duty to speak or disclose.
The condition necessary to create an estoppel is that the plaintiff altered his position on the basis of the representation and he would suffer a loss if the representor is allowed to resile from his statement. Detriment is a prerequisite of actionable promissory estoppel. Thus, a mere statement of a person that he would not assert his rights does not create an estoppel unless it is intended to be acted upon and is in fact acted upon; Dr. Sida Nitinkumar Laxmankumar Laxmanbhai v. Gujarat University, MANU/GJ/0172/1991 : AIR 1991 Guj 43: 1990 (2) Guj LH 471: 1990 (2) Guj LR 808: 1990 (6) Serv LR 551.
Where a Government license was granted to a person to establish saw mill and he spent huge sum of money acting on the grant and the Government subsequently changed policy refusing to grant any further licences, the Government was held bound to grant that particular licence, though the policy may be revised for the future; Jyoti Das v. State of Assam, MANU/GH/0007/1990 : AIR 1990 Gau 24: (1989) 1 Gua LR 63.
Estoppel is a rule of equity. That rule has gained new dimensions in recent years with the recognition of an equitable doctrine of "Promissory Estoppel" by the Court in this country as well as England.
The doctrine was explained by the Court in the following terms "where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word."
The development of such a principle was easy in Britain and USA, where estoppel is a rule of equity, but in India, it is a rule of law embodied in
section 115, Evidence Act and terms of the section must be strictly complied with.
The concept of promissory estoppel differs from concept of estoppel as contained in section 115 in that representation in the latter is to an existing fact, while the former relates to a representation of future intention. But it has been accepted by the Supreme Court as "advancing the cause of justice".
A mere promise to make a gift will not create an estoppel. It would require a clear and unequivocal promise to import the doctrine into a matter. A leading institution intimated the sanction of a loan with a remark that it did not constitute a commitment on the part of the institution. Held there was no promise to found the doctrine of promissory estoppel; Rabisankar Choudhury v. Orissa State Financial Corporation, MANU/OR/0025/1992 : AIR 1992 Ori 93: 1991 (72) Cut LT 185.
The doctrine of promissory estoppel would be applicable where a representation has been made by the State in exercise of its power to exempt or abolish a commodity as taxable commodity. Such promise, however, must be made by the persons who have the power to implement the representation; Tata Iron & Steel Co. Ltd. v. State of Jharkhand, MANU/SC/0237/2005 : AIR 2005 SC 2871: 2005 AIR SCW 1781: 2005 (2) BLJR 1168: 2005 (2) JCR SC 235: JT 2005 (3) SC 582: (2005) 4 SCC 272: 2005 (4) SCJ 92: 2005 (5) SLT 121: (2005) 3 SCALE 431: 2005 (3) Supreme 199.
A man should keep his word. All the more so when the promise is a bare promise but is made with the intention that the other party should act upon it. Just as a contract is different from tort and from estoppel, so also in the sphere now under discussion premises may give rise to a different equity from another conduct.1
The alteration of position by the party is the only indispensable requirement of the doctrine of promissory estoppel. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel; Delhi Cloth and General Mills Ltd. v. Union of India, MANU/SC/0031/1987 : AIR 1987 SC 2414: JT 1987 (5) SC 35: 1987 (3) SCJ 328: (1987) 2 Cur CC 983. The plea is not maintainable in writ for first time; Pramodbhai Bhulabhai Desai v. Officer on Special Duty No. 2, (Land Acquisition), Ahmedabad, MANU/GJ/0068/1989 : AIR 1989 Guj 187: (1989) 30 Guj LR 194.
The principles of promissory estoppel attracted in the case of allotment of alternative plot to petitioner for land acquired from him. Building as per approved plan also put up deprivation by withdrawal of recommendation without opportunity and compensation was illegal; Subhash Chandra Goel v. Secretary, Delhi Development Authority, Vikas Minar, I.P. Estate, New Delhi, AIR 1985 Del 466.
There are various exceptions to the doctrine of estoppel:-
(1)No estoppel against a minor:-Where a minor represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with him, then in an action founded on contract, the infant is not estopped from setting up infancy as a plea. However, equity
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1. Lord Denning: In his Article `Recent Developments in the Doctrine of Consideration', (Modern Law Review,
Vol. 15, p. 5.
demands that he should not retain a benefit which he had obtained by his fraudulent conduct.
(2)When true facts are known to both the parties:-Section 115 does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement (R.S. Maddanappa v. Chandramma, MANU/SC/0356/1965 : AIR 1965 SC 1812: (1965) 2 SCWR 644: 1966 (2) SCJ 310: (1965) 3 SCR 283).
(3)Fraud or negligence on the part of other party:-If the other party does not believe the representation but acts independently of such belief, or in cases where the person to whom representation is made is under a duty to make a further inquiry, the estoppel will not operate. Likewise, if there is a fraud on the party of the other party, which could not be detected by promisor with ordinary care, the estoppel will not operate.
(4)When both the parties plead estoppel:-If both the parties establish a case for application of estoppel, then it is as if the two estoppels cancel out and the Court will have to proceed as if there is no plea of estoppel on either side. Further, if both sides had laboured under a mistake however bona fide or genuine, the plea of estoppel may not be available.
(5)No estoppel on a point of law:-Estoppel refers only to a belief in a fact. If a person gives his opinion that law is such and such and another acts upon such belief, then there can be no estoppel against the former subsequently asserting that law is different. One cannot be estopped from challenging the effectiveness of something (e.g., partition deed) for want of law (e.g., registration). Representations under section 115 should be of facts not of law or opinion; Union of India v. K.S. Subramaninan, MANU/SC/0546/1988 : AIR 1989 SC 662: 1989 Lab IC 1005: JT 1988 (4) SC 681: (1989) 1 Cur LR 82: (1989) 1 Cur LT 98: (1989) 58 FLR 199: (1989) 1 LLN 310: (1989) 1 ATLT 299.
(6)No estoppel against statute/sovereign Acts:-A rule of law cannot be nullified by resorting the doctrine of estoppel. For example, where a minor has contracted by misrepresenting his age, he still can afterwards disclose his real age. It is a rule of law of contract that a minor is not competent to contract and that rule would be defeated if a minor not permitted to disclose his real age. Hence, there can be no estoppel against the provisions of a statute.
In R.S. Maddanappa v. Chandramma, MANU/SC/0356/1965 : AIR 1965 SC 1812: (1965) 2 SCWR 644: 1966 (2) SCJ 310: (1965) 3 SCR 283, in a suit for possession of plaintiff's half share of certain properties, a decree was passed in favour of the defendant No. 1 (brother of plaintiff) with respect to the other half share. In appeal by the other defendants, it was contended that defendant No. 1 was estopped from claiming half share (deceased), because:-
(i)he did not reply to a notice by the plaintiff asking him to join her in filing the suit,
(ii)he wrote a letter to his step mother disclaiming interest in suit property, and
(iii)he attested a will executed by his father disposing of suit properties.
The Supreme Court held that:-
(i)the conduct in not replying to notice does not mean there was implied admission (or acquiescence) that he had not interest in properties, justifying an inference of estoppel,
(ii)when the father (defedant No. 2) knew about true legal position that he was not the owner of properties and his possession was on behalf of plaintiff and defendant No. 1, the defendant No. 1's letter to step mother could not have created an erroneous or mistaken belief in father's mind about his title to the suit properties.
(iii)similarly, the reason of conduct of defendant No. 1 in attesting his father's will could not justify an inference of estoppel.
Thus, in this case, as the facts are known to both the parties, the doctrine of estopel cannot be invoked. Section 115 does not apply to a case where the statement relied upon is made to a person who knows the real facts and not misled by the untrue statement. Also, in the present case, there is no detriment to the other party by the actions of defendant No. 1.
In Sanatan Gauda v. Berhampur University, MANU/SC/0199/1990 : AIR 1990 SC 1075: JT 1990 (2) SC 57; the Appellant passed his M.A. Examination in July 1981 securing more than 40 per cent of the total marks. Although he was admitted to the final year law classes, his results for the pre-law and inter-law examination were not declared. Hence, the appellant approached the Orissa High Court by a writ petition challenging the non-declaration of his result. The writ petition was dismissed by the High Court. Against the said decision the appellant filed the present appeal. By ad interim order, the appellant was permitted to continue his final year law course and to appear in the examination of the said course.
Whether the appellant was eligible to be admitted to the law course?
In the present case the Apex Court observed that the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and intermediate law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examination that the University raised the objection to his so-called ineligibility to be admitted to the Law course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant's examination or from preventing him from pursuing his final year course.
We are of the view that the University is not justified in refusing to declare the appellant's results of the Pre-Law and Intermediate Law examinations. The appeal, therefore, succeeds. The respondent-University is directed to declare the said results as well as the result of the Final examination if the appellant has appeared for the same. The appeal is allowed accordingly.
In State of Rajasthan v. Mahaveer Oil Industries, MANU/SC/0292/1999 : AIR 1999 SC 2302: 1999 AIR SCW 2369: 1999 BRLJ 236: JT 1999 (3) SC 212: (1999) 4 SCC 357: 1999 (2) SCJ 306: 1999 (5) SRJ 308: 1999 (115) STC 29: (1999) 2 SCALE 708: 1999 (4) Supreme 322: 1999 (2) UJ (SC) 953; when new industry was set up on basis of Incentive Scheme from Government and by relying on promise of benefits held out by it, the Supreme Court held that the State Government was bound by the promise held out by it in such situation. But this does not preclude the State Government from withdrawing the benefit prospectively. Even during the period of Scheme, if the public interest, so requires. Even in the case the party had acted on promise if there is any supervening public interest which requires that the benefit be withdrawn or the same be modified that supervening public interest would prevail over promissory estoppel.
Sections 116 and 117 of the Evidence Act, are illustrative of the principle of estopel laid down in section 115. These two sections deal with estoppels in specific cases.
Section 116 of the Act, provides for estoppel of a tenant as against his landlord and of a licensee as against his licensor in the following words:
116. Estoppel of tenant; and of licensee of person in possession.-
No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
From the reading of this section it is clear that section 116 deals with estoppel:
(i)between a tenant and his landlord; and
(ii)licensee and licensor.
Tenant cannot deny the title of landlord: "A tenant may not dispute the right of his landlord saying that he had nothing in the property". The section provides that a person who comes into an immovable property taking possession from a person whom he accepts as the landlord, is not permitted to say as against his landlord that he had no title to the property at the commencement of the tenancy. The ground of the doctrine is that in as much as the parties have approved that they should stand in the relation of landlord and tenant, and the one accordingly receives possession from the other and enters premises, so long as he continues in possession, he cannot be heard to deny the State of facts which he had agreed shall be taken as the basis of the arrangement; in other words he cannot set up that the landlord had no legal title. A tenant cannot deny the right of the person from whom he took the tenancy.
In S.K. Sharma v. Mahesh Kumar Verma, MANU/SC/0804/2002 : AIR 2002 SC 3294: 2002 Cr LJ 4318: 2002 AIR SCW 3827: JT 2002 (7) SC 222: (2002) 7 SCC 505: 2002 (4) SCJ 343: 2002 (5) SLT 344: 2002 (9) SRJ 313: (2002) 6 SCALE 522: 2002 SCC (Cri) 1804: 2002 (6) Supreme 530: 2002 (2) UJ (SC) 1443; the respondent was a railway servant. He was allotted premises in question as official residence. While he was holding the post of chief relation officer, it was held by Supreme Court the provision of section 138 of Railway Act can be invoked for evicting respondent upon his retirement even though railway administration has no proof that property was belonging to it. Since the respondent was estopped from alleging title of railway administration over premises in question inview of section 116 of the Evidence Act.
In Rita Lal v. Raj Kumar Singh, MANU/SC/0813/2002 : AIR 2002 SC 3341: 2002 AIR SCW 3887: JT 2002 (7) SC 296: MANU/SC/0813/2002 : (2002) 7 SCC 614: 2002 (5) SLT 385: 2002 (9) SRJ 283: (2002) 6 SCALE 564: 2002 (6) Supreme 487; the rent note was proved to be signed by tenant. Tenant admitted the title of landlord in his disposition made on oath in earlier judicial proceeding of plea of tenant denying the title of landlord in eviction suit raised for seeking leave to defend does not amount to raising triable issue as he was estopped from raising the same. Tenant would not be entitled to leave to defend.
Section 117 of the Act, provides that,
117. Estoppel of acceptor of bill of exchange, bailee or licensee.-
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorese it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
Explanation 1.-The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Explanation 2.-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.
This section deals with further instances of estoppel by agreement. Under this section an acceptor of a bill of exchange cannot deny that the drawer had authority to draw such bill or to endorse it. But he may deny that the bill was really drawn. A bailee or licensee cannot deny that his bailor or licensor had, at the commencement of the bailment or licence, authority to make the bailment or grant the licence. But a bailee, if he delivers the goods bailed to a third person, may prove that such person had right to them as against the bailor.
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Estoppel |
Res judicata |
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1.Estoppel prevents a person from |
1.Res judicata prevents the jurisdiction |
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saying one thing at one time and |
on the subject-matter already decided |
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retreating from it another time. |
by competent Court on same issue, between same parties. |
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2.Estoppel is rule of equity. |
2.Res judicata is rule of legal procedure. |
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3.Estoppel is based on rule of equity,justice and good consciences. |
3.Res judicata is based on public policy. |
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4.Estoppel originates from |
4.The res judicata originates from |
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representation or conduct of theparty. |
decision of Court. |
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5.Estoppel prevents a person to rebut |
5.Res judicata prevents the court to |
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what has been represented by him. |
hear a case which has already been decided by court of competent jurisdiction. |
6.Estoppel shuts the mouth of parties. |
6.Res judicata shuts (prevents) jurisdiction of Court. |
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7.Rule of Estoppel is laid down under |
7.The rule regarding res judicata is laid |
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section 115 of Evidence Act, 1872. |
down under section 11 of C.P.C.1908. |
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8.Estoppel can be inferred from the |
8.Res judicata is claimed on basis of |
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conduct of the parties. |
previous decision of competent court. |
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Estoppel |
Waiver |
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1.Estoppel is a rule of evidence and does not form basis for instituting a suit. |
1.Waiver originates from contractual relationship and may give birth to occur of action. |
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2.The knowledge of reality or truth is not a factor or essential conditionfor claiming estoppel. |
2.In case of waiver real facts or truth is known to both the parties. |
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3.In some circumstances the acquiescence amounts to estoppel. |
3.In case of waiver same act or conduct is necessary together with acquiescence. |
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4.Estoppel is used as defence and not cause for bringing a suit. |
4.Waiver may be cause to give rise a right. |
'Estoppel' and 'presumption'-An estoppel is a personal disqualification laid upon a person under peculiar circumstances from proving particular facts, whereas a presumption is a rule that a particular inference is to be drawn from particular facts, whoever proves them. In presumption, evidence to rebut it can be given, while in estoppel, the party is estopped from denying the truth.
'Estoppel and 'Conclusive Proof'-When a fact is conclusively proved, it is so against all the world. Estoppel operates only as a personal disability. In both, however, the very same fact cannot be denied (irrebuttable)
'Estoppel' and 'Admission'-Though in both admissions and estoppels there are statements, an admission does not ripen into an estoppel unless the person to whom the representation is made believes it and acts upon such belief, whereas in the case of mere admission evidence can be given to show that the admission was wrongly made.
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