Evidence C13

EVIDENCE ACT LECTURE – XIII (SECTIONS 115-117)
INDIAN EVIDENCE ACT

LECTURE – XIII
ESTOPPEL (SECTIONS 115-117)
Meaning of Estoppel
The word ‘estoppel’ came from French word ‘estoupe’ which means in English as ‘stopped’ in
law. The term was adopted by the English Jurisprudence for the purpose of shutting the mouth
of a person who alleged or pleaded or spoken or acted upon truth in one previous occasion and
tries to avoid or evade his own allegation or pleading or speech or action with a mala fide (i.e.
ill intention).
Estoppel is a preclusion in law which prevents a man alleging or denying a fact in consequence
of his own previous act, allegation, or denial of a contrary tenor.
Estoppel is an admission or determination under circumstances of such solemnity that the law
will to allow the fact so admitted to be questioned by the parties or their privies.
Estoppel is the conclusive ascertainment of a fact by the parties, so it no longer can be

controverted between them
Estoppel is the preclusion of a person from ascertaining a fact, by previous conduct/inconsistent

therewith, on his own part, or on the part of those under whom he claims.
In the broad sense of the term ‘estoppel is a bar which precludes a person from denying the
truth of a fact which has in contemplation of law became settled by the acts and proceedings
of judicial or legislative officers, or by the act of the party himself, either by conventional
writing or by representations, express or implied, in pais.
According to Tomlin’s law Dictionary “Estoppel is an impediment or bar to a right action

arising from a man’s own act; or where he is forbidden by law to speak against his own deed,
for by his act or acceptance he may be estopped to allege or speak the truth.”
As per Smith L.C., “An estoppel is an admission, or something which the law treats as an
equivalent to an admission, of so high and conclusive a nature that anyone who is affected by
it is not permitted to contradict it.”
An estoppel is a restraint, or impediment, imposed by the policy of the law, to preclude a party
from averring the truth. [Gibson v. Gibson, 8 Am Dec.94]
Estoppel means that party is presented by his own acts from claiming a right to detriment of
other party who was entitled to rely on such conduct and has acted accordingly. [Graham v.
Asbury, 112 Ariz. 184.]
In Greenleaf evidence, it is observed that an estoppel arises where a man “has done some act
which the policy of the law will not permit him to gainsay or deny.”
Estoppel is “A fictitious statement treated as true” [General Finance etc. Co. v. Viberator
Permanent Ben Bldg. Soc. 10 Ch. D 15.]
THE INDIAN EVIDENCE ACT | 1

Estoppel is an equitable relief and where it is operated by cheating another of his rightful claims
it will not be effective help to him to deprive another of his rights. [Auling and Odgers JJ, K
Kotayya (dead) and another Defendant. - Appellant, AIR 1924 Mad. 177.]
There is said to be estoppel where a party is not allowed to say that a certain statement off acts
is untrue, whether in reality it is true or not, Estoppel, or ‘Conclusion’ as is frequently called
by the elder authorities, may therefore be defined as a disability whereby a party is precluded
from alleging or proving in legal proceedings that a fact is otherwise than it has been made to
appear by the matter giving rise to that disability. [Halsbury’s Laws of England.]
Doctrine or concept or principles or law or rule of estoppel
According to Phipson & Elliot. “Estoppel is a rule where by a party is precluded by some
previous act to which he was party or privy from asserting or denying a fact. It is a rule of
exclusion, making evidence of a relevant fact inadmissible.”
Vepa P. Sarathi says that “The Principle of estoppel says that a man cannot approbate and
reprobate or that a man cannot blow hot and cold, or, again, that a man shall not say one thing
at one time and later on say a different thing.”
The rule of estoppel is based on the maxim: “Allegans contraria non est audiendus” A person
alleging contradictory facts should not be heard. It is based on the principle that it would be
most inequitable and unjust that if one person, by a representation made or by conduct
amounting to a representation has induced another to act, the person who made the
representation should be allowed to deny or repudiate the effect of his former statements, to
the loss and injury of the person who acted on it.
The principle of estoppel says that a man cannot approbate and reprobate, or that a man cannot
below hot and cold, or, again that a man shall not say one thing at one time and later on say a
different thing.
Estoppel is a rule of evidence which in certain circumstances precludes a person from

establishing real facts, and compels him to abide by a certain conventional set of facts. (7 Bom.
LR 602.)
Estoppel is a principle that provides that an individual is barred from denying or alleging a
certain fact or state facts because of that individual’s previous conduct, allegation, or denial.
Estoppel is a doctrine which holds that an inconsistent position, attitude or course of conduct
may not be adopted to loss or injury to another. (Black’s Law Dictionary).
Section 115 of the Indian Evidence Act embodied the principle of estoppel. It states: “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 believe neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person on 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
induced 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.
Phipson and Elliot give two simple examples of estoppel.
(1) In Benaim’s case [Oakland Metal Co. v. Benaim, 1953 2 Q.B. 261, A and B had a
dispute about a contract existing between them. In accordance with the contract, the
matter was taken to arbitration and A appointed X as arbitrator. X having found for B,
A now sought to have the award set aside by the court on the ground that X was not
duly qualified as required by the contract. He was not allowed to prove X’s incapacity,
since by appointing him he had estopped himself from denying X’s qualification.
(2) In Soanes’s case [Soans v. London and South Western Railway, (1919 120 LT
598], a railway company allowed a man in the uniform of one of their porters to meet
a passenger at the entrance to Waterloo station, to take his bag and walk through the
barrier on to a departure platform, and there to remain in charge of the bag. When sued
by the passenger for the loss of the bag, the company was not allowed to prove (as was
in fact the case) that the man was not a porter employed by them at the station.
The principle of estoppel is a rule which prevents a person from taking up inconsistent position
from what he has pleaded or asserted earlier. The rule of estoppel is based on the principle that
it would be most inequitable and unjust that if one person, by a representation made, or by
conduct amounting to a representation, had induced another to act as he would, not otherwise
have done, the person who made the representation should not be allowed to deny or repudiate
the effect of his former statement, to the loss and injury of the person who acted on it.
To invoke the doctrine of estoppel three conditions must be satisfied, namely. (i) representation
by a person to another (ii) the other shall have acted upon the said representation, and (iii) such
action shall have been detrimental to the interests of the person to whom the representation has
been made. Even where the first two conditions are satisfied by the third is not, there is no
scope to invoke the doctrine of estoppel.
The doctrine embodied in Section 115 is not a rule of equity, but is a rule of evidence
formulated and applied in course of law. It precludes a person from denying the truth of some
statement previously made by himself. No cause of action arises upon estoppel itself.
Section 115 is based on equity and good conscience the object being to prevent fraud and secure
justice between the parties by promoting honesty and good faith amongst the parties.
Section 115 is based on the decision in Pickard v. Sears [(1832) Ad & El 469] in which it was
stated, “where a person by his words or conduct wilfully causes another to believe in the
existence of a certain state of things and induces him to act on the belief so as to alter his own
previous position, the former is precluded from averring against the latter a different state of
things as existing at the same time.”
Essential conditions for the application of the Doctrine of Estoppel
As observed in Chhaganlal Keshavalal Mehta v. Patel Narandas Haribhai, AIR 1982 SC

121, to bring the case within the scope of estoppel as defined in Section 115:

(1) there must be a representation by a person or his authorized agent to another in any
form, a declaration, act or omission;
(2) the representation must have been of the existence of a fact and not of promises de
futuro or intention which might or might not be enforceable in contract;
(3) the representation must have been meant to be relied upon;
(4) there must have been belief on the part of the other party in its truth;
(5) there must have been action on the faith of that declaration, act or omission, that is
to say the declaration, act or omission, must have actually caused another to act on the
faith of it, and to alter his former position to his prejudice or detriment;
(6) the misrepresentation or conduct or omission must have been the proximate cause
of leading the other party to act to his prejudice;
(7) the person claiming the benefit of an estoppel must show that he was not aware of
the true state of things. If he was aware of the real state of affairs or had means of
knowledge, there can be no estoppel;
(8) only the person to whom representation was made or for whom it was designed can
avail himself of it.
The doctrine of estoppel by representation forms part of the English Law of Evidence and such
estoppel except as a bar to testimony, has no operation or efficacy whatsoever. Its sole object
is either to place an obstacle in the way of a case which might otherwise succeed or to remove
an impediment out of the way of the case which might otherwise fail.
A question of estoppel must be decided on ordinary common law principles of construction

and of what is reasonable, without five distinctions of technicalities. Though estoppel is
described as a mere sale of evidence, it is a rule of substantive law. Usually the only effect of
an estoppel is to prevent proof of a fact; if the party can establish his case by proving other
relevant facts, he is allowed to do so. In such a case estoppel is merely an exclusionary rule of
evidence. But sometimes the reason why evidence is excluded is that estoppel has removed the
issue to which the proffered evidence would be relevant, and here it might justly be described
as a rule of substantive law.
The estoppel cannot override positive rules of law or make legal that which is illegal or it
cannot be set up in the face of a statute.
Estoppel is a rule of civil action. It has no application to criminal proceedings, though in such
proceedings it would be prejudicial to set up a different story,
An estoppel arises from an act or declaration of a person intended or calculated to mislead

another, on which other has relied, and has so acted or refrained from action, as that injury will
befall him if the truth of the act or declaration be denied.
Examples for estoppel are:

(1) Where a tenant, having only non-transferable interest in a holding, sells it alleging
that he has a transferable right in it, he cannot be allowed, afterwards, to say that he had
no transferable interest in the property.
(2) A, who was the owner of certain machinery allowed it to be in the possession of his
friend B and C obtained a decree against B and when the machinery was being seized
in execution of that decree A did not raise any objection. Subsequently C sold this
machinery to other persons and A instituted a suit setting up his title to that property.
The court has held that A is estopped from denying the fact that B is the owner of that
machinery.
(3) 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. 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. The trustee was estopped from saying that he was not the
owner of the property though it might be true.
The doctrine of estoppel is not applied to the following
(i) Estoppel does not apply to the criminal proceedings.
(ii) A stranger cannot take the advantage of estoppel.
(iii) where there is no duty, there is no estoppel.
(iv) the doctrine does not apply against the incompetent persons i.e. minors, persons of
unsound mind etc.
(v) the principle of estoppel cannot be invoked against the provisions of a statute or a
law.
(vi) An act or representation made due to innocent mistake done does not create
estoppel.
(vii) The doctrine of estoppel does not operate against a person who was non-existent
at the date when the transaction took place.
(viii) the doctrine of estoppel does not operate against the acts which are illegal and
void by nature.
(ix) the doctrine of estoppel does not apply against the government in its governmental,
public or sovereign capacity.
(x) where both the parties are acting under a common misapprehension, the rule of
estoppel does not arise.
Estoppel by matter of record
Estoppel by record is founded, either on a judicial or a legislative record. A matter of record is

something part of the records of court. It is once the narrative and the proof of its proceedings.

Estoppel by records results from the judgement of a competent court. The law allows a party
ample opportunity by way of appeal and otherwise, of upsetting a wrong decision. And if he
takes the opportunity and fails, or does not choose to avail himself of it, he cannot subsequently
re-open or dispute that decision. And not only the parties themselves, but also the heirs,
executors, administrator and assignee of each of them are bound by the decision for they are
‘privy to the estoppel’. The term ‘privy’ is a term of the law meaning a part take who is not a
party.
(i) Estoppel by judgment:- Estoppel by judgment is a bar which precludes the parties to an
action to relitigate, after final judgment, the same case of action or ground of defence, or any
fact determined by the judgment.
Estoppel by record is enacted by a final judgment. A party relying an estoppel by record should
be able to show that the matter has been determined by a judgment in its nature final. The word
‘final’ here is used as opposed to ‘interlocutory’. A judgment which purports finally to
determine rights is none the less effective for the purposes of creating an estoppel because it is
liable to be reversed in appeal.
The essence of estoppel by judgment is that a party cannot be allowed to say one thing at one
time and another at a later time. A judgment can be estoppel only as between the parties to it
unless it is a judgement in rem which is binding against all the world.
(ii) Estoppel by verdict:- Estoppel by verdict precludes the parties to an action from
relitigating a fact which had been determined in a previous action between them.
The estoppel by record is dealt with from Sections 11 of 14 of the CPC and Section 40 to 44 in
Evidence Act.
Where the earlier decision is that of a court of record the resulting estoppel is said to be
‘estoppel of record’ where it is that of any other tribunal, whether constituted by agreement of
the parties or otherwise, the estoppel is said to be estoppel of quasi record.
In Halbury, it is observed. “Estoppel of record or of quasi-record, also known as estoppel per

rem judicatam arises: (i) where an issue of fact has been judicially determined in a final manner
between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter, and
the same issue comes directly in question in subsequent proceedings between the same parties
(this is sometimes known as cause of action estoppel); (ii) where the first determination was
by a court having exclusive jurisdiction, and the same issue comes incidentally in question in
subsequent proceedings between the same parties (this is sometimes known as issue estoppel);
(iii) m some cases where an issue of fact affecting the status of a person or thing has been
necessarily determined in a final manner as a substantive part of a judgment in rem of a tribunal
having jurisdiction to determine that status and the same issue comes directly in question in
subsequent civil and criminal proceedings between any parties whatever.”
It is the final decision and not any and every expression of opinion in a judgment which gives
rise to an estoppel by record and the actual decision cannot be carried further than the
circumstances warrant. The general principle which runs through the doctrine of estoppel by
record is that a decree is an order of the court and the judgment debtor must, when it has once
been completed, obey it unless and until he can get it set aside in proceedings duly constituted
for the purpose.

In Ram Karan v. Union of India, [2006 AIHC 152] it has been held that in a land acquisition
case, the persons who had accepted the judgment of the single judge of the 1-ligh Court and
did not file appeal against the said judgment were held to be estopped from challenging the
same after 25 years merely by getting themselves impleaded as respondents in an appeal filed
by others.
Certain lands were acquired by the state government for a public purpose. The compensation
was paid to the land losers, who had submitted their full satisfaction to the Land Acquisition
Officer, and not appealed to the appellate authority against the compensation. The records
signed by the land losers stand as estoppel by matter or record.
The affidavits are sworn by the deponent and are submitted before the executive authorities
and the courts. When once an affidavit is submitted by the deponent to any authority or to the
Court, thereafter he cannot change the version of it, being he is estopped by estoppel by record.
In the following circumstances, the record does not operate as estoppel by matter of record.
(1) On the representation of the concerned parties, the revenue authorities change,
mutate and correct the revenue records. The aggrieved party, if any, cannot exercise the
estoppel by matter of record against such revenue authorities.
(2) A party accepting payment under an arbitrator’s award cannot afterwards challenged
it.
(3) Estoppel by record is not applicable to transaction matters where in the cases of
demand notice sent by the income tax or sales tax authorities, the assessee pays the
amount and challenges as estoppel by record, he cannot succeed because, still there are
opportunities under the tax laws to seek refund of tax, if any paid in excess.
(4) Where in an earlier proceeding the High Court held that the jurisdiction of the civil
court to decide the disputed question of title to a certain suit land was not barred, the
court’s jurisdiction could not be challenged in a subsequent proceeding on the same
grounds.
(5) Where a wife files a maintenance petition, however withdraws it due to the
persuasion of relatives and friends. The withdrawal of the maintenance petition cannot
operate as estoppel by record. The withdrawal does not bar to file a second petition for
maintenance.
(6) Where a plaintiff prays the Court to allow him to amend the plaint, and the court,
after hearing him, allows to amend the plaint and orders to pay costs to the defendant.
The plaintiff pays the costs to the defendant and amends the plaint. Thereafter the
defendant cannot seek the rule of estoppel by record against the plaintiff.
(7) The builder constructed an apartment consisting several flats and a cellar and sold
the flats to different owners. At the time of selling, the builder took undertakings from
the flat owners that they have objection for leasing the cellar and utilize the money by
the builder. After some years, the flat owners formed an association and challenged the
act of the builders i.e. leasing the cellar and utilising the lease money for himself. The
builder produced the undertakings. The builder claimed the estoppel by record against

the flats and apartment owners. The builder cannot succeed as such undertakings are
not legally valid according to the flats and apartments law.
Estoppel by Deed or Writing
Doctrine of estoppel by deed would apply when the person sought to be estopped or his
predecessor in interest has obtained possession of property or some advantage under the deed.
Where, in a deed made between party and verified by their seals, there is a statement of fact,
an estoppel results and is called ‘estoppel by deed’, if upon the true construction of the deed
the statement is that of both or all the parties, the estoppel is binding on each party; if otherwise,
it is only binding on the party making it. It seems that the estoppel also arises, it is only biding
on the party making it. It seems that an estoppel also arises upon a deed all the mode of its
execution being equally solemn with that of deed made inter parties. Estoppel by matter in
writing is based on either a deed or a written contract.
The estoppel by deed or writing is based on the principle that when a person has entered into a
transaction by deed under his hand he shall not be permitted to deny the matter which he has
asserted in the deed. It is a rule of evidence according to which certain evidence is taken to be
of so high and conclusive a nature as to admit of no contradictory proof.
Estoppel by deed is one which binds the parties to instrument and those claimed through them
to its statements. No estoppel arises upon recitals or description which are either immaterial or
not intended to bind. Where the deed is obtained by fraud or misrepresentation or illegal the
rule of estoppel does not apply. A deed which can take effect by interest shall not be construed
to take effect by estoppel.
If there are grounds for rectifying the deed because of mistake, no estoppel can be found on the
unrectified deed. A receipt for money contained in a deed does not create an estoppel, and proof
may be offered that the payment was not in fact made. In the absence of such proof, however
the receipt is sufficient evidence that the payment was made. If a document is fictitious it is of
no legal consequence and the parties to such a document are not bound by the contents thereof.
Neither party, nor their privies will be permitted to deny the truth of facts assented to in their
deed. If on the true construction of the deed the statement is one which all parties to a deed
have mutually agreed to admit as true, it is binding on all of them and their privies; but if it is
intended to be that of one party only, the only persons estopped are that party and his privies.
A statement in a deed is only an admission and under Section 31 of the Evidence Act it does
not operate as conclusive proof i.e. evidence can be given to show that the admission was
wrongly made. But, under the same section, an admission can operate as an estoppel, that is,
the person who made the admission will not be permitted to state the opposite if the conditions
for the application of estoppel are present. An admission whether oral or in a deed operates as
estoppel if the conditions of estoppel are present; otherwise evidence can be given to show that
the admission was wrongly made.
In Nathoolal v. Ganpat Prasad, [AIR 1958 MP 84], it has been held that a vendor seeking to
enforce an option of repurchase contained in the original sale deed is not estoppel from taking
the conveyance from the vendee even if he knew at the time of original agreement and that he
was not the rightful owner.

In an agreement between A and B, an arbitration clause naming X as an arbitrator was

incorporated. After the dispute arises, A objects the arbitration clause. A’s objection cannot
succeed, being he is estopped by the estoppel by deed.
In Habeeba Begum v. Gulam Rasool, [2000 AIHC 1981 (AP)] it has been held that where the
plaintiff signed the partition deed partitioning the properties belonging to the family and the
relinquishment deed relinquishing his rights in favour of other members of the family,
subsequently he could not file a suit for declaration of title over the said properties by pleading
that the said document were void. He will have to file a suit for cancellation of those documents
first.
Other Estoppels of Deed
(i) Estoppel by warranty:
Estoppel by warranty is based on the principle of ‘giving effect to the manifest intention of the
grantor appearing on the deed, as to the lands or estate to be conveyed, and of preventing the
grantor from derogating or destroying his own grant by any subsequent act. Estoppel by
warranty belongs to ‘Estoppel by Deed’.
(ii) Technical Estoppel
Technical Estoppels are those which arise from matter of record or the deed of the party
estopped. They arise from a strict or technical construction of rules of law. The technical
estoppel belongs to ‘estoppel by deed.’
(iii) Title or Right by estoppel
Titles by estoppel are those where a person without title, having conveyed with warranty,
subsequently acquires the title, it to the benefit of the grantee who is said to acquire the title of
estoppel. ‘Title by estoppel’ or ‘right of estoppel’ is said to arise also where one person makes
to another a statement which is afterwards acted upon, since in any action brought afterwards
upon faith of that statement by the person to whom it was made, the person making it is not
allowed to deny that the facts were what he represented them to be although in truth they were
different. According to this estoppel, a tenant cannot dispute his landlord’s title. The titles by
estoppel belong to ‘estoppel by deed’.
Estoppels in Pais [Estoppel by conduct or representation]
Originally ‘pais’ means assurance of land, by matter in pais, or deed, which is an assurance
transacted between two or more private persons in pais in the country; that is (according to the
old common law) upon the very spot to be transferred (2 Bl.Com.294).
In Common law’, ‘estoppel in pais’ i.e. ‘in the country’ or ‘before the public s or more fully
‘estoppel in pais de hors’ means the instrument i.e. with regard to matters outside a record or
deed.
As time changed, the word ‘pais’ has been added to estoppel to give the meaning of ‘estoppel
by conduct or representation’. Estoppel in pais arises from (i) agreement or contract and (ii) act
or conduct of misrepresentation which has induced a change of position in accordance with the
intention of the party against whom the estoppel is alleged. Thus, ‘estoppel in pais’ includes

all forms of estoppel not arising from a record, from a deed, or from a written contract. Estoppel
by matter in pais is founded on misrepresentation, express or implied.
Where one has either by words or conduct made to another a representation of fact, either with
Knowledge of its falsehood or with the intention that it should be acted upon, or has so
conducted himself that another would, as a reasonable man, understand that a certain
representation of fact was intended to be acted on, and that other has acted on the representation
and thereby altered his position to his prejudice, an estoppel arises against the party who made
the representation, and he is not allowed to cover that the fact is otherwise than he represented
it to be.
When a person (i.e. a person of full age and competent to enter into contracts) 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. This is estoppel by conduct.
To raise an estoppel by conduct a person must by word or conduct induce another to believe
that a certain state of things exists and to cause that other to act on that belief in a way he would
not have done had he known the facts, so that, if in an action between them, the person making
a representation were allowed to prove the true facts-to tell the truth-the other person would
have been prejudiced. If these two conditions are fulfilled, then the person making the
representation will not be allowed to deny its truth in any action between him and the person
to whom he made it or the person who claim in the same right. But in any other action he can
deny its truth.
For example, where the grant in favour of the highest bidder in an auction was cancelled, and
a second auction was held, in which the previous highest bidder participated, he is estopped
from questioning the validity of the cancellation of the earlier auction in his favour.
Estoppel by conduct is on the same footing as estoppel by representation.
The party against whom estoppel is pleaded should have made some representation intended
to induce a course of conduct by the party to whom it is made. Where a non-transferable holding
is sold by a tenant, he is estopped from setting up the invalidity of the sale by him.
If a man either by words or by conduct has intimated that he consents to an act which has been
done and that he will offer no opposition to it, although it could not have been lawfully done
without his consent, and he thereby induces others to do that which they otherwise might have
abstained from, he cannot question the legality of the act he had so sanctioned, to the prejudice
of those who have so given faith to his words or to the fair inference to be drawn from his
conduct.
For the application of the estoppel in pais, no actual verbal representation iS necessary to give
rise such an estoppel, it is quite enough that the conduct of the party leads another to believe
that he asserts no claim to the property or right.
When the conduct does not amount to estoppel in pais: In certain circumstances, the conduct
does not amount to estoppel in pais. Some of such circumstances are (1) In compensation cases:
Where a party is paid lesser compensation by the authorities, and the party received the cheque
of lesser amount with a protest, and later appealed for the enhancement. (2) Legitimacy: A

plaintiff raises the legitimacy of the defendant. The fact that the defendant was treated and
admitted as the legitimate son of the alleged family, and the plaintiff was one of the family
members to treat and admit the defendant as the legitimate son of the alleged family.
Estoppel in pais may arise in the following cases:
(i) Estoppel by attestation
Attestation means affirming the signature. The attestor, by attesting says that the executant of
a document was the person who bore that name, that is, the signature is that of the person by
whom it purports to be signed. He ordinarily knows nothing of the contents of the document
and so he is not estopped from denying the truth of the various statements contained in the
document. But if there is evidence to show that he knew the contents and that it was with such
knowledge that he attested the signature of the executant, then an estoppel by such attestation
can arise.
When the attesting witness possesses any interest in the property dealt with in the document
the fact of attestation raises a prima facie presumption that he knows the contents.
In Ramaswamy Gownder v. Anantha Padmanabha Iyer, [(1971) 84 Mad. LW 76] it has been
held that when a deed of mortgage was executed by the wife in the capacity of an owner, which
deed was also attested by the husband, the husband is estopped from denying the title of his
wife.
(ii) Estoppel by silence
Estoppel by silence arises where a person who is under a duty to another to speak the truth,
but refrains from doing so, and thereby leads the other to believe in the existence of a state of
facts in reliance upon which he acts to his prejudice. Mere silence does not operate as an
estoppel unless it is established that there was a duty to speak. A duty to speak arises whenever
a person knows that another is acting on an erroneous assumption of some authority given on
liability undertaken by the former, or is doing with or acquiring an interest in property in
ignorance of his title to it. Estoppel by silence belongs to ‘estoppel in pais’. To constitute an
estoppel by silence or an estoppel by acquiescence, it must appear that the party to estoppel
must be bound in equity and good conscience to speak and the party claiming estoppel relied
upon such silence or acquiescence and was mislead thereby to change his position to his
prejudice.
When silence is of such a character and under such circumstances that it would be fraud upon
the other party, for the party which has kept silence to deny what his silence has induced, it
will operate as an estoppel. A man is bound to speak out in certain cases, and his very silence
becomes an expression as if he has openly consented to what is said or done and had become
a party to the transaction. In Syed Abdul Khader v. Ram Reddy, [AIR 1979 SC 553] has held
that the ostensible owner sold certain land and his son, the real owner, remained silent and
resulted in an estoppel.
In Green Wood v. Martin’s Bank Ltd. [1933 AC 51] it has been held that the husband had a
duty to inform the Bank when he detected the forgery of his signature and his silence for 8
months estopped him from recovering the money.

In Muhammad Hamid-ud-din v. Shib Sahai, [ILR (1899) 21 All. 309], a mortgage who caused
the mortgaged property to be sold in execution of a decree other than decree obtained upon his
mortgage, without notifying to intending purchasers the existence of his mortgage line, was
held to be estopped for ever from setting up that lien against the title of a bona fide purchaser.
(iii) Estoppel in Acquiescence or stand by
‘Acquiescence’ means acceptance or giving consent to something without protest.
The acquiescence to deprive a man of his legal rights must amount to fraud.
Acquiescence implies that a person who is said to have acquiesced did so with Knowledge of
his rights and other person acted in the bona fide belief that he was acting within his rights.
The absence of either of these elements makes the doctrine inapplicable.
Where a party has a right, stands and sees another person dealing with the property in a manner
inconsistent with that right and makes no objection. While the act of another is on progress, or
completed, thereafter the party having right cannot complain under the estoppel by
acquiescence.
In order to establish an estoppel by acquiescence, two factors must be established that:
(1) there is full knowledge of one’s right, the manner acquiesced and its effect over the
property or right; and
(2) the other is encroaching one’s right and must have spent some money or must have
done some act on the faith of his mistaken belief.
Acquiescence signifies that a person who is said to have acquiesced did no with knowledge of
his rights and the other acted in the bona fide belief that he was acting within his rights. The
absence either of these elements does not entitle it to be an estoppel by acquiescence.
In Om Prakash Agarwal v. Bharat Petroleum Corporation, [AIR 2005 Ori. 64], where in case
of allotment of petroleum outlet dealership the applicant, instead of challenging the selection
procedure before the interview, opted to take chance and appeared in the interview, he was
estopped from challenging legality of selection procedure adopted by the Dealer Selection
Board on not being selected as a dealer.
Estoppel by acquiescence or standing by is also provided in section 41 of the transfer of

property Act. For example, A starts constructing a house on B’s vacant land. B does not object
to the construction, although he is the owner of the land. After the construction is complete B
asserts his right. Here B is prevented by the doctrine of estoppel to deny the right of A to
construction. The only remedy for B would be to get compensation from A as if there was a
compulsory sale of the land.
(iv) Estoppel by negligence
Estoppel by negligence is where a man is estopped by another’s misrepresentation, if, in breach

of some duty to the person deceived, he has supplied the person making the representation with
that which was necessary to make it credible. Estoppel by negligence belong to ‘Estoppel in
pais’

Estoppel by negligence arises in the following cases.
(i) The party against whom the plea of estoppel is raised owed a duty to take care to the
party who invokes estoppel or towards the general public.
(ii) Negligence must be prominently connected with the result to which it has led.
In order to create estoppel by negligence mere negligence on the part of the true owner is not
enough. Negligence must be of no serious a character as to amount to a breach of duty by the
owner to the party defrauded or to the general public of which the party defrauded in one.
In Maritime Electric Co. v. General Diaries, [1937 AC 619], it has been held that where low
amount were collected as electric consumption charges, there is no estoppel as it was done by
mistake in computation and it does not relieve the customer from his obligation to pay the true
amount.
In R Roy Co. v. Punjab National Bank, [ILR 1980 (2) Del 1060], in a suit for recovery of
embezzled amount from bank on ground of plaintiff’s forged signature and bank debited
plaintiff’s account on basis of cheques and advices, it was held that when a bank was
maintaining separate ledger for plaintiff’s account and submitting regular statements of account
coupled with confirmation slips which were returned duly signed by plaintiff, such
confirmation amount to acknowledgment and plaintiff would be estopped from challenging
debits balance made due to his neglect.
In G.S. Atwal & Co. Engineers Pvt. Ltd. v. Hindustan Steel Works, [AIR 1989 Cal. 184] in a
case specific instructions were issued by the customer to the bank guarantee in terms of the
contact against mobilisation advance to be received from the beneficiaries; the bank negligently
issued mobilisation advance-cum-performance guarantee, it was held that the beneficiary
cannot invoke guarantee for recovery of loss or damage and the customer not being a party to
the guarantee is not estopped from seeking courts’ protection.
In Mercantile Bank of India Ltd., v. Central Bank of India, [AIR 1938 PC 52] it has been
held that estoppel depends on the existence of some duty, and that is peculiarly so in the case
of an omission. In order to succeed on a plea of estoppel it must be shown that there was a
neglect of some duty owing to the person led into particular belief, or to the general public of
whom that person is one, and not merely neglect of what would be prudent in respect of the
party prejudiced or even of some duty owing to third person with whom those seeking to set
up estopped are not privy and there is a breach of the duty if the party estoppel has not used
due precautions to aver the risk.
(v) Estoppel by Laches
A neglect to do something which one should do or to seek to enforce a right at a proper time
has been termed, with questionable propriety, is called ‘estoppel by laches’. Estoppel by laches
belongs to ‘estoppel in pais’.
The term ‘lache’ means an unreasonable delay in making an assertion or claim, which may
result in refusal. A party to a contract delays in performing the contract, thus causes loss to the
other party, is said to be a latch on the party delaying. It will disentitle him to claim the right
under the contract. The delay may cause abandonment on his part of the contract. It is an

estoppel by laches. Section 55 of the Contract Act, 1872 and the provisions of Limitation Act
1863 imposes certain laches on the parties to the contract, etc.
(vi) Estoppel by acceptance of benefit
A person having accepted a benefit out of a certain transaction is not permitted subsequently
to challenge the validity of the transaction. In M.T.W Tenzing Namgyal v. Motilal Lakhotia,
[AIR 2003 SC 1448], where the owner of the acquired land has accepted the amount of
compensation without any demand whatsoever, he as well as his successors in interest are
estopped and precluded from claiming the title over the land. In Raghunath Debata v. Budhi
Debya, [(1960) 20 JD 82] it has been held that the plaintiff is prevented from denying the
validity as he however, received the balance of sale proceeds after the arrears of rent were
adjusted from the auctioned amount of arrears of revenue.
(vii) Estoppel by Election
Lord Atkin observed “where a person has the choice of two rights either of which he is at liberty
to adopt but not both, and if he adopts one, he cannot afterwards assert the other. When a man
has an option to choose one or the other of two inconsistent things, when he has made his
election, it cannot be retracted. He is thus precluded by estoppel by election. The principle of
estoppel by election applies to both civil and criminal proceedings.”
The two essential elements of an election are:
(i) That the person who is electing should have a choice between the two alternative
courses; and
(ii) he should derive an advantage, on such choice.
where a man is entitled to one of the two inconsistent rights and he has with full Knowledge
done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other.
In Md. Kutubuddin v. State of A.P. [1969 2 SCWR 856] it has been held that where there was
termination of service at the request of the government servant, he cannot challenge the order
as invalid on the ground that it was made under a non-existing rule, as he once elected his
choice to have his service terminated.
In Mareppu Venkata Ramana v. Sri Rama Mandiaran, [AIR 1966 AP 197], it has been held
that a person who has acted as a trustee, of a public temple as evinced by his own admission
and conduct and who has obtained decree of the courts in that capacity cannot subsequently
turn round and claim the temple to be private temple, or the properties as his absolute
properties.
(viii) Estoppel by waiver
Waiver means an act or instance of waiving a right or claim. Where a party intentionally or
under an agreement or under a settlement waives his right in favour of another party, he is said
to have waived his right. However, once he has waived right in a contract or property, he cannot
claim later. If he claims again, the estoppel of waiver comes into operation. Estoppel by waiver
belongs to ‘estoppel in pais’.

Estoppel by contract or agreement
Where parties have agreed a statement of facts as the basis for the transaction between them,
each will be estopped as against the other from questioning the truth of the statement of facts.
It is not necessary that one party should mislead the other; in fact, it is not necessary that either
party should believe in the existence of the stated facts. It is the taking of the stated facts as the
foundation of their transaction which precludes either one of them from afterwards departing
from the foundation. The commonest examples of this sort of estoppel that between landlord
and tenant, licensee and licensor, bailee and bailor and acceptor and drawer of a bill of
exchange.
(1) Estoppel of Tenant. And of Licensee of Person is possession
Section 116 of the Evidence Act states that “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 come 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.”
Section 116 of the Evidence deals with estoppel between (i) a tenant of immovable property
and his landlord and (ii) licencee and the licensor. Section 116 applies only to the immovable
properties.
Tenant and Landlord
Section 116 postulates that there is a tenancy still continuing and that it had its
beginning at a given date from a given landlord, and provides that neither a tenant not
any one claiming through a tenant shall be heard to deny that the particular landlord
had at that date on title to the property.
The estoppel of a tenant is founded upon contract between the tenant and his landlord.
It is one of the most noticeable instances of estoppel by contract.
In Halsbury’s Law of England, it is stated:
“The lessor is estopped from repudiating a lease under which possession has
been given or a tenancy which he acknowledged and the assignee of the lessor’s
interest is estopped from denying anything which the lessor is estopped from
denying.”
A tenant may not dispute the right of his landlord by. saying that he had nothing in the
property. The ground of the doctrine is that inasmuch as the parties have approved that
they should stand in the relation of landlord and tenant, and the one accordingly
received 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 agreement; in other words he cannot set up that the landlord
had no legal title. A person who has obtained possession of a property is in fiduciary
possession and therefore estopped from questioning the title of the person from whom
he obtained the possession.

In Veerraju v. Venkanna, [AIR 1966 SC 629] it has been held that during the
continuance of tenancy, a tenant will not be allowed to deny the title of the landlord at
the beginning of the tenancy; so the tenant cannot acquire by prescription a permanent
right of occupancy in derogation of the landlord’s title by mere assertion of such a right
to the Knowledge of the landlord.
The rule of estoppel between landlord and tenant enacted in Section 116 has three
features; (i) the tenant estopped from disputing the title of his landlord over the tenancy
premises at the beginning of the tenancy; (ii) Such estoppel continues to operate as long
as the tenancy continues and unless the tenant has surrendered possession to the
landlord, and (iii) Section 116 is not the whole law of estoppel between the landlord
and the tenant.
The rule in Section 116 is well settled law that during the continuance of tenancy, the
tenant cannot acquire by prescription a permanent right of occupancy in derogation of
the landlord’s title by mere assertion of such a right to the knowledge of the landlord.
In Bilas Kunwar v. Desraj Ranjit Singh, [AIR 1915 PC 96] it has been held that a
tenant who has been let into possession cannot deny his landlord’s title however
defective it may be so long as he continues to be a tenant and has not surrendered
possession to the landlord. The tenant admitting the title of the landlord and paying him
rent throughout cannot subsequently deny his title.
Relationship of landlord and tenant can be created by written contract or by verbal

contract, when the landlord has put the tenant in possession of the land. It may also be
inferred from the payment of the rent, attornment or other circumstances. If once the
relationship of landlord and tenant is established between the parties, the tenant would
be estopped from disputing the landlord’s title.
Section 116 provides only that a tenant cannot be permitted to deny that the landlord at
the beginning of the tenancy had a title to the property. Section 116 is no bar to a tenant
showing that his landlord had not title at a date previous to the commencement of the
tenancy. The words of the Section leave it open to the tenant to show that his landlord’s
title has subsequently expired.
A tenant is not estopped from saying that on death of the lessor the property did not
devolve on the plaintiff but developed on some body else. A tenant can always plead
that the landlord has lost his title by any act of his or by operation of law.
A tenant is only precluded, during the continuance of the tenancy, from denying that
the landlord had ‘at the beginning of the tenancy’ a title to the property, the subject of
the tenancy. The expression “during the continuance of tenancy” m Section 116 means
“during the continuance of the possession” that was received by or under the tenancy
in question. Where the tenancy had long ago ceased to exist and the tenant does not
continue in possession on the strength of or in pursuance of the tenancy, he is not
debarred from raising the question of competence and validity of the title of the lessor.
The rule of estoppel contained in Section 116 will not apply in such case.
The bar of estoppel would come into play during the continuance of a tenancy and not
when the tenancy is determined.

Where tenancy is itself in question the tenants are not estopped from disputing the
landlord’s title. Again, where the tenancy has been created by fraud, coercion,
misrepresentation or mistake, the tenant cannot be estopped from denying the title of
the landlord. But, in the absence of any such circumstances, as would avoid a contract,
the execution of a lease or a verbal agreement to hold as a tenant, would constitute a
valid tenancy and bring in the estoppel. Once a valid and subsisting lease is established
between the parties the lessee may be bound by the principle of estoppel and may be
debarred from disputing the title of the lessor, but that does not prevent the alleged
lessee to deny the lease and to deny his own status as a lessee. He is bound by the rule
of estoppel only when he acts as a lessee and in that capacity tries to refute the title of
his own lessor.
Licencee and Licensor
The latter part of Section 116 prevents a person who came upon any immovable
property by virtue of licence of the person in possession thereof, from denying that such
person had title to such possession at the time when the licence was given.
A licence is permission given by one person to another to do a certain act. It is personal

right which cannot be sold or assigned to anyone else in any manner. A licence comes
to an end or dies with the person to whom it was given. A licence shall be binding only
against the man who gave it but not against the property and it is generally revocable at
the discretion of the person granting it.
There is no distinction between the law of estoppel of licensee and that of a tenant. A
licensee who has obtained possession through the licence, before he can show that the
licensor had no title when he granted the licence he must first surrender possession of
the premises. When the occupation of the defendant is proved to be permissive, he is
estopped from denying the title of the plaintiff. According to Section 116, the licensee
ought not to deny the title of the licensor.
(2) Estoppel of Acceptor of Bill of Exchange, Bailee or Licensee
Section 117 of the Evidence Act states that “No acceptor of a bill of exchange shall be permitted
to deny that the drawer had authority to draw such bill or to endorse it; not 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 make such bailment or grant such licence.
Explanation I: The acceptor of a bill or exchange may deny that the bill was really drawn by
the person by whom it purports to have been drawn.
Explanation II: 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.”
Sections 116 and 117 deal with the instances of estoppel by contract or agreement. Section 117
has to be read along with Sections 41,42, 120 and 121 of the Negotiable Instruments Act, 1881
and also Chapter 9 (Sections 148 to 181) of the Contract Act, 1872 and Section 26 of the Paper
Currency Act.
Section 117 deals with the estoppel of (i) an acceptor of bill of exchange, (ii) bailee or licensee
and states that they are not permitted to deny that the drawer of the bill had no authority to

draw or endorse it. Similarly, the bailee is not permitted to deny the authority of a bailor or
licensor. Section 117 provides for estoppel to facilitate smooth conduct of commercial
transactions.
(i) Acceptor and Drawer of a bill of exchange
Under Section 117 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 by the person by whom it purports to have been drawn (Explanation I).
Explanation I directs that, in case of forgery, an acceptor of a bill of exchange is

however permitted to deny that the bill of exchange was really drawn by the persons by
whom it purports to have been drawn.
(ii) Bailee and Bailor
A bailee cannot deny that his bailor had, at the commencement of the bailment,
authority to make the bailment. The phrase ‘at the time when the bailment or licence
commenced’ stipulates that at the time when the bailment or licence commenced, there
is no authority to the drawer of bill of exchange, bailee or licensee. A bailee, if he
delivers the goods bailed to a third person may prove that such person had a right to
them as against the bailor (Explanation II). According to Explanation II, in case of
bailment where the bailee delivered the goods to a person other than the bailor, he may
prove that such other person has a better title to such goods.
In Calcutta Credit Corporation Ltd. v. Prince Peter of Greece, AIR 1964 Cal. 374 it
has been held that where an automobile garage received a car for repairs, the garage
owner is estopped from challenging the title of the person from whom the car is
received.
In Gurdial Singh Bedi v. Sunda Hire Purchase Corporation, [AIR 1970 Pat. 7] it has
been held that when the defendant executed a hire purchase agreement of a motor truck
in favour of the plaintiff calling him as owner, the defendant become a bailee and cannot
deny plaintiff’s ownership.
(iii) Licencee and Licensor
The term ‘licensee’ mentioned in Section 117 is different from the term ‘licensee’
mentioned in Section 116. Examples of licensees falling under Section 117 are licensees
from owners of patent or a trade mark.
A licensee cannot be permitted to deny that his licensor had at the time when the license
commenced authority to grant such license. The licensee of a trade mark cannot put an
end to the relation of licensor and licensee by repudiating the contract inasmuch as the
concurrence of the other party is essential.
For example, where a company is granted licence by another company to make use of
its patent to manufacture certain pharmaceuticals is prevented from denying that the
company granting such licence had authority to grant such licence when the licence
commenced.

In Hannah v. Jaganath, [AIR 1915 Cal. 520], where a suit for royalty was brought by
the licensors regarding certain jute trade marks against the licensees. The defence taken
was that the plaintiff had no title to the marks in question and that the license was void,
it was held that by virtue of Section 117, the licensees were estopped from questioning
their licensor’s title or the validity of the license.
In Jagannath & Co. v. Cresswell, [ILR 1915 40 Cal. 814] it has been held that the fact
that a licensee repudiates the contract would not put an end to the relationship between
the parties as the concurrence. of the licensor is necessary to rescind the contract, and
his own repudiation of contract would not give him the right to question the title of the
licensor.
Other kinds of estoppel
(1) Promissory Estoppel (Requisite Estoppel)
The promissory estoppel arises 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.
A promissory estoppel operates to preclude perpetration of fraud or causing injury in a case

where the representation or promise has been made to induce an action on the part of the party
setting up the estoppel. In such a case the party making the promise is precluded from asserting
want of consideration therefor.
Before the Doctrine of Promissory Estoppel is invoked, it must be proved.
(i) that there was a representation or promise in regard to something to be done in the
future.
(ii) that such representation or promise was intended to affect the legal relations of the
parties and to be acted upon accordingly; and
(iii) that it is one on which the other side has, in fact, acted to is prejudice.
In Jindal Thermal Power Co. Ltd. v. Karnataka Power Transmission Corporation Ltd. [AIR
2005 NOC 55 (H) Kant.] it has been held that the Doctrine of promissory estoppel does not
belong to law of contract or evidence but appertains to equity and fairness in action.
In Intrans Systems Pvt. Ltd. v. State of Kerala, [AIR 1996 Ker. 161] it has been held that the
doctrine create any new cause of action where none existed before, and it is subject to the
qualification: (i) that the other party has altered his position; (ii) that the promisor can resile
from his promise on giving reasonable notice which need not be a formal notice, giving the
promisee a reasonable opportunity of resuming his positions (iii) the promise only becomes
final and irrevocable if the promisee cannot resume his position. The doctrine is known
variously as ‘equitable’ or ‘requisite’ or ‘promissory’ or new or ‘quasi’ estoppel. It is a doctrine
evolved by equity in order to prevent injustice.

In State of Arunachal Pradesh v. Nezore Law House, Assam [AIR 2008 SC 2045], it has been
observed that “In order to invoke the doctrine of promissory estoppel clear, sound and positive
foundation must be laid in the petition itself by the party invoking the doctrine and bald
expressions without any supporting material to the effect that the doctrine is attracted because
the party invoking the doctrine has altered its position relying on the assurance of the
Government, would not be sufficient to press into aid the doctrine. The Courts are bound to
answer all aspects including the results sought to be achieved and the public good at large,
because while considering the applicability of the doctrine, the Courts have to do equity and
the fundamental principles of equity must forever be present in the mind of the Court.”
Quasi-Estoppel
Quasi-Estoppel is a term applied to certain rules of law which are analogous to, and yet
different from the principle founding estoppel is pais; certain legal bars which have the same
effect as an estoppel and yet are not strictly such.
The entire basis of Contract Law is that the parties to an agreement intend that their agreement
is not a mere gentleman’s agreement, but one which is legally enforceable. The purpose of
insisting on ‘consideration’ and writing in some cases is to ensure that the agreement involves
legal rights and obligations, which can be enforced in a court of law. If this is so, if one party
promises and the other acts on the promise, in circumstances involving legal rights and
obligations, it is only proper that the parties should be enforced to do what they promised to
do.
Sometimes there may be no agreement and contract in strict sense of the term. But a person
making a promise may become bound by the Rule of Promissory Estoppel.
In Hughes v. Metropolitan Railway Co., [(1 872) 2 App Cas 439], the landlord gave a notice
to the tenant to repair the premises within six months, failing which the lease was to be
forfeited. One month after the notice, the landlord had negotiations with the tenant to sell the
leased premises. Negotiations took more than three months time. However, they were failed on
price. Meanwhile the stipulated time of six months in the notice was passed, and no repairs
were carried by the tenant during that period. After six months, the landlord asked the tenant
to vacate the premises. The tenant contended that the period of six months would commence
from the date of failure of negotiations of sale. The court admitted the agreement of the tenant
and held that the negotiations of the part of the landlord was a promissory estoppel. His conduct
was an implied promise to suspend the notice and the tenant acted on it by not carrying out the
repairs.
According to Denning, “The principle (of promissory’ estoppel) does not create new causes of
action where none existed before. It only prevents a party from insisting upon his strict legal
rights, when it would be unjust to allow him to enforce them having regard to the dealings
which have taken place between the parties....”
In order that doctrine of promissory estoppel may operate the promise must be clear and
unequivocal.
The doctrine of promissory estoppel has the effect of creating substantive rights against the
representative and can be viewed as a rule of substantive law. A representation of fact or
intention on which the doctrine is founded if intended to be acted upon and when acted upon
becomes actionable. The claim for the relief depends upon that representation, which

constitutes the cause of action. The representation be it of promise, or intention or future

conduct, on which this doctrine of promissory estoppel is founded is susceptible of generating
enforceable promises and binding contractual obligations even where there is no consideration
such as at common law would have supported the promises and obligation.
Where a contract gets concluded between the parties the doctrine of promissory estoppel would
not be applicable as to it as the parties are bound by its terms against the violation of which by
any party, the other can take appropriate steps.
Promissory Estoppel Against Government
Where the government makes a promise knowing or intending that. it would be acted on by the
promise and, in fact, the promisee, acting in reliance on it, alters his position, the government
would be held bound by the promise and the promise would be enforceable against the
government at the instance of the promisee, notwithstanding that there is no consideration for
the promise and the promise is not recorded in the form of a formal contract as required by
Article 299 of the Constitution. Everyone is subject to the law as fully and completely as any
other and the government is no exception.
The Doctrine of Promissory Estoppel applies against the government. However, there cannot
be any promissory estoppel against the government from acting in discharge of its duty under
the law. In cases where government is one of the parties, there may arise situations when, to
bind the government to a promise might result in public detriment. In such case, courts will not
compel the government to do what is promised to do. The court will do so only after balancing
the harm to public interest by such compulsion and the harm to the citizen by allowing the
government to go back on its promises. What is important is that the court will be on the qui
vive to see that the government does not act arbitrarily.
The burden would be upon the government to show that the public interest in the government
acting otherwise than in accordance with the promise is so overwhelming that it would be
inequitable to hold the government bound by the promise and the court would insist on a highly
rigorous standard of proof in the discharge of this burden. But even where there is no such
overriding public interest, it may still be competent to the government to rescind from the
promise ‘on giving reasonable notice, which need not be a formal notice, giving the promisee
a reasonable opportunity of resuming his position’. Provided of course it is possible for the
promisee to restore status quo ante.
Where the government owes a duty to the public to act in a particular manner and here
obviously duty means a course of conduct enjoined by law— The doctrine of promissory
estoppel cannot be invoked for preventing the government from acting in discharge of its duty
under the law. The doctrine of promissory estoppel cannot be applied in teeth of an obligation
or liability imposed by law. It may also be noted that promissory estoppel cannot be invoked
to compel the government or even a private party to do an act prohibited by law. There can be
no promissory estoppel against the exercise of legislative power of the State. The doctrine
cannot be used to compel the government to carryout promises contrary to law.
Principles governing application of promissory estoppel
The application of promissory estoppel is governed by the following principles:

(1) The legislature can never be precluded from exercising its functions to legislate by
invoking the principles of promissory estoppel.
(2) Principles of promissory estoppel can be invoked against the government or public
authority subject to the following:
(i) It cannot be invoked to compel it to act contrary to the obligation or liability

imposed by law;
(ii) The doctrine of promissory estoppel being an equitable doctrine, if it is

established on the facts and circumstances that it would be inequitable, in the
larger public interest, to hold the government or public authority to the promise
or representation made by it, it will not be enforced.
(iii) The doctrine cannot be invoked when the representation made by the officer
or authority is beyond their powers.
(iv) The doctrine being an equitable cannot be invoked, if it is shown that the
representation was obtained by playing fraud, having regard to the fact that
fraud vitiates everything.
In Motilal Padampat sugar Mills v. State of U.P., [AIR 1979 SC 621] where the government
changed the sales tax exemption to 3%, 2 1/2%, 2% for the first, second and third years
respectively though they were given total exemption from Sales Tax, the Supreme Court has
held that the government is bound by its promise because relying on that promise the
defendants have suffered detriment, and they have altered their position.
In Union of India v. Anglo Afghan Agencies, [AIR 1968 SC 718] where the government has
announced certain concessions with regard to the import of certain new materials to encourage
export of woollen garments to Afghanistan and subsequently only partial concessions were
extended, it has been held that the government is estopped by its promise.
In the Gujarat State Financial Corporation v. M/S Lotus Hotels Pvt. Ltd., [AIR 1983 SC
848], the Gujarat State Financial Corporation entered into an agreement with the petitioner
company to advance loan for the construction of a 4-Star Hotel. Basing on this, the petitioner
incurred huge amounts towards the procurement of site and construction of building. The
GSFC denied to advance the loan. It has been held that the GSFC has estopped from backing
out of its obligation.
The doctrine of promissory estoppel does not apply to casual statement. No estoppel is created
by a Minister’s statement in the House and reported in newspapers that no import tax would be
levied on rice brought into the state. In Kesoram Industries v. Union of India, [AIR 1977 Cal.
459], where a company undertook to export certain percentage of total production and the
Government, promised subsequent assistance, but withdrew the promise, it was held that such
withdrawal of promise does not give rise to estoppel against the government.
Issue Estoppel
Issue estoppel arises where an issue of fact has been tried by a competent court on a former
occasion and a finding has been reached in favour of an accused, such a finding would
constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and

conviction of the accused for a different and distinct offence but as precluding the reception of
evidence disturb the finding of fact when the accused is tried subsequently even for a different
offence which might be permitted by law. he concept of ‘issue estoppel’ is taken care of by
Section 300 of the Cr.PC and Section 26 of the General Clauses Act, 1897 conditions.
(i) All the principles of res judicata shall apply to Issue Estoppel.
(ii) Parties in the two proceedings must be the same.
(iii) Fact in issue proved or not in the earlier trial must be identical with what as sought
to be reagitated in the subsequent trial.
(iv) The rule of Issue Estoppel is not identical with the rule of double jeopardy. In the
former only an issue relating to fact is proved or disproved in the earlier proceeding,
but operates as a bar in the subsequent proceeding. In the latter, the accused is convicted
or tried in the earlier proceeding for the same offence and for the same cause of action
cannot be punished or tried in the subsequent proceedings under Article 20(2) of the
Constitution of India.
Constructive Estoppel
The term ‘constructive’ means derivative or inferential. Constructive is not that which has the
character assigned to its own nature but acquires such character in consequence of the way in
which it is regarded by a rule of or policy of law. ‘Constructive’ IS used in cases where the true
state of affairs is different from what it is construed to be.
Generally, any person dealing with an incorporated company goes through the Memorandum
of Association and Articles of Association of the company. When a person enters into a
contractual obligation, he is expected to follow those documents and he is deemed to have had
constructive notice of the contents of the documents. Constructive estoppel operates against
such persons who have entered into dealing with the company from denying the contents of
the two important documents.
Non Estoppel Against Statute and Law
The phrase ‘no estoppel against statute’ means that a person who makes a statement as to the
existence of the provisions of a statutory law is not estopped, subsequently, from contending
that the statutory provision is different from what he has previously stated.
According to Halsbury, “where a statute, enacted for the benefit of a section of the public,
imposed a duty of positive kind, the person charged with the performance of the duty cannot,
be estoppel, be prevented from exercising his statutory powers.”
The principle of estoppel cannot override the provisions of a statute. Where a statement is made
as the existence of the provisions of a statutory law, of that which is not true, no plea of estoppel
can be raised by any person who relied on such untrue statements and altered his position.
Estoppel does not operate against the statute as there cannot be any misrepresentation as to the
law. Since the general principal is, ignorance of law is no excuse, everybody is supposed to
know the law of the land.

The doctrine of estoppel cannot be invoked to render valid transaction which the legislature
has, on the ground of general public policy, enacted, shall be invalid or to give the court a
jurisdiction which is denied to it by the statute.
As stated in Avtar Singh v. Sohanlal, [AIR 1970 26 (FB)], the principles to determine the
maxim ‘no estoppel against statute’ are:
(1) The parties must by bilateral agreement seek to contract out of the statutory
provisions of some Act.
(2) The statutory provision must have express prohibition of the agreement entered into
by the parties.
(3) The provision of law must be made for the public interest.
(4) It must not be meant purely for benefit of particular class of person.
(5) The agreement of parties should not have been merged into an order of the court
which by the conduct of the parties had been dissuaded from performing its statutory
obligations.
The plea of estoppel cannot be raised in order to render a transaction valid, which the legislature
has on grounds of public policy enacted that it shall be invalid, or to give the court a jurisdiction
which is denied to it by the statute.
Estoppel only applies to a contract inter parties and it is not competent to parties to a contract
to estop themselves or anybody else in the face of an Act.
Where a statute imposes a duty by a positive action, estoppel cannot prevent it. Estoppel is only
a rule of evidence which can be invoked under special circumstances but is not available to
release a party from the obligation to obey a statute.
There is no estoppel against statute nor it can be used to prevent legislative and executive
organs of the state from performing their functions. If the law requires that a certain tax be
collected, it cannot be given up and any assurance by the government that it would not be
collected would not bind the state government, whenever it chooses to collect it.
Doctrine of estoppel does not apply to Income Tax Act, as equity is out of place in tax laws.
Whether a particular income is to be taxed or not is a matter under the taxing statute. If it is not
taxable under the statute, it cannot be taxed on the basis of estoppel or under any other equitable
doctrine. Income cannot be taxed on the basis of estoppel or any other equitable doctrine.
When there is a clear and unambiguous provision of law which entitles the plaintiff to the relief
claimed, no question of estoppel arises. If the terms of a statute are absolute and do not admit
of any relaxation or exemptions, then anything done contrary to the terms of such statute will
be ultra vires and will be void and no person can be estopped from putting for contention that
what he did was illegal or void, on the other hand if a statute having presented certain conditions
or qualifications for the doing of a certain thing itself provides for exemption therefrom under
certain circumstances or authorities some body to exercise the power of exemption then
anything done in terms of those conditions or qualifications will not be ultra vires and will be

said to be merely irregular and to such an act, the proposition that there can be no estoppel
against a statute will have no application.
If the statute is solely for the benefit of a person he may waive his right or benefit if he thinks
fit or give up the rights of a private or personal nature created under an agreement, but he
cannot waive a benefit conferred by a statute which has public policy for its object.
In Barisal Co-operative Central Bank v. Benoy Bhusan Gupta, [AIR 1934 Cal. 537] a person
who has received the allotment of shares on terms of a certain bye-law in subsequently estopped
from pleading that the bye-law is ultra vires.
In Narasimhan v. Ramdayal, [AIR 1966 AP 134], it has been held that award of an arbitrator
can be filed only in the Court in which the suit would be with regard to the subject-matter of
reference and an agreement between parties to file in a different court is against the statute and
cannot be given effect to.
In Pioneer Agro Extracts Ltd. v. state of Punjab, [AIR 2002 P&H 135] where the Government
has granted exemption from Sales Tax for growth of industry under a package, State
Government cannot be estopped from imposing cess under the provisions of other Acts.
In Union of India v. Narain Singh, [AIR 1953 Punj. 274], a bidder at an auction of liquor shop
held under the Punjab Excise Act is not estopped from challenging the legality of the conditions
of sale announced at the time of the auction, if they are at variance with the conditions laid
down by the statutory rules.
Equitable Estoppel
A man may be estopped, not only from giving particular evidence, but from doing acts, or
relying upon any particular argument or contention which the rules of equity and good
conscience prevent his using as against his opponent.
‘Equitable estoppel’ is estoppel in pais signifying estoppel by misrepresentation. The Equitable

estoppels are so called not, because their recognition is peculiar to tribunals, but because they
arise upon facts which render their application in the protection of rights equitable and just.
The doctrine is recognised in the courts of common law just as much as in courts of equity,
although it was at first administered as a branch of equity jurisprudence.
The doctrine of equitable estoppel rests on the principle that where a party with full knowledge
or with sufficient notice or means of knowledge of his rights ‘and of all the material facts
remains inactive or abstains from impeaching a transaction or freely does what amounts to a
recognition thereof, or acts in a manner inconsistent with its repudiation so as to effect the
situation of the parties so that the other party is induced to suppose that it is recognised. This
amounts to acquiescence and the transaction although originally impeachable becomes
unimpeachable. One cannot originally be estopped to assert the direct violation of a statutory
provision but equitable estoppel being a rule of justice should prevail over all other rules.
Which is familiarly known as a rule in Ramsden v. Dyson, the rule of equitable estoppel has
assumed new dimension in recent years. Equitable principle of estoppel against public bodies
has been noted where the interest of justice, morality and common fairness clearly dictate such
a course. The doctrine of estoppel is not applied to the legislative powers of a State. But, in a

welfare state, the government undertake some ministrant functions. A state may be held
estoppel where varied activities have been performed.
In Kamalendu Prasad v. Sambalpure University, [AIR 1976 Ori. 134 (DB)], it has been held
that a representation made by one party for the purpose of influencing the conduct of the other
party and acted upon by him, will, in general, be sufficient to entitle the latter to obtain the
assistance of the court in equity for the purpose of realising the fruits of such representation.
A claim for compensation by a tenant against his landlord for improvement effected to the
demised property may be rested on the doctrine of equitable estoppel though the law does not
generally recognize any right in a lessee to improve the lease-hold estate and claim
compensation from the lessor for the same after the expiration of the lease. Mere standing by
and failure to object by the lessor when the tenant builds on the demised land is not sufficient
to attract the doctrine. What required is that there should be active encouragement by the
landlord and an implied promise the in case the tenant was ejected he would be paid
compensation.
In Venkateswami Naidu v. Muniappa Mudaliar, [AIR 1950 Mad.53], when a person in bona
fide belief that a certain property belongs to him, spends money upon it and the true owner
stands by allowing him to spend money and make improvements upon the land, the true owner
is estopped from asserting his title to the land as against the person making improvements in
such bona fide belief.
In Gwalior Rayon Silk Mfg. Co. Ltd. v. State of Kerala, [1972 KLT 628 (FB)], it has been
held that surrender of Government of its legislative powers to be used for public good cannot
operate as equitable estoppel against Government.
Distinction between Estoppel and Res Judicata
Res judicata is a case or suit already decided or a thing definitely settled by judicial decision
or judgment.
Estoppel by records results from the judgement of a competent court. The law allows a party
ample opportunity by way of appeal and otherwise, of upsetting a wrong decision. And if he
takes the opportunity and fails, or does not choose to avail himself of it, he cannot subsequently
re-open or dispute that decision.
The principle of estoppel and res judicata are based on public policy that if the controversy in
issue is finally determined or decided by the competent court and if such decision attains
finality, then it will be illogical to allow the parties to such proceedings to reopen the same
issue again and again which not only destroys the binding nature of judicial pronouncement,
but also renders such decisions nugatory.
The plea of res judicata proceeds upon the grounds of public policy properly so called, whilst
an estoppel is simply the application of equitable principles between man and man- two
individual parties to a litigation.
Estoppel is a part of the law of evidence (Secs. 115 to 117 of the Evidence Act) while res
judicata belongs to the Civil Procedure Code (Sec. 11).

In the case of estoppel, it is the person who is estopped through declarations, conduct and acts,
while in the case of res judicata, it is the court that decides to cease to have jurisdiction.
The object of Estoppel is a person alleging contradictory facts should not be heard whereas the
object of Res Judicata is to put an end to litigation.
Estoppel precludes a party from contradicting his previous declarations or acts, to the prejudice
of the party, who relying upon them, altered his position but res judicata prohibits the court
from enquiring into a matter already adjudicated.
Estoppel shuts the mouth of a party and prevents him from making contradictory statement
whereas res judicata ousts the jurisdiction of the court and prevents it from deciding over again
a matter already decided upon by a competent court.
The shortest way to describe the difference between the plea of res judicata and estoppel is that
while the res judicata prohibits the court from adjudicating a matter already adjudicated upon,
the estoppel prohibits a party after the enquiry has already been entered upon from proving
anything which would contradict his own previous declaration or acts to the prejudice of
another party who relying upon those declarations of acts, has already his position.
Res judicata prohibits an enquiry in limine whilst an estoppel is only a peace of evidence.
Distinction between Estoppel and Waiver
Estoppel and waiver are totally different conceptions. Estoppel is not a cause of action it is a
rule of evidence. It may assist a plaintiff in enforcing a cause of action by preventing a
defendant from denying the existence of some fact essential to establish the cause of action;
waiver, on the other hand, is contractual, and may constitute a cause of action. Waiver is an
agreement to release or not to assert a right.
Bearing a matter of contract the waiver must be for good and valuable consideration but in
estoppel there is no question of consideration. A representation is made, believed in, and acted
upon, and the principle of estoppel will operation.
There can be an estoppel by omission i.e. an estoppel by silence. There can never be a waiver
by silence.
Waiver requires a positive statement that certain rights are being waived i.e. given up for good
consideration. Waiver, to be effective, requires full knowledge of all the facts and if there was
a mistake waiver may not come into play. In the case of estoppel, mistake has no effect at all.
Under estoppel the principle of agency is not applicable while under waiver an agent can agree
to waive his principles right. If an agent, with authority to make such an agreement on behalf
of his principal, agrees to waive his principals rights, then, subject to any other question such
as consideration, the principal will be bound, but he will be bound by contract, not by estoppel.
There is no such thing as estoppel by waiver.
When the aggrieved party proves estoppel, he obtains substantive right whereas the person who
waives his right intentionally he looses his substantive right. 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. Waiver m an agreement to release or not to
assert a legal right while estoppel is a rule of evidence.
Difference between Estoppel and Presumption
Estoppel differs from presumption. An estoppel is a personal disqualification laid down upon
a person peculiarly circumstances from proving peculiar facts; whereas a presumption is a rule
that particular inferences shall be drawn from particular facts, whoever proves them.
In the case of mere presumption, evidence to rebut the presumption can be given; but in the
case of estoppel, the party would be estopped from denying the truth of a representation if the
representation has been believed in and acted upon by another.
Estoppel is one of facts whereas presumption may be of fact or law.
Estoppels are of 3 kinds namely (i) estoppels by matter of record; (ii) estoppels by deed and
(iii) estoppel by pais. and presumptions are of 3 kinds, namely (i) presumption of fact (ii)
Presumption of law and (iii) rebuttable presumptions of law (iii) (a) rebuttable presumptions
of law and (b) irrebuttable presumptions of law.
Presumptions may be classified as (i) may be presumed (ii) shall be presumed and (iii)
conclusive proofs.
Presumptions are inferences of a certain fact drawn from other proved facts. Section 114 of the
Evidence Act gives absolute discretion to the court of presume the existence of certain facts in
the manner specified therein.
Difference between Estoppel and Admission
Estoppel is a rule of evidence, which precludes a party to contradict his previous representation
or conduct while an admission is a statement which suggests an inference as to any fact in issue
or relevant fact.
Estoppel binds only parties and privies and strangers cannot take the advantage of estoppel
whereas an admission is taken as advantage by the parties and even by the strangers.
An action cannot be founded on estoppel but an admission may form the basis of judicial
pronouncement.
An estoppel is conclusive while an admission can be rebutted against their makers and those
claiming under them.
Estoppel is only a rule of law and it does not give rise to a cause of action, but admission is a
thing which provides a cause of action.
The Doctrine of Estoppel applies only in the Civil Proceedings whereas the Doctrine of
Admission is applicable to both the Civil and Criminal Proceedings.
The Doctrine of Estoppel does not operate against a person who was non-existent at the time
when the transaction took place but the Rule of Admission operates against a person who was
non-existent at the time when the transaction took place.

Every estoppel is a statement of admission and its formation but every admission need not be
an estoppel. However, admission can also operate as estoppel where a person relying on such
admission has altered his position.
***

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EVIDENCE ACT LECTURE – XIII (SECTIONS 115-117)

INDIAN EVIDENCE ACT

Estoppel is the conclusive ascertainment of a fact by the parties, so it no longer can be

Estoppel is the preclusion of a person from ascertaining a fact, by previous conduct/inconsistent

According to Tomlin’s law Dictionary “Estoppel is an impediment or bar to a right action

THE INDIAN EVIDENCE ACT | 1

Doctrine or concept or principles or law or rule of estoppel

Estoppel is a rule of evidence which in certain circumstances precludes a person from

THE INDIAN EVIDENCE ACT | 2

He must not be allowed to prove his want of title.

Phipson and Elliot give two simple examples of estoppel.

Essential conditions for the application of the Doctrine of Estoppel

As observed in Chhaganlal Keshavalal Mehta v. Patel Narandas Haribhai, AIR 1982 SC

THE INDIAN EVIDENCE ACT | 3

(3) the representation must have been meant to be relied upon;

A question of estoppel must be decided on ordinary common law principles of construction

An estoppel arises from an act or declaration of a person intended or calculated to mislead

Examples for estoppel are:

THE INDIAN EVIDENCE ACT | 4

The doctrine of estoppel is not applied to the following

(i) Estoppel does not apply to the criminal proceedings.

(ii) A stranger cannot take the advantage of estoppel.

(iii) where there is no duty, there is no estoppel.

Estoppel by matter of record

Estoppel by record is founded, either on a judicial or a legislative record. A matter of record is

THE INDIAN EVIDENCE ACT | 5

In Halbury, it is observed. “Estoppel of record or of quasi-record, also known as estoppel per

THE INDIAN EVIDENCE ACT | 6

THE INDIAN EVIDENCE ACT | 7

Estoppel by Deed or Writing

THE INDIAN EVIDENCE ACT | 8

In an agreement between A and B, an arbitration clause naming X as an arbitrator was

Other Estoppels of Deed

(i) Estoppel by warranty:

(ii) Technical Estoppel

(iii) Title or Right by estoppel

Estoppels in Pais [Estoppel by conduct or representation]

THE INDIAN EVIDENCE ACT | 9

Estoppel by conduct is on the same footing as estoppel by representation.

THE INDIAN EVIDENCE ACT | 10

Estoppel in pais may arise in the following cases:

(i) Estoppel by attestation

(ii) Estoppel by silence

THE INDIAN EVIDENCE ACT | 11

(iii) Estoppel in Acquiescence or stand by

‘Acquiescence’ means acceptance or giving consent to something without protest.

In order to establish an estoppel by acquiescence, two factors must be established that:

Estoppel by acquiescence or standing by is also provided in section 41 of the transfer of

(iv) Estoppel by negligence

Estoppel by negligence is where a man is estopped by another’s misrepresentation, if, in breach

THE INDIAN EVIDENCE ACT | 12

Estoppel by negligence arises in the following cases.

(v) Estoppel by Laches

THE INDIAN EVIDENCE ACT | 13

(vi) Estoppel by acceptance of benefit

(vii) Estoppel by Election

The two essential elements of an election are:

(ii) he should derive an advantage, on such choice.

(viii) Estoppel by waiver

THE INDIAN EVIDENCE ACT | 14

Estoppel by contract or agreement

(1) Estoppel of Tenant. And of Licensee of Person is possession

Tenant and Landlord

In Halsbury’s Law of England, it is stated: