Q-1

A. Principle and conditions of estoppel (115) The word 'estoppel' came from French word
'estoupe which which in English as 'stopped' in law. The term was adopted by the
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). According to
Tamlin'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 any one who is affected by it is not
permitted to contradict it." 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 doctrine of Estoppel is stated under Section 115 of the Indian Evidence Act,
1872.Estoppel is based on the principle that it would unjust, if a person intentionally by
conduct or in any other manner has induced other person to believe and act upon such a
representation, neither he or those representing can in a subsequent Court proceedings
deny the truth. The accused does through omission, act or declaration. The idea that a man
must keep his word and must be responsible for the consequences of his conduct when
other men have trusted him is accepted by all civilizations. As law developed, this was
recognized as a part of the legal system even though the same is not codified as such. Thus
estoppel was used by the courts for preventing injustice in appropriate fact situations.
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.]

Section 115 of the Indian Evidence Act, 1872 lays down the principle of
estoppel as a rule of evidence. It provides that "when one person has, by his
declaration, act or omission, intentionally caused or permitted another person
to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and
such person or his representative to deny the truth of that thing". The
illustration to this section reads as follows: 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". Thus as a rule of evidence the same is
codified in India. As a rule of substantive law, it is entirely judge made, both in
England and in India. The principle is evolved as a result of compulsions felt by
the Judges when called upon to adjudicate cases based on equity and good
conscience in the absence of any statutory provision dealing with the subject
matter of the case. The result is that the rule is invoked and applied even in
cases where there is no pre-existing legal relationship between the parties to a
cause either in the form of a contract or otherwise. The principles are applied
even to a mere promise to perform an act in future even if the promise is not
supported with consideration. All that is required to be established is that the
promise made was intended to be acted upon and on that belief someone did
act and altered his position.

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.
In Soanes 's case [Soans v. London and South Western Railway,
(1919120 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.

In the case of B. L Shreedhar v. K.N Munireddy,( A.I.R 2003 SC 578)

Supreme Court stated that a doctrine of estoppels is capable of
creating or defeating rights. Estoppel differs from presumption, as
estoppels is a personal disqualification laid upon a person peculiarly
circumstanced from proving peculiar facts, while presumption rule is
that particular inference will be drawn from particular facts.

Conditions 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.

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 principlc 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.

Overview

Evolution of Doctrine of estoppel

The study of the evolution of the doctrine of estoppel can be done by
comparing its development in English law and Indian law.

Development in English Law

The foundation for this doctrine was first laid down in English Law, in the
case of Hughes v. Metropolitan Railway Co. [22] In the particular case,
Hughes leased his land to Metropolitan Railway Company to carry out repair
work. The defendants were required to complete it in 6 months time period,
and if it failed the lease would stand forfeited. The parties to the agreement
negotiated another agreement by which the railway company was to
purchase the freehold of the land.
Both the parties were under the delusion that transfer of property would take
place and therefore the defendants didn’t carry out the repair work. He
believed that sooner he would be having the freehold of the property and
those repairs are of no use to him. But towards the end of the 6 months
period, the negotiation dissolved and the plaintiff gave the notice to forfeit
the lease.

The court upheld that when negotiation was initiated there was an implied
promise to forfeit the lease with respect to the limited time period. The
Railway company acted upon this promise which proved out to be
detrimental to them. The doctrine of estoppel was thus applied and the
railway company was given more time to complete the repair work.

Even after this case, the doctrine of estoppel had not gained much attention
until Lord Denning delivered his judgement in the case of Central London
Property Trust Ltd. v. High Trees House Ltd. [23] The defendants, High
Trees, rented his flat to the plaintiff in return for a certain amount of money.
Due to the outbreak of World War II this amount was reduced to half as his
occupancy rate was decreasing. When the war ended the defendant
continued to pay half of the amount of rent, claiming that the plaintiff had
not mentioned any time period while entering into the agreement. Plaintiffs
sued the defendant for payment of the full amount of rent.

Applying the principle of estoppel laid down in the case of Hughes v.

Metropolitan Railway Co. [24] the court said that it was implied that the
reduced rate is limited to the time till the war continues, and so the
defendants are liable to pay the full rent.

Development in Indian Law

The Doctrine of estoppel in general and promissory estoppel, in particular,
was recognized in India from the case of Sourujmull And Ors. v. The Ganges
Manufacturing Co.[25], where the Calcutta High Court determined that this
doctrine would also apply in other situations where a person can be estopped
from performing certain acts or depending completely upon particular
arguments or claim or contention. This implies, as laid down in the
judgement, that the doctrine of estoppel is not limited to the law of
evidence.

Promissory Estoppel
The history of promissory estoppels can be traced back
to England, derived from the principle of
equity to avoid injustice.
Once a party, by his words or conduct makes a legally
binding promise to another party, if the other
party has acted upon these words or conduct, the one
who made the promise or gave assurance
cannot revert back to his previous position. He must
concede to the existence of this legal
relationship subject to the representation he
introduced. It differs from estoppels properly so called
because the representation relied upon need not be
one of present fact.
An example will help. Suppose you are the principal of
a small high school. A musician approaches
you to discuss implementing a music program on
campus. Excited about the possibilities this will
bring to your students, you begin planning for the
program. You order construction of a new building
complete with soundproofing and a stage. Next, new
furniture and fixtures, drums and tubas are
delivered. You may even hire staff to manage the new
music program. Then, in one fell swoop, the
promise is retracted. The musician simply changes his
mind. You might think that, without a contract,
there is no recourse to recover not only the expenses
but the embarrassment of having this promise
broken.
Well, the law cannot help you with the
embarrassment, but the doctrine of promissory
estoppel can
help you to recover your losses. It states that an
injured party can recover damages if those damages
were the result of a promise made by a promisor and
the promise was significant enough to move the
promisee to act on it.
The application of the doctrine would negate the
constitutional provision, as under Article 299, which
affords exemption from personal liability of the person
making the promise or assurance.
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.
(iii)that it is one on which the other side has, in fact,
acted to is prejudice.

ANS-2
Introduction

The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which
means to verify or show clearly as a proof about something. Evidence simply
means the state of being evident which is only applied to the things that give
proof about something.

As defined by Sir Blackstone, ‘Evidence’ means what illustrates, clarifies or learn

the reality of current realities or focuses on issue either on one side or the
other.

Law of Evidence according to Sir Taylor implies as a way through which the truth
of an argument is proved or disapproved by the judicial investigators is shown.

Different forms of evidence are presented in Indian court daily and that area is
governed by the Indian Evidence Act, 1882.

Definition of evidence in the Indian Evidence Act

According to Section 3 of the Evidence Act 1872, evidence means and
includes:

 All such statements which the court allows or needs to be presented

before it by the witnesses in connection to matters of fact under
inquiry. These statements are termed as oral evidence.
 All such documents including any electronics record, presented
before the court for inspection. These documents are termed as
documentary evidence.

In a Landmark case the Hon’ble Supreme Court in Kalyan Kumar Gogoi v.

Ashutosh Agnihotri and Anr. [AIR 2011 SC 760], held that the word
“evidence” is used in common parlance in three different senses: (a) as
equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the
material, based on which Courts conclude the existence or non-existence of
disputed facts.

However, oral and documentary evidence are the two main kinds of evidence.

Oral Evidence
Evidence that is restricted to spoken words, gestures or motion is known as
Oral evidence. It is evidence that has been personally heard or seen by the
witness. Oral evidence must always be direct or positive which means it goes
straight to establish the main fact in the issue. Section 3 of Evidence Act 1872
defines evidence as “All statements which the court permits or requires to be
made before it by witnesses, about matters of fact under inquiry, such
statements are called as oral evidence”. The word oral indicates something
spoken or expressed by mouth; so anything which is accepted in the court
about the inquiry and expressed by any witnesses who are called in the trial is
called oral evidence.

The importance of Oral evidence has been explained by the Bombay High
Court in one of the cases that “if the oral evidence is proved beyond
reasonable doubt it can also be enough for passing conviction”.

Documentary evidence
Section 3 of the Indian Evidence Act defines documentary evidence – All
documents presented before the court for inspection, to demonstrate or show
a reality are called documentary evidence. This definition also includes
electronic records produced before the court. Chapter 5 of the Indian
Evidence Act deals with documentary evidence. Section 61 to 90A falls under
this chapter. Sections 61 to 73A deal with the general rules for proving
documentary evidence in various cases, specifically Sections 61-66 of the Act,
which gives answers to the questions that how the contents of a document are
to be proved. The content of documentary evidence can be separated into
three sections that are:
 How can the subject matter of a document be demonstrated?
 How the record is to be proved to be authentic?
 How far and in what instance oral evidence is excluded by
documentary evidence?
Sections 74 to 78 deal with public documents and Section 79 to 90-A deal with
presumptions as to documents.

There is an ancient Roman proverb that is “Vox Audita Perit, Littera Scripta
Manet” which means that Spoken Word will Vanish, but the Written Word
Remains. Hence the law of evidence recognises the superiority and credibility
of documentary evidence as against oral evidence. There are two kinds of
documentary evidence:

Public Documents (Section 74)

A public document is a reproduction of an entry contained in some kind of
public register, book or record relating to relevant facts or a certified copy
issued by an authority. Documents such as a birth certificate, marriage
certificate, a bill of a public water utility, an FIR filed before the police station
etc are some examples of public documents.

Private Documents (Section 75)

Documents like letters, agreements, emails, etc. which are exchanged
between contesting parties to a litigation are private documents.

Courts generally lean in favour of accepting public documents more readily

than private documents as the presumption is that the risk of tampering with
public documents is far less. Additionally, public documents have genesis to
some reliable source that can be traced back to for verification if necessary.

Section 61 provides that the contents in documentary evidence can be

proved by
a) Primary Evidence (Section 62)
These are the “original documents” that are produced in the court for
inspection. There are 2 special circumstances explained under this section:

 When a document is executed in parts. In such cases, each part

is the primary evidence of the document.
 Where several documents are made by one uniform process

such as printing, lithography or photography, each is the primary
evidence for the contents of the rest.
b) Secondary Evidence (Section 63)
Section 63 of the Act provides Secondary Evidence.

Secondary evidence means and includes:

Certified copies.

Copies made from the original using a mechanical process while

ensuring the accuracy of the copy.
 Copies made from and compared with the original.
 Oral accounts of the contents of a document given by some
person who has seen it.
When the contents of a document are to be verified by oral evidence then
such document becomes secondary evidence.

Special Provision as to evidence relating to electronic record and admissibility: Section 65-
A & 65-B
Section 65-A provides that the contents of electronic records may be proved in accordance with
the provision of section 65-B. It may be noted that section 65-A & 65-B are new insertions to the
original act and are inserted by an amendment in the year 2000. Earlier it was becoming a
difficult task to prove the electronic evidence in courts as no explicit provision provided an
authenticity to the electronic records and with the increasing use of electronic mediums and with
the emergence of the digital era, it became imperative on Indian courts to make electronic
records admissible to ensure justice in its truest sense.

According to section 65-B, any information contained in an electronic record which is printed on
paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be
deemed to be also a document provided condition mentioned in the section is satisfied.

The conditions shall be as follows:

 Computer output containing the information was produced by a computer that was
regularly used to store or process such information by a person having lawful
control over the use of a computer.
 Such information was regularly fed in such a computer during the ordinary course of
activities.
 The computer should be operating properly during the period for which the
information is sought. Even if the computer was not operating during such a period
then the defect was not as such to affect the electronic record or the accuracy of its
contents.
 The information contained in the electronic record reproduced or is derived from
such information fed into the computer in the ordinary course of the said activity.
A certificate is required by virtue of section 65-B if the statement is to be given, then following is
be duly regarded:

 Identifying the electronic record containing the statement and describing how it was
produced.
 Giving such particular of any device involved in the production of that electronic
record as may be appropriate for showing that the electronic record was produced
by a computer.
 Dealing with any of the matters to which the condition as provided above.
Provisions related to Attested documents
Section 68 of the act provides that if a document is required by law to be attested, it shall not be
used as evidence until one attesting witness has been called to prove the execution, provided
there is an attesting witness alive and is subject to the process of the court. This section is not
permissive or enabling. It lays down the requirement which the parties have to observe so that a
document can be held to be proved. The principle underlying the section is that execution of the
will must be proved by at least one attesting witness.

Section 69 provides for the situation in which there is no attesting witness found. As per this
section, if no such attesting witness can be found, it must be proved that the attestation of at
least one attesting witness is in his handwriting and that the signature of the person executing
the document is in the handwriting of that person.

As per section 70 of the evidence act,1872, the admission of a party to an attested document of
its execution by himself shall be sufficient proof of its execution as against him, though it is a
document required by law to be attested. This section serves as a proviso to section 68. The
effect of this section is to make the admission of executant a sufficient proof of execution of
document as against the executant himself even it may be a document for which attestation is
required by law. Owing to this reason only, the document does not become binding on other
parties or persons.

Section 71 provides for a Proof when attesting witness denies the execution. If the attesting
witness denies or does not recollect the execution of the document, its execution may be proved
by other evidence. In Ram Ratan v. Bittan Kaur, it was held that this section only operates if the
attesting witness denies or does not recollect the execution of the document or has turned
hostile.
When a document is not required by law to be attested, then provision of section 72 applies and
the document shall be proved as if it was unattested.

As per section 73, to ascertain whether a signature, writing or seal is that of the person by whom
it purports to have been written or made, any signature, writing, or seal admitted or proved to
the satisfaction of the court to have been written or made by that person may be compared with
the one which is to be proved, although that signature, writing, or seal has not been produced or
proved for any other purpose.

While section 73 A provides for proof as to verification of the digital signature. In order to
ascertain whether a digital signature is that of the person by whom it purports to have been
affixed the court may direct:
  That person or controller or the certifying authority to produce the digital signature
certificate.
 Any other person to apply the public key listed in the digital signature certificate and
verify the digital signature purported to have been affixed by that person.
Provisions Regarding Public Document
Section 74 enumerates that the following are public documents:

1. Documents forming the acts, or records of the acts-

2. Of the sovereign authority,
3. Of official bodies and tribunals, and
4. Of public officers, legislative, judicial and executive of any part of India or the
commonwealth, or a foreign country.
5. Public records kept in any state of private documents.
Documents are divided into two categories:

 Public
 Private
The section states what comes in the category of public documents. Section 75 states that all
other documents are private documents. Section 74-78 deal with:

1. Nature of public document, and

2. The proof which is given of them.
Section 74 defines their nature and section 76-78 deals with the exceptional mode of proof
applicable in their case. The proof of private documents is subject to the general provisions of
the act relating to the proof of documentary evidence contained in section 71-73.

Public documents form an exception to the hearsay rule and their admissibility rest on the
ground that the facts contained therein are of public interest and the statements are made by
authorized and competent agents of the public in the course of their official duty.

Presumptions as to documents
Section 79-90 Section deals with certain presumptions as to documents.

Section 79 provides that the court shall presume to be genuine every document purporting to be
a certificate, certified copy, or the document, which is by law declared to be admissible as
evidence of any particular fact which purports to be duly certified by any officer of central
government or a state government, or by any officer who is duly authorized by the central
government. Provided that such document is substantially in the form and purports to be
executed in the manner directed by the law in that behalf. This section proceeds upon the
maxim Omnia proesumuntur rite esse acta. It means all acts are presumed to be rightly done.
Though the courts are directed to draw the presumption in favor of an official certificate, it is not
a conclusive presumption, it is rebuttable.
Section 80 provides whenever any document is produced before any court, purporting to be a
record or memorandum of the evidence, or of any part of the evidence given by a witness in a
judicial proceeding or before any officer authorized by law to take such evidence, or to be a
statement or confession by any prisoner or accused person, taken following the law, and
purporting to be signed by any judge or magistrate, or by any such officer, the court shall
presume that the document is genuine, that any statements as to the circumstances under which
it was taken, purporting to be made by the person signing it, are true and that such evidence,
statement or confession was duly taken.

Section 81 provides for presumptions as to gazettes, newspapers, private acts of parliament, and
other documents. This section casts a presumption on the courts to presume documents
purporting to be London gazette or any official gazette or to be newspaper or journal and such
documents to be genuine. Section 81 A is a corresponding section and provides for the
genuineness of documents in electronic form.

Section 82 provides for presumption as to document admissible in England without proof of seal
or signature. These provisions have lost their relevance in today’s era because India is now an
independent nation and is not a colony of Britain. Section 83 relates to presumption regarding
maps or plans made by the authority of government.

Section 84 deals with presumption as to books and decisions printed or published under the
authority of government. While section 85 deals with presumption as to power of attorney.
According to section 85, the court shall presume that every document purporting to be the
power of attorney which is executed before Notary public or any court, to be so executed and
authenticated. Section 86 provides presumption as to certified copies of foreign judgment and
records.

Section 87 provides for presumption as to maps and charts, provision regarding telegraphic
messages is dealt in section 88 of the act. Section 89 deals with presumption as due execution of
document not produced before the court. In Kodri Smt. v. L.RS of Fakira, a document is shown to
have remained unstamped for some time after its execution, the party who relied on it must
prove that it was duly stamped.
While section 90 deals with documents more than 30 years old. Where any document purporting
or proved to be thirty years old, is produced from any custody which the court in particular case
considers proper, the court may presume that the signature and every other part of such
document, was duly executed and attested by persons.

ANS-3
https://www.lawaudience.com/wp-content/uploads/
2021/05/The-Concept-of-Accomplice-Witness-Under-
the-Indian-Evidence-Act-1872.pdf
https://old.amu.ac.in/emp/studym/100005730.pdf

https://www.ijlmh.com/wp-content/uploads/
2019/03/Authenticity-of-Accomplice-Evidence.pdf