Law of Evidence Project On

Rules of Estoppel Under The Indian Evidence

Act and its exceptions

SUBMITTED TO
Dr. Mohd. Amir Khan
Assistant Professor
(FACULTY OF LAW OF EVIDENCE)

SUBMITTED BY
Sirshendu Mazumdar
B.A. LLB (HONS) STUDENT
SEMESTER- VII
ID- 013/2013/0951

Hidayatullah National Law University

Uparwara Post, Atal Nagar – 492002 (C.G.)

1
 DECLARATION

I, Sirshendu Mazumdar hereby declare that, the project work entitled, ‘Rule of estoppel under the
Indian Evidence Act and its exceptions’ submitted to H.N.L.U., Raipur is record of an original work
done by me under the able guidance of Dr. Mohd. Amir khan, Faculty Member, H.N.L.U.,
Raipur.

Sirshendu Mazumdar

Roll No.152

Batch XIII

Sem VII

24/11/2018

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 ACKNOWLEDGEMENTS

I am highly elated to carry out my research on the topic, ‘Rule of estoppel under the Indian
Evidence Act and its exceptions’. I would like to give my deepest regard to my course teacher
Dr. Mohd. Amir Khan, who held me with her immense advice, direction and valuable assistance,
which enabled me to march ahead with this topic. I would like to thank my friends, who gave me
their precious time for guidance and helped me a lot in completing my project by giving their
helpful suggestion and assistance. I would like thanks to my seniors for their valuable support. I
would also like to thank the library staff and computer lab staff of my university for their
valuable support and kind cooperation.

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 CONTENT

1. OBJECTIVE……………………………………………………………………….…….4

2. RESEARCH METHODOLOGY………………………………………………….……4

3. INTRODUCTION……………………………………………....……………………….5

4. MEANING OF CAPITAL PUNISHMENT…………...………………………………6

5. ARGUMENTS FOR THE RETENTION………………………….…………………...9

6. ARGUMENTS FOR THE ABOLITION……………………………………………..11

7. PRINCIPLE OF RAREST OF RARE………………………………………………..13

8. CONSTITUTIONAL VALIDITY OF SECTION 303……………………………….15
9. CONCLUSION………………………………………….…………………….………..17

10. BIBLIOGRAPHY……………………………………….……………………….……..18

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 TABLE OF CASES

First National Bank plc v Thompson ]1996] Ch 231………………………………………..

Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180…………………………….
Abdul Ghaffar Khan v. Ishtinq Ali, 1943 0 354; …………………………………………..
Kalyani sandaram v. Asstt. Controller of Estate Duty, Madras, AIR 1989 SC 1654………..
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;……………………………………………………
Bhagwati Prasad Sah v. Radha Kishun Seth, AIR 1950 P 354…………………………….
Kali Dayal v. Umesh Prasad, 65 IC 266…………………………………………………..
Allahbax Pindex v. Nusserwanji, 164 IC 43………………………………………………..
Gouinda Rao (in re:), AIR 1958 Mys 150…………………………………………………
Sailendra Narayan Bhanja Deo v. State, 1956 AIR 346; ………………………………….
South American & Mexican co. (in re:), 1895 (1) Ch 37; ……………………………….
Kinch v. Walcott, 1920 AC 482……………………………………………………………
Dawsons Bank v Nippin Mekawa, (1935) 37 BOMLR 544…………………………………
D. Johnstone v. Gopal Singh, 133 IC 628; ………………………………………………..
Lachhman Mal v. Munshi Mahton, 1933 P 708 (2)…………………………………………..
West Punjab Government v. Akbar Ali, PLD 1952 L 430……………………………………
Rup Chand Ghosh v. Sarveswar Chandra, (1906) 33 Cal 915……………………………..
Ganges Manufacturing Co. v. Sourujmull, (1880) 5 Cal 699……………………………..
N. Bhubaneswar Rao v. Principal, Osmania College, Hyd., AIR 1986 AP 196…………
Jaikaran Singh v. Sita Ram, AIR 1974 P 364……………………………………………..
Cobbe v Yeoman’s Row Management [2008] 1 W.L.R. 1752,…………………………….
Pickard v. Sears, (1837) 6 Ad &EL 469…………………………………………………….
Mohan v. State, AIR 1968 SC 1281………………………………………………………….
Chhaganlal Mehta v. Haribhai Patel, [(1982) 1 S.C.C. 223 ],……………………………….
R.S. Madanappa And Ors v. Chandramma And Anr., 1965 AIR 1812……………………..
Sourujmull v. Ganges Mfg. Co. (1880) ILR 5 Cal 669……………………………………..

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S. Sethuraman v. R. Venkataraman, (2007) 6 SCC 382………………………………….
E. v. Maha Ram, 19 Cr LJ 615……………………………………………………………..
Madhumiri surya Narayan v. state, 2003 Cr LJ NOC 75 (Kant)…………………………..
Sheo Tahal Ram v. Bmaek Shukul, 53 A 747: 1931 A 689 ……………………………….
Jado Singh v. Bishunath LA, 1942 P 71………………………………………………….
C.K. Mehta v. Patel Narandas Haribhai, AIR 1983 (9) SC 119…………………………

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 OBJECTIVES OF THE STUDY

The objectives of the project are as follows:-

1) To discuss about Doctrine of estoppel.

2) To elaborate how the Doctrine of estoppel has been encapsulated in the provisions of
Indian Evidence Act.
3) To understand the implications of Estoppel under Law of Evidence.

RESEARCH METHODOLOGY AND DATA COLLECTION

This Project is doctrinal in nature. Secondary and Electronic resources have been largely used to
gather information and data. Books and other reference as guided by Faculty of Jurisprudence
have been primarily helpful in giving this project a firm structure. Websites have also been
referred.

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 INTRODUCTION

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. Estoppel may operate by way of preventing
someone from asserting a particular fact in court, or exercising a certain right, or from bringing a
particular claim.

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.

The verb is estop, which comes from Middle English estoppen, itself borrowed from Old
French estop(p)er, estouper, presumably from Vulgar Latin *stuppāre ‘to stop up with tow,
caulk’ The noun form estoppel is based on the Old French estoupail ‘stopper, bung’, a derivative
of estouper.

So, in this research project the author will try to explain and elaborate the doctrine of
estoppel under the Indian Evidence Act, and the same will be done with help of case laws,
statutory provisions and differentiation of estoppel from other equitable doctrines like res
juducata.

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

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 DOCTRINE OF ESTOPPEL

Estoppel is sometimes said to be a rule of evidence whereby a person is barred from

leading evidence of a fact that has already been settled or they are otherwise precluded from
asserting. However, that may be an oversimplification. Firstly, although some estoppels relate to
preventing a party from asserting facts, others relate to preventing a party from asserting a right
or a claim. Secondly, under the conflict of laws in common law jurisdictions matters of evidence
are usually treated as procedural matters for the law of the local court (the lex fori), whereas it is
generally accepted that an estoppel may affect substantive rights and are therefore matters to be
determined by the proper law (or lex causae) which governs the particular issue.2

There are a huge array of different types of estoppel which can arise under common law
legal systems. It has been judicially noted on more than one occasions that the link between them
is often slightly tenuous. Treitel on Contracts notes that "’unconscionability ... provides the link
between them.' But they nevertheless have 'separate requirements and different terrains of
application'."3 The courts have long abandoned an attempt to create a single general underlying
rationale or principle:

“ the attempt... to demonstrate that all estoppels... are now subsumed in the single and all-
embracing estoppel by representation and that they are all governed by the came principle [has]
never won general acceptance.

-- Lord Millett4

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.5 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.

2
Dicey Morris & Collins on the Conflict of Laws, 14 th ed. 2006, at 7-31.
3
Treitel on Contracts, 14th ed. (2015) at 3-090.
4
First National Bank plc v Thompson ]1996] Ch 231 at 236
5
Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180, 188

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KINDS OF ESTOPPEL

Spencer Bower and Turner have classified estoppels into three kinds:

(i) estoppel by matter of record;

(ii) estoppel by matter in writing; and
(iii) estoppel by matter in paiis.6

The first two are sometimes referred to as technical estoppels as distinguished from acquitable
estoppels or estoppel in paiis.7 All these kinds have been discussed under Indian law in various
cases860

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.8 It belongs
more properly to the province of the pure procedure and is so dealt with in the Indian
legislation.9 Res judicata is an estoppel by judgment.10 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

6
Spencer-Bower and Turner, Estoppel by Representation (2003), pg no. 5
7
Abdul Ghaffar Khan v. Ishtinq Ali, 1943 0 354; Kalyani sandaram v. Asstt. Controller of Estate Duty, Madras,
AIR 1989 SC 1654.
8
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;
9
See sections 11-14, Civil Procedure Code; See also secs. 40-44, Evidence Act, which deal with the relevancy of
judgments.
10
Bhagwati Prasad Sah v. Radha Kishun Seth, AIR 1950 P 354.

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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.11

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.12 Estoppel by res judicata extends also to matters of
admission fundamental to the decision.13 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.14

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 Mekawa15 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,

11
Kali Dayal v. Umesh Prasad, 65 IC 266 (268).
12
Allahbax Pindex v. Nusserwanji, 164 IC 43
13
Gouinda Rao (in re:), AIR 1958 Mys 150.
14
Sailendra Narayan Bhanja Deo v. State, 1956 346; South American & Mexican co. (in re:), 1895 (1) Ch 37; Kinch
v. Walcott, 1920 AC 482.
15
(1935) 37 BOMLR 544

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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 of action, it is a rule of evidence, waiver is
contractual and may constituted a cause of action.”16

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.

16
‘Doctrine of Waiver and Constitution of India’, available at http://www.desikanoon.co.in/2014/05/constitutional-
law-doctrine-of-waiver.html

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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.17 The tendency in
modern times is, to treat estoppel by deed as resting upon contract and as merely a form of
estoppel by representation.18 The doctrine of estoppel by deed in its technical sense cannot be
said to exist in India.19 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.20 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.21

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".22

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.23 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.

17
Supra 6, at 15.
18
Id.
19
D. Johnstone v. Gopal Singh, 133 IC 628; Lachhman Mal v. Munshi Mahton, 1933 P 708 (2) 711.
20
Section 31 and 115, INDIAN EVIDENCE ACT 1872.
21
Id, at s. 92.
22
2 BLACKSTONES'S COMMENTARIES, at pg no. 294
23
West Punjab Government v. Akbar Ali, PLD 1952 L 430.

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IV. Equitable estoppel

The modern law of estoppel owes immensely to the doctrine of equity being founded on the
incidents of contracts or relations analogous to contracts coupled with the representations of
parties by a declaration, act, or omission.

Estoppels that are not provided by statute law may, in this country, be termed equitable
estoppels.24 A man may be estopped not only from giving particular evidence, but from doing
acts, or relying upon any particular arguments or contention which the rules of equity conscience
prevent his using as against his opponent.25

This doctrine also applies to a case where a person is given an unequivocal assurance and On the
faith thereof, he acts detrimental to his interest and he then suffers an irretrievable injury in that
pursuit. In such a case having made a promise, the maker thereof is precluded to resile
therefrom.26

V. Proprietary estoppel

A legal precedent that will prevent a party from denying the right that another party has in the
first party’s property. The second party will have had costs in relation to the first party’s
property.

Until 1986 the doctrine of proprietary estoppel was used as a way to bar litigants from asserting
their strict proprietary rights. The doctrine had not been used to give effect to promises to leave
property to someone in the future.27

It has developed into one of equity’s sharpest instruments in its intervention in the common law
and statutory regulation of land and the distribution of assets on death.28 In such a manner, there
is a balance to be struck between the need to hold people for their bargains and promises.29

24
Rup Chand Ghosh v. Sarveswar Chandra, (1906) 33 Cal 915.
25
Ganges Manufacturing Co. v. Sourujmull, (1880) 5 Cal 699 (678).
26
N. Bhubaneswar Rao v. Principal, Osmania College, Hyd., AIR 1986 AP 196.
27
Jaikaran Singh v. Sita Ram, AIR 1974 P 364.
28
http://www.step.org/proprietary-estoppel-looking-both-forward-and-back-after-thorner-v-major
29
Nick Piska, Hopes, Expectations and Revocable Promises in Proprietary Estoppel.

13
In the case of Cobbe v Yeoman’s Row Management30, the essentials of proprietary estoppels
were taken into consideration. The House of Lords in this case stated that Cobbe cannot make a
claim of proprietary estoppel, and also negated on the aspect of acquiring an interest as regards
to a constructive trust.

VI. Promissory estoppel

The legal enforcement of a promise. Made by words or conduct to the promisee without the
consideration of the detriment it may cause.

The doctrine of promissory estoppel does not fall within the scope of section 115 as the section
talks about representations made as to existing facts whereas promissory estoppel deals with
future promises.31

30
[2008] 1 W.L.R. 1752
31
http://www.legalserviceindia.com/article/l249-Promissory-Estoppel.html

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 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”.32

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”.33

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.34

In Pickard v. Sears35, 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.

32
Section 115, Indian Evidence Act, 1872
33
Id.
34
M. Morir, Textbook on theLaw of Evidence (2011), at pg 323.
35
Pickard v. Sears, (1837) 6 Ad &EL 469.

15
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 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.

16
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
lice-nce 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. State36, 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.37 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 Patel38, 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.

36
Mohan v. State, AIR 1968 SC 1281.
37
Id.
38
[(1982) 1 S.C.C. 223 ],

17
(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 Anr39, 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.”

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.

39
R.S. Madanappa And Ors v. Chandramma And Anr., 1965 AIR 1812

18
In the landmark judgement of Sourujmull v. Ganges Mfg. Co.40, 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.”41

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.”42

40
(1880) ILR 5 Cal 669
41
Id. at para 14.
42
Id. at para 15.

19
When estoppel is not attracted?

In case of S. Sethuraman v. R. Venkataraman43, the appellant initially submitted himself to the

jurisdiction of the Joint Director of School Education (appellate authority) regarding his
promotion, but later on challenged the decision of the appellate authority. In these circumstances,
the Supreme Court held that the appellant could not be estopped.44

 No Estoppel in Criminal Cases:

Estoppel is a rule of civil actions. It has no application to criminal proceedings, though in such
proceedings matters which in civil actions create an estoppel are usually so cogent that it would
be almost useless to setup a different story.45

A petition was filed for quashing the proceedings under sections 498A and 304 of IPC and under
the Dowry Prohibition Act because of an agreement between the parties. The petition was
dismissed as the party to the agreement was not bound by an unlawful compromise and hence
there was no question of estoppel either.46

 Estoppel should be pleaded: Onus of proving the Plea

The rule of estoppel depends for its application on certain of fact.47 It should, therefore, be
specifically, pleaded48 unless there is no opportunity of doing so, e.g., in cases where there are no
pleadings, in which case the party relying on estoppel must raise it by an objection in other form
at the earliest possible stage of the proceeding.49

Where estoppel is not specifically pleaded, a party will not permitted to rely it at a subsequent
stage.50 A person is entitled to plead estoppel in his own individual character and not as a
representative of his assignees.51

43
S. Sethuraman v. R. Venkataraman, (2007) 6 SCC 382.
44
Id. at 392.
45
E. v. Maha Ram, 19 Cr LJ 615.
46
Madhumiri surya Narayan v. state, 2003 Cr LJ NOC 75 (Kant).
47
Sheo Tahal Ram v. Bmaek Shukul, 53 A 747: 1931 A 689 (693)
48
Id.
49
Supra 6, at 423; Jado Singh v. Bishunath LA, 1942 P 71.
50
Id.
51
C.K. Mehta v. Patel Narandas Haribhai, AIR 1983 (9) SC 119.

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 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.

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 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

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