Estoppel -Definirtion, principles, nature and scope of

Doctrine of Estoppel
Estoppel and fundamental rights, estoppel against Law and
statute.

Dr. Ajay Nathani

Definition-No other technical legal term is so frequently and loosely used than the
term estoppel. The word “estop “, which is ancient English word now used as stop. The term
estoppel has been exclusively employed in English jurisprudence with special and technical
connotation of its own. An estoppel is a rule of evidence, which prohibit one party from
denying the existence of facts, which he represented as existing and upon which
representation another person has been induced to act to his detriment.
Doctrine of estoppel –The role of estoppel is founded on the equitable doctrine
that it would be most inequitable and unjust, if a person, who by representation made, or,
by conduct amounting to representation has induced another to act who would not
otherwise have done, should be allowed to deny or repudiate the effect of his primary
statement to the loss and injury of the person who acted on it. Estoppel is rule of equity,
which forbid the truth being pleaded or representation, which induced the other to act to
his detriment, being retracted.
Kinds of estoppel-coke, who is the earliest and the highest authority on the subject
of estoppel classified estoppel in three kinds,
(i) Estoppel by matter of record
(ii) Estoppel by matter in writing
(iii) Estoppel by matter in pais
Estoppel by matter of record- Estoppel by matter of record means nothing more
generally than that the estoppel by resjudicata. It is rule of procedure. Resjudicata is an
estoppel by Judgment. It embarrasses all those rules the common characteristics of
which is that a final judicial decision of court of competent jurisdiction once pronounced
between the parties can’t be contradicted by any one as against any other of such
parties in any subsequent litigation between the same parties in respect of same
 subject. There is difference between estoppel by representation and resjudicata. Former
prevents activity of parties contrary to his earlier statement or representation, latter
creates a bar against the forum before which the parties are litigating.
Estoppel by matter in writing or estoppel by deed- 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 nature to the deed itself .In India contents in
document being merely an admission is not conclusive and does not operate as estoppel
unless the party to whom the representation was made had acted upon it and thus altered
his position.
Estoppel by matters in pais - Blackstone defines it as an assurance transacted
between two or more private persons in pais in the country i.e. upon the very spot of the
object to be transferred. Expression in its original application was confined to acts and
proceedings (i) in transactions relating to land and title thereto,(ii) Taking place on the very
land the subject of the transaction and of such notoriety, ceremony and solemnity as to
render them equivalent to a declaration of a title under seal.
According to modern sense of terms estoppel in pais has been said to arise firstly
from agreement or contract, Secondly independently of contract, from acts or conduct of
misrepresentation, which has induced a change of position in accordance with the real or
apparent intentions of the parties against whom the estoppel is alleged.
Nature and scope of doctrine - following elements must concur in order to
constitute valid estoppel by representation
I. That the party sought to be estopped, or, some person for whose
representations such party is in law responsible, made a representation
II. That the case which the party is sought to be estopped from making,
setting up, or, attempting to prove, contradicts in substance his original
representation
III. That such original representation was of a nature to induce and was
made with the intention of inducing the party raising the estoppel to alter his
position to his detriment.
 IV. That the party raising the estoppel actually altered his position to his
detriment on the faith of such original representation.
V. That the original representation was made to the party setting up the
estoppel or to some person in right of whom he claims.
The Evidence Act deals with the subject of estoppel in section 115 to 117. In
common law estoppel are taken as matters of infinite variety and by no means
confined to the subjects as in case of Indian Evidence Act .The principle of
estoppel by representation is enacted as section 115 of the Evidence Act.
Estoppel accepts, as bar to testimony has no operation or efficacy what so ever.
Estoppel by representation is one of those rules of evidence, which are personal
to the parties, and does not belong to that class of rule, which relate to title or
right against the word. The representation relied upon as Estoppel is itself no
contract or affirmative evidence of any tile or right to prevent opposite party
from denying that title or right as between the parties to the representa5tion
and, therefore, rule of estoppel may affect or create substantive right. Estoppel
is rule of civil action. It has no application to criminal proceeding. The rule of
estoppel depends for its application on certain question of fact. It should
therefore be specifically pleaded. Either party may plead estoppel and the
burden of substantial plea is on the party to bring within the scope of estoppel.
Scope of estoppel as defined u/s 115 of the Evidence Act.
(i) There must be a representation by a person or his
authorized agent to another by a declaration, act, or, omission;
(ii) The representation must have been of the existence of
a fact and not of promise de futuro or intention which might or might
not be enforceable in contract;

(iii) The representation must have been meant to be relied

upon;
 (iv) There must have been belief on the part of the other party
in its truth.
(v) There must have been action on the faith of that
declaration act or omission i.e. to say, the declarations, act or
omission, must have actually caused another to act upon 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, for if he was aware
of the real state of affairs or has means of knowledge, there can be
no estoppel;

In recent years rule of estoppel gained new dimension in recent years rule of
estoppel gained new dimensions. New class of estoppel in the form of promissory
estoppel is recognized in England as well as in India. The scope of doctrine of estoppel is
increasing and the concept of the doctrine suits to the contemporary period.
ESTOPPEL AND FUNDAMENTAL RIFGHTS.
The question of the application of doctrine of estoppel to the fundamental right
for the first time came before the Apex court in the case of Basheswarnath V, Income
tax commissioner AIR 1959 SC 149. Application of the principle was claimed in the form
of waiver. Waiver is an intentional relinquishment of known right or such conduct as to
waive such right. The essence of waiver is estoppel and where there is no estoppel
there is no waiver. It was held in this case that waiver has no application to the provision
of fundamental rights. It is not open to accused person to waive or give up his
constitutional right and get convicted.
In Bashesdher Nath V, Income tax Commissioner the petitioner, whose case was
referred to the Income tax Investigation commissioner U.S. 5(1) of the Taxation of
Income (investigation commission) Act, was found to have concealed large amount of
income. He, there upon agreed at a settlement in 1954 to pay Rs.3 Laics in monthly
installments by way of arrears of tax and penalty. In 1955 the Supreme court in Muthaih
v.I.T.Commissioner AIR 1956 SC 269 held that section 5(1) of the Taxation of income
(investigation commission) Act was ultra- vires of Art. 14. Parliament incorporated
amendment to the Indian Income tax Act. The result of this amendment was that
persons who originally fell only within the ambit of S. 5 of the Taxation of Income Act
and formed a distinct class of tax evaders also came within the S. 34 of the Income tax
Act. The respondent contended that even if section 5 (1) was invalid, the petitioner by
entering into an agreement to pay the tax had waived his fundamental right guaranteed
under Article 14.
The majority expressed the view that the doctrine of waiver as formulated by
some American judges interpreting the American constitution cannot be applied in
interpreting the Indian in interpreting Indian constitution. The court held that it is not
open to a citizen to waive any of the fundamental rights conferred by part iii of the
constitution No person can relieve the State of this obligation, because a large number
of people are not yet conscious of their rights. In such circumstances, it is the duty of
this court to protect their right against themselves.
In the case of Pradeep Tandan v. State of Uttar Pradesh AIR 1975 Allahabad 1
the question of applicability of estoppel against fundamental right came before Hon.ble
High court Pradeep appeared in pre medical test for admission to one of the seven
medical colleges controlled by Allahabad University. He was not selected for admission.
By filing Writ Petition, he questioned the validity of reservation of seats by Uttar
pradesh Government, for certain classes or groups of candidates. He alleged that the
reservation deprived him by being admitted to MBBS or BDS course though he had
secured higher marks and position in the state than many of the candidates who were
admitted for the reasons that they failed in one or the other group of class for whom
the seats were reserved, One of the grounds to challenge his claim was that Pradeep
knowingly signed the form and agreed to abide by all the terms and conditions including
 reservation of seats. It was held by Their Lordship that merely the signing of the form by
the petitioner would not confer upon the state a power to discriminate in violation of
the constitutional injunction. No question of estoppel or waiver arises where the state
lacks the constitutional power to enforce a rule, which is unconstitutional, and thus
ultra vires.
In the case of Dr.Sidhartha Das v. State of Orrisa AIR 1981 Orrisa 97, it was
ruled:
” When infraction of Article 14 of the Constitution is pleaded,
estoppel is not an answer. Article 14 holds out a mandate to the State for
regulating its conduct and while the State’s conduct is under review with
reference to the equality clause, estoppel based upon the performance of
citizen is not the answer to negative such plea.”
In the case of Ram Gopal V. Assistant housing Commissioner AIR 1969 Allahabad
278 it was held that even if a person acquires right under the statute he can claim benefit of
Article 14 of the Constitution in order to protect his interest and, therefore, fundamental
right cannot be waived.

INCORPORATION OF DOCTRINE OF ESTROPPEL IN CONSTITUTION.

If we look the subject with a Different angle we can visualize that the doctrine of
estoppel is incorporated in the constitution creating obligation on the part of the State to
safeguard the fundamental rights of the citizens .The preamble of the constitution disclose
that the people of India constituted India as a democratic nation and secured for all its
citizens justice, liberty and equality. This is a gesture or representation by the state. It is
necessary to mention here that constitution does not create fundamental rights.
Fundamental rights are inherent or natural rights essential for the attainment by an
individual of his full intellectual, moral and spiritual status. Fundamental rights are
incorporated in the constitution to create duty on the part of State to see that justice,
liberty and equality of citizen shall be protected. Article 32 is incorporated in the
Constitution as remedy for enforcement of right conferred by part III of the constitution.
The obligation to provide this remedy is in the hands of Apex court and the High courts,
which are the penetrating tentacles of an Independent judiciary. This scheme of
constitution discloses that state by declaration in preamble of the constitution permitted
the citizen to enjoy liberty of thoughts, belief, faith and worship. They will get equality of
status, equal opportunities of employment and social, economic and political justice.
Fundamental rights are incorporated in the constitution to disallow the state to deny truth
in the declaration of the preamble of the constitution. In this way principle of estoppel is
incorporated in the constitution of India.
Estoppel against law and statute-Before proceeding with the subject it is necessary
to consider what is the difference between the terms law and statute. “Law’ is defined in
art. 13 of the Constitution to include any ordinance, order, by-law rule, regulation,
notification, custom or usage. In general sense law is defined as a synthesis of order and
justice.” Statute” is much narrower term and includes Acts passed by the legislature and
ascended to by president of India or Governor of a state. It is defined in Art.111 and Art. 200
of the Constitution of India.
Basic principle is that there is no estoppel against the law or statute. No estoppel
can be pleaded against the prohibitions enacted by the statutes. If the law requires that a
certain tax be collected, any assurance by the state Government that it would not be
collected, would not bind the state government when ever it chooses to collect it.
Sale deed executed by a schedule tribe in contravention of certain provisions of
Maharastra Land Revenue Code cannot be claimed to be valid by application of principle of
Estoppel. Even if agriculturists had stated in express terms that not withstanding the
provisions of s. 60 of Code of Civil Procedure they were willing to get their houses sold in
execution of the decree, warrant of sale can’t be issued as there is no estoppel against
statute.
It is not open to parties to contract to estop themselves to ignore provisions of
statute. Interpretation of a document is purely a question of law and there can’t be
estoppel in such matters. If a document is in fact a will, but certain party has wrongly
described it as a gift, the court will have to consider the document independently of
admission of any party. An erroneous admission on a question of law made by a counsel
does not preclude the party from making an assertion contrary to the admission.