DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE:

THE DOCTRINE OF ESTOPPEL

SUBJECT:

THE LAW OF EVIDENCE

NAME OF THE FACULTY:

DR.C.M.RAO

NAME OF THE STUDENT:

KODURI LAKSHMI PRAHARSHITHA

ROLL NO:

2017038

SEMESTER – V

SECTION – A

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ACKNOWLEDGMENT:

“I am highly indebted to my labour law professor, DR. C.M.Rao for giving me a wonderful
opportunity to work on the topic: “THE DOCTRINE OF ESTOPPEL”, and it is because of his
excellent knowledge, experience and guidance, this project is made with great interest and effort.
I would also like to thank my seniors who have guided my knowledge of doing research on such
significant topic. I would also take this as an opportunity to thank my parents for their support at
all times. I have no words to express my gratitude to each and every person who have guided and
suggested me while conducting my research work”.

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 CERTIFICATE

This is to certify that the project entitled, “THE DOCTRINE OF ESTOPPEL" submitted by
"K.L.PRAHARSHITHA is a bonafide record of work done under my supervision and to the
best of my knowledge, the matter embodied in the project has not been submitted to any other
University. This project is the own research work done by the student and there is no plagiarism.

DR.C.M.RAO
(Project Guide Name)

ABSTRACT:
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The doctrine of Estoppel is a common law principle which prevents a party from asserting a fact
or putting up claim inconsistent with the position he previously took. It is said to be a rule which
preludes a person from saying one thing at one time and another thing, totally in consistent with
the earlier one, at another stage. In Black’s New Dictionary, “estoppel” is indicated to mean
“that a party is prevented by his own acts from claiming a right to the detriment of other party
who was entitled to rely on such conduct and has acted accordingly.” There are various kinds of
estoppels like estoppel by res judicata, estoppel by deed, estoppel by conduct, promissory
estoppel, proprietory estoppel etc, each one with fine distinctions with another. Appearing
initially as a negative aspect in the field of evidence, the principle has extended its scope. Ever
since the principle of estoppel has been expounded and applied in judicial proceedings there has
been a conflict of views as to whether estoppel is a rule of evidence or a rule of substantive law.
Though estoppel is considered as a rule of evidence it has two characteristics of evidence to
distinguish it from such a presumption which is a rule of substantive law. An estoppel may be
waived by the party who would otherwise benefit by it; and frequently operates only between the
parties to an action. Estoppel, except as a bar to testimony, has no operation as a cause of action
in itself; nor does it create one. Estoppel merely operates as a bar to the suit; it does not
extinguish the right. Estoppel deals with questions of fact and not question of right. The doctrine
of estoppel often overlaps with the doctrine of res judicata and waiver. However the difference
lies in the fact that while estoppels bars the party to plead or prove particular facts which are
inconsistent with previous contention, res judicata bars the court to deal with the same kind of
issue again and again by barring the subsequent litigation betweenthe same parties. On the other
hand, waiver is contractual, and may constitute a cause of action; it is an agreement to release or
not to assert a right. The doctrine of estoppels is embodied in the Indian law under Sec. 115 ,
Sec.116 and Sec 117 of the Indian Evidence Act, 1872. While section 1115 defines the doctrine
of estoppel, Section 116 deals with the estoppel of tenant; and of licensee of person in possession
and Section 117 deals with the estoppel of acceptor of bill of exchange, Bailee or licensee.

SYNOPSIS:

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INTRODUCTION:

According to the Halsbury laws of England, "Estoppel may be defined as 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."1 In Black’s New
Dictionary, “estoppel” is indicated to mean “that a party is prevented by his own acts from
claiming a right to the detriment of other party who was entitled to rely on such conduct and has
acted accordingly.” Therefore, Estoppel in simple words is a bar which prevents a party from
asserting a fact or putting up claim inconsistent with the position he previously took. It is said to
be a rule which preludes a person from saying one thing at one time and another thing, totally in
consistent with the earlier one, at another stage. There are various kinds of estoppels like
estoppel by res judicata, estoppel by deed, estoppel by conduct, promissory estoppel, proprietory
estoppel etc, each one with fine distinctions with another. The doctrine of estoppels is embodied
in the Indian law under Sec. 115 , Sec.116 and Sec 117 of the Indian Evidence Act, 1872.

RESERCH OBJECTIVE:

To study the common law doctrine of estoppel, it’s meaning and application, it’s types and its
developments in both English law and the Indian law. The research also aims at studying the
doctrine in comparision with the doctrines of waiver and the doctrines of res judicata.

RESEARCH QUESTIONS:

 Whether the doctrine of estoppel is a rule of evidence or an aspect of substantive law.

 Whether the doctrine of estoppel can give rise to any cause of action (sword) or is it only
applicable as a defence (shield).

RESEARCH METHODOLOGY:

1
Halsbury laws of England(4th Ed, Vol. 16, para 1501, page1008)

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The present study is a doctrinal and analytical study based on the critical review of both primary
and secondary sources. Secondary and Electronic resources have been largely used to gather
information and data about the topic. Books and other references have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been referred.

MODE OF CITATION:

 Mode of citation is Bluebook (19th ed.)

LITERATURE REVIEW:

 Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th edition,

Butterworth: 2002

The author has clearly explained the origin and the development of the doctrine of
estoppel in the common law. It was explained to be an equitable doctrine and its
various types and applications were explained with the help of various illustrations.
Further , the general exception to the doctrine of estoppels were also clearly
explained.

 Parkinson, The Principles of Equity, 2nd edition, LBC: 2003

The book focuses on various doctrine of the common law . it has clearly explained
the various scenarios where the doctrines of estoppels, res judicata and waiver are
overlapped. The fine distinctions between all the three doctrines were clearly
explained the their distinctive legal applications are described in a detailed way with
the help of various case laws.

 Ratanlal & Dhirajlal, The law of Evidence, 27th edition, 2019.

The position and embodiment of the doctrine of Estoppel in the Indian scenario has
been dealt with. the doctrine has been dealt In the light of sections 115, 116, and 117

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 of the Indian evidence act. The scope, significance and the application of the legal
provisions have been cearly explained in light of various case laws.

SCOPE OF THE PROJECT:

The project studies various aspects of the doctrine of estoppel. The meaning and definition of the
doctrine, the scope and applicability of the doctrine, the evolution of the doctrine, the
developments in the English and the Indian laws, the essentials and the exceptions, various types
of estoppel and their application etc have been extensively dealt with in light of the relevant case
law. Furthermore, the study of the doctrine with respect to other common law doctrines like res
judicata and waiver has also been dealt with.

SIGNIFICANCE:
The significance of the doctrine of Estoppel is that it is one of the very important concepts of the
common law and is a doctrine of equity . It is one of the Equitable defense tools available to the
parties while seeking justice. The significance of the project lies in the fact that it analyses and
explains the meaning, scope and the applicability of this doctrine in light of the relevant case
law.

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CONTENTS:

1.DOCTRINE OF ESTOPPEL —MEANING AND INTRODUCTION.................................9

2.EVOLUTION OF THE RULE................................................................................................10
3.SCOPE OF DOCTRINE OF ESTOPPEL.............................................................................12
4.NATURE OF ESTOPPEL IN INDIA.....................................................................................13
5.GENERAL CONDITIONS OF ESTOPPEL.........................................................................14
7.WHEN ESTOPPEL IS NOT ATTRACTED.........................................................................15
8.KINDS OF ESTOPPEL...........................................................................................................17
9.DOCTRINE OF ESTOPPEL UNDER THE INDIAN EVIDENCE ACT..........................22
10.ESTOPPEL AND RES JUDICATA.....................................................................................27
11.ESTOPPEL AND WAIVER...................................................................................................27
12.ESTOPPEL AND ADMISSION............................................................................................29
13.ESTOPPEL AGAINST, OR IN FAVOR OF THE STATE...............................................29
14.ESTOPPEL—A SWORD OR A SHIELD...........................................................................30
15.CONCLUSION.......................................................................................................................31
16.REFERENCES…………………………………………………………………………..…..28

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1.DOCTRINE OF ESTOPPEL —MEANING AND INTRODUCTION:

Estoppel is a common law doctrine by virtue of which a court prevents a litigant from taking an
action, the litigant normally would have the right to take, in order to prevent
an inequitable result. Estoppel occurs when a party "reasonably relies on the promise of another
party, and because of the reliance is injured or damaged".  Estoppel precludes "a person from
denying, or asserting anything to the contrary of, that which has, in contemplation of law, been
established as the truth, either by the acts of judicial or legislative officers, or by his own deed,
acts, or representations, either express or implied

Therefore, Estoppel in simple words is a bar which prevents a party from asserting a fact or
putting up claim inconsistent with the position he previously took. It is said to be a rule which
preludes a person from saying one thing at one time and another thing, totally in consistent with
the earlier one, at another stage2.

According to the Halsbury laws of England, "Estoppel may be defined as 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."3

In Black’s New Dictionary, “estoppel” is indicated to mean “that a party is prevented by his
own acts from claiming a right to the detriment of other party who was entitled to rely on such
conduct and has acted accordingly.”
 
According to Oxford Dictionary of Law estoppel is “a rule of evidence or a rule of law that
prevents a person from denying the truth of a statement he has made or from denying facts that
he has alleged to exist, The denial must have been acted upon (probably to his disadvantage) by
the person who wishes to take advantage of the estoppel or his position must have been altered as

2
Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law Agency, Faridabad,2011,
p. 366
3
Halsbury laws of England(4th Ed, Vol. 16, para 1501, page1008)

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a result4. When a 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 the thing. The former person is thus stopped from denying
the truth of his previous statement. He, thus, cannot both approbate and reprobate, because of
invocation of rule of estoppel against him.

In other words, estoppel is a rule, whereby a party is precluded from or to say estopped from
denying the existence of some state of facts which he had previously asserted and on which the
other party has relied or is entitled to rely upon. According to Wade and Forsyth the basic
principle of estoppel is that a person who by some statement or representation or representation
of face causes the other to act to his determent in reliance on the truth of it is not allowed to deny
it later, even though it is wrong. Estoppel, thus, gives way to justice to prevail over the truth5.

2.EVOLUTION OF THE RULE:

The expression 'Estoppel' is derived from the French word 'Estoup' which means, 'shut the
mouth". It states that when a person by declaration (act or omission) makes or induces another to
believe a thing, he cannot deny its truth subsequently, and thereby the other person cannot be
estopped from proceeding upon such declaration. Estoppel is a rule of equity or law and is a rule
of evidence which is based on the maxim ‘Allegans contraria non est audindus’ i.e. person
alleging contrary facts will not be heard 6. The principle provides that a man cannot approbate or
reprobate or that man shall not be allowed to say one thing at a time or different thing at another
time.7

This principle was found from a famous English case Pickard v. Sears8 stating that it is
inequitable and unjust to allow a person to deny the truth of a statement which he has made to

4
Sharma Transport v. Government of Andhra Pradesh, AIR 2002 SC 322.
5
Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New Delhi, 2006, p.2
6
M. Morir, Textbook on the law of Evidence p.370 (2011)
7
Bower, Spencer (2004) “The Law relating to Estoppel by Representation” (4th ed.). para. I.2.2
8
112 ER 179

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another and the other person has acted on it believing it to be true. The objective behind this is to
prevent fraud and secure justice between parties by promotion of justice and good faith.

In the above case, the mortgagee of the machinery permitted it to remain in the possession of the
mortgagor, against whom a judgment was executed. The machinery was seized in execution, but
although the mortgagee spoke to the judgment creditors attorney he foolishly made no reference
to the fact that machinery in which he had an interest had been seized to pay another man’s debt,
nor did he make any claim to the machinery for some time. When he eventually did so, it was
held that he might be estopped from denying that the machinery was the debtor’s, as his conduct
amounted to a willful representation to that effect. Thus where the acquittal order of a Magistrate
on a minor offence was set aside and the accused committed for trial on a major offence, the
principle of issue estoppel will not apply.9 The study of the evolution of the doctrine of estoppel
can be done by comparing its development in English law and Indian law.10

The foundation for this doctrine was first laid down in English Law, in the case of Hughes v.
Metropolitan Railway Co11. 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
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. 

9
Spencer-Bower and Turner, Estoppel by Representation ,P,342,(2003).
10
Bower, Spencer (2004) “The Law relating to Estoppel by Representation “(4th ed.). para. I.2.2
11
UKHL 1 2 AC 439

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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 Ltd12.  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. The Court
has held that the plaintiff is entitled to the payment of full rent since the war has ended but by
virtue of the rule of estoppel he cannot be entitled to the payment of the residues amount of the
full rent, for the period when the war was going on.  

The Doctrine of estoppel in general and promissory estoppel, in particular, was recognized in
India from the case of Sourujmal And Ors. v. The Ganges Manufacturing Co.13, 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.

3.SCOPE OF DOCTRINE OF ESTOPPEL:

Appearing initially as a negative aspect in the field of evidence, the principle has extended its

scope. Ever since the principle of estoppel has been expounded and applied in judicial

proceedings there has been a conflict of views as to whether estoppel is a rule of evidence or a
rule of substantive law.

In the case of R.S. Madanappa and ors. v.. Chandramma and Anr 14, the court denied to accept
the contention that the law of estoppel by representation is not confined to the provisions of
Section 115 of the Evidence Act.

12
1All ER 256; 62 TLR 557
13
(1880) ILR 5 Cal 669
14
AIR 1965 SC 1812

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In the landmark judgement of Ganges Mfg. Co. v. Sourujmal15, It was held that the assumption
that all rules of estoppel are also rules of evidence is erroneous. But still, the Court recognized
the principle of estoppel being a part of the Law of Evidence.

“The Courts here would then be debarred from entertaining any questions in the nature of
estoppel which did not come within the scope of Sections 115 to 117,however important those
questions might be to the due administration of the law.”16

4.NATURE OF ESTOPPEL IN INDIA:

The precise and exact nature of an estoppel has lead different opinions. An estoppel has at least
three aspects.

(1) As a Rule of Evidence

There is high authority for the view that estoppel is only a rule of evidence. Estoppel has some

similarity to an irrefutable presumption of law, and has been so treated for one of its effects is to
prevent the rebuttal of facts alleged by the other party. But an estoppel has two characteristics of
evidence to distinguish it from such a presumption which is a rule of substantive law. An
estoppel may be waived by the party who would otherwise benefit by it; and frequently operates
only between the parties to an action.

(2) As a Matter of Pleading

As per the jurist Stephen fitzjames, estoppels belong rather to the law of pleading than to that of

evidence. Subject to minor exceptions, a party who proposes to rely on an estoppel must raise
this point and state the relevant facts in his pleading. This requirement involves an exception to
the rule that evidence should not be pleaded, but it does not show that estoppel is not a rule of
evidence. Failure to plead an estoppel may amount to a waiver, and thus may result in making
admissible facts which would otherwise be excluded.

15
(1880) ILR 5 Cal 669
16
Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New Delhi, 2006, p.237

13
(3) As Substantive Law
The doctrine of estoppel belongs rather to substantive than to adjective law. Yet it has been
shown that estoppels are not on the same footing as the rules of Substantive law embodied in
irrefutable presumptions, and estoppels will not generally found a cause of action at common
law, for they involve no claim. However, it is said that they may support claims to equitable
relief and they may amount to a defense when they prevent a plaintiff proving some facts,
essential to his case. Accordingly, estoppels have some characteristics of substantive law.

5.GENERAL CONDITIONS OF ESTOPPEL:

1. Estoppels must be reciprocal or mutual:

This statement seems to mean that an estoppel must bind both parties to the litigation.

2. Estoppels cannot circumvent the Law:

Hence the contractual incapacity of a minor cannot be evaded by any estoppel against asserting

his Infancy, even though he has obtained a loan by a false representation that he was an adult.
And a tenant, who fails to raise a defense that his rent is in excess Of the standard rent permitted

by statute, is not estopped from making a subsequent application to determine the lawful rent.17

3. Estoppels must be certain:

The statement that an estoppel must be clear, precise or unambiguous primarily refers to the
representation on which an estoppel by conduct may be founded.18

4. Conflicting Estoppels Cancel each Other:

The classical example is Prof. Coke's statement that " estoppel against estoppel both put the

matter at large”.

17
Spence, Michael (1999). Protecting Reliance: The Emergent Doctrine of Equitable Estoppel. Hart Publishing.
pp. 60–66.
18
Bower, Spencer (2004). The Law relating to Estoppel by Representation (4th ed.). para. I.2.2

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6.ESTOPPEL BY ITSELF DOES NOT CREATE A CAUSE OF ACTION OR TITLE:

Estoppel, except as a bar to testimony, has no operation as a cause of action in itself; nor does it
create one. Estoppel merely operates as a bar to the suit; it does not extinguish the right.
Estoppel deals with questions of fact and not question of right. In other words, there is no general

rule of law that a man is estopped from asserting a right which he has said that he will not

Estoppel by representation is one of those rules of evidence which are personal to the parties, and

does not belong to that class of rules which relate to titles or rights against the world. As between

the parties to the representation, therefore, rule of estoppel may affect or create substantive

rights. It may enable a party as against another party to claim a right of property which in fact he

does not possess,and in this sense it may more correctly be viewed as a substantive rule of law.

7.WHEN ESTOPPEL IS NOT ATTRACTED:

 No Estoppel in Criminal Cases:

Estoppel is a rule of civil actions. It has no application to criminal proceedings, though in such

proceedings matters which in civil actions create an estoppel are usually so cogent that it would
be almost useless to setup a different story.
A petition was filed for quashing the proceedings under sections 498A and 304 of IPC and under
the Dowry Prohibition Act because of an agreement between the parties. The petition was
dismissed as the party to the agreement was not bound by an unlawful compromise and hence
there was no question of estoppel either.

 Estoppel should be pleaded:

The rule of estoppel depends for its application on certain of fact. It should, therefore, be

specifically, pleaded unless there is no opportunity of doing so, e.g., in cases where there are no

pleadings, in which case the party relying on estoppel must raise it by an objection in other form

15
at the earliest possible stage of the proceeding. Where estoppel is not specifically pleaded, a
party will not permitted to rely it at a subsequent stage

 No estoppel against minor: 

Section 3 of The Maturity Act’, 1875 defines a minor to be a person who is under the age of 18
years and Section 11 of the Indian Contract Act, 1872 says that parties entering into a contract
should be competent, i.e. should be a major, of sound mind and barred by no law to enter into a
contract. A contract with a minor is void ab initio which means void from the very beginning. 

So when a minor misrepresenting himself to a major enters into a contract, then he cannot be
made liable for it, not even on the grounds of estoppel. The minor can always plead that at the
time of entering into the contract he was a minor. 

In the case of Ajudhia Prasad And Anr. v. Chandan Lal And Anr 19.  two minors fraudulently
entered into a mortgage deed by concealing the fact that they were minor as a guardian has been
appointed for them under the Wards Act. The court held that no estoppel would arise in this
case. 

 No estoppel on a Point of law:

The Doctrine of estoppel does not apply to statutes but only to the facts. Estoppel, if applied to
the law would go against public policy and general welfare of the society.

In the case of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. 20, pavement
dwellers who migrated to India, because of proximity to their place of work started living on the
pavements in Bombay. Bombay Municipal Corporation (BMC) initially allowed them to stay as
they constituted the major part of the population of Bombay.Later on when the pavement
dwellers were evacuated, Olga Tellis, a journalist raised questions against this action. It was

19
AIR 1937 All 610
20
1986 A.I.R. 180

16
upheld that no estoppel can arise against the Constitution of India or against the fundamental
right, i.e. the right to life and livelihood in this case. 

In Sales Tax Officer v. Kanhaiya Lal21  it was formulated that the doctrine of estoppel would not
arise in cases where the law clearly, without any ambiguity, states that the plaintiff should be
given relief. When any law is absolute and has no exception clauses, than anybody acting against
it would be acting beyond powers which would be void and the party getting affected by it can
file suit claiming estoppel against it.

In National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board 22  relying on the Schedule
mentioned in the Act a new industry was given concession on tax for the next five years from the
days of its commencement. The state Government of Madras under a section of the Act had the
power to bring amendments to the schedules of the Act. Pursuant to this, the State government
brought an amendment to the above-mentioned schedule and made it a subject to certain
conditions. This was done before the completion of 5 years of that industry. The industry in his
suit pleaded estoppel to which the court said that no estoppel would arise against the
government. 

8.KINDS OF ESTOPPEL:

I. Estoppel by Matter of Record or Estoppel by Res Judicata:

Res judicata is an estoppel by judgment. It embraces that final judicial decision of a court of

competent jurisdiction, once pronounced between parties, cannot be raised in any subsequent

litigation between the same parties respecting the same subject-matter.

There is a difference in the principles upon which the doctrines of res judicata and estoppel are

based. Res judicata is found on the principle that there should be an end to litigation, and it
affects not only the original parties but not all others afterwards claiming the same relief. It bars

21
A.I.R. 1969 SC 135
22
A.I.R. 1996 Mad. 229

17
fresh litigation at the outset. However estoppel is a rule of evidence based on the principle that a
man, who by his acts or statements has induced another to believe a thing to be true, should not
afterwards be heard to deny the truth of that thing to the prejudice of the other who acted upon
the belief so induced. Res judicata ousts the jurisdiction of the Court, while estoppel merely
shuts the mouth of a party.Situations where estoppel by record or quasi record arises are as
follows:

1. Where the dispute between the parties on the facts have been decided upon by the
tribunal which was entitled to take decision in the particular case, and when the same
dispute arises again in the matter subsequent to the first one, between the same parties;
2. Where the issue raised between the parties which has been resolved by the judiciary,
incidently comes again into question in the subsequent proceedings between the same
party.
3. Where an issue raised on the facts, affecting the status of the person or thing, has been
willing determined in a manner that in the final decision it be included as a substantive
part of the judgment in rem  of the tribunal that has been setup to decide the particular
case. This should take place when the same issue comes directly in question in
subsequent civil proceedings between any party whatever. 

II. Estoppel by deed:

The rule of estoppel binds the parties to the instrument and those claiming through them by deed.
An estoppel by deed is a preclusion against the competent parties to a valid sealed contract and
their privies, to deny its force and effect by any evidence of inferior solemnity. The tendency in
modern times is, to treat estoppel by deed as resting upon contract and as merely a form of
estoppel by representation. This kind of estoppels doesn’t technically exist in India.

III. Estoppel by Matters in pais:

"Estoppel by matters in Pais" (also, pais) is defined by Blackstone as an "assurance transacted

between two or more private persons in pais, in the country, that, is, upon the very spot to be
transferred".
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Estoppel by conduct means when a person through agreement, misrepresentation or negligence
makes the other person believe in certain things upon which the other person had taken some
action causing a change in their current situation, then the first person cannot deny the veracity
of the statements given by him in the latter stages.23 

In the case of Sardar Chand Singh v. Commissioner; Burdwan Division 24, Chang Singh, the
Managing Director of Messrs., was denied any revolver license as he was accused in a gruesome
murder case and other cases. When the District Magistrate issued an order that he could not hold
any revolver license on the grounds of public order and safety, Chand made no appeal. This
planted a reasonable belief that he has consented to it. Later on when makes an application to the
District Magistrate to reconsider his case, it was denied following the doctrine of ‘Estoppel by
Conduct’.

IV. Estoppel by election:

According to the doctrine of estoppel by election if the person chooses to contend one particular
claim or pray for one particular relief then his is estopped from going for the alternative one also.

In the case of Revision v. Lekshmy Sukesini Devi25, the court clearly stated that: Parties should
not take inconsistent pleas as it makes the conduct far from satisfactory. And also that parties
should not take inconsistent stands and lengthen the proceedings unnecessarily. 

V. Equitable estoppels:

When a person tries to take a legal action that would conflict with his previously given
statements, claims or acts, this legal principle would prohibit him from doing so. So, the plaintiff
would be stopped from bringing a suit against the defendant who acted pursuant to the
commands of the plaintiff. Estoppels that are not provided by statute law may, in this country, be
termed equitable estoppels.26
23
Spence, Michael (1999). Protecting Reliance: The Emergent Doctrine of Equitable Estoppel. Hart Publishing.
pp. 60–66.
24
AIR 1958 Cal 420
25
AIR 2007 KER 345
26
Bower, Spencer (2004). The Law relating to Estoppel by Representation (4th ed.). para. I.2.2

19
 VI. Estoppel by negligence:

This principle allows one party to claim a right over the property of another party who might not
be having the possession of it. This reflects that the person being estopped owes a duty to the
other person whom he had led into wrong belief. 

In the case of Mercantile Bank of India v/s The Central Bank of India Limited 27  a firm of
merchants committed a series of fraud and until it came to the notice of the authorities, enjoyed
high repute in the state of Madras. This firm was known for groundnuts-merchant and exporters.
Both the plaintiff and defendant financed the consignments of ground-nuts purchased and each
received a ‘railway receipt’ in respect of their consignment. The merchants needed a loan so
what they did was, at first pledged the railway receipt from the Central Bank to obtain a loan and
then again fraudulently pledged it to the Mercantile Bank also. The plaintiff, the Central Bank
had filed a suit for conversion of the goods against Mercantile Bank. It was held that there was
no negligence as Central Bank didn’t owe a duty to the Mercantile Bank and so Central Bank
was not estopped from having a prior title as ‘pledgees’.

VII. Proprietary Estoppel:

A legal precedent that will prevent a party from denying the right that another party has in the
first party’s property. The second party will have had costs in relation to the first party’s
property.
Until 1986 the doctrine of proprietary estoppel was used as a way to bar litigants from asserting

their strict proprietary rights. The doctrine had not been used to give effect to promises to leave
property to someone in the future. It has developed into one of equity’s sharpest instruments in
its intervention in the common law and statutory regulation of land and the distribution of assets
on death.
In James v. James28  Allen and Sandra had two daughters and one son. The son worked for the
major part of his life with his father eventually becoming a partner. When making the will, Allen
gave some land to one of his daughters which created a dispute in the family leading to the
27
A.I.R. 1938 Privy Council, 52
28
2018 EWHC 43 Ch

20
dissolution of the partnership. Later Allen distributed his property amongst the three ladies of his
house, cutting down the name of his son. Son brought a case of proprietary estoppel against the
women and also challenged the validity of Allen’s will. It was held that nothing has been shown
or said with clarity that Aleen would transfer his entire will to him. 

VIII. Promissory Estoppel:

The legal enforcement of a promise made by words or conduct to the promisee without the
consideration of the detriment it may cause. The doctrine of promissory estoppel does not fall
within the scope of section 115, as the section talks about representations made as to existing
facts whereas promissory estoppel deals with future promises.
The concept of promissory estoppel differs from the concept of estoppel as continued in Section
115 in that representation in the latter is to an existing fact, while the former relates to a
representation of future intention. But it has been accepted by the Supreme Court as “advancing
the cause of justice. Though such promise (future) is not supported in point of law by any
‘consideration’( the basis of contract), but only by the party’s conduct; however, if promise is
made in circumstances involving legal rights and obligations it is only proper that the parties
should be enforced to do what they promised

The case of Motilal Padampat Sugar Mills v. State of U.P29. is a trendsetter regarding the
application of the doctrine of promissory estoppel against the Government. In this case the Chief
Secretary of the Government gave a categorical assurance that total exemption from sales tax
would be given for three years to all new industrial units in order them to establish themselves
firmly. Acting on this assurance the appellant sugar mills set up a hydrogenation plant by raising
a huge loan. Subsequently, the Government changed its policy and announced that sales tax
exemption will be given at varying rates over three years. The appellant contended that they set
up the plant and raised huge loans only due to the assurance given by the Government. The
Supreme Court held that the Government was bound by its promise and was liable to exempt the
appellants from sales tax for a period of three years commencing from the date of production.

IX. Estoppel by Convention:

29
AIR 1979 SC 621

21
In the case of the Republic of India v. India Steam Ship Company Limited,  it was observed
that estoppel by convention arises when parties to a transaction assume the facts or the law. This
assumption might be made by both the parties or either of the parties. Under this principle,
parties to an agreement could not deny to the assumed facts, because if the party or parties are
allowed to go back on their assumptions, it would be unfair and lead to injustice.30 

In a meeting between the landlord and the lesses, it was decided that the landlord would send
demands at the end of the year and the receipt would be given to any one of the lessees.
However, certification was not made a requirement for the recovery of the service charged under
the agreement. The doctrine of estoppel by convention would apply whereby the landlord could
recover the service charges which could not be challenged by the lessee as there was no
certification. This was decided in the case of Clacy & Nunn v. Sanchez & Others.31 

X. Estoppel by Acquiescence:

When one party, through a legitimate notice, informs the other party about the facts of a claim,
and the other party fails to acknowledge it, that is, neither he/she challenges it nor does refute it
within a reasonable period of time. The other party now would be estopped from challenging it
or making any counterclaim in the future. The other party is said to have accepted the claim
though reluctantly, that is, he/she has acquiesced it.

9.DOCTRINE OF ESTOPPEL UNDER THE INDIAN EVIDENCE ACT:

The principle of estoppel which is embodied in Section 115 of the Indian Evidence Act, 1872
is a rule of evidence. The Section reads as under:

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 on such belief, neither he nor his

30
Spence, Michael (1999). Protecting Reliance: The Emergent Doctrine of Equitable Estoppel. Hart Publishing.
pp. 60–66.
31
[2015] UK UT 0387 (LC)

22
representatives shall be allowed in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.32

To invoke the principle of estoppel enshrined in the Section, the following three conditions are
necessarily be satisfied:
(I).there must be a declaration, act or omission on the part of a person;
(ii).by the said declaration, etc., that person must have intentionally caused or permitted another
person to believe a thing to be true; and
(iii).he must have intentionally caused or permitted the said another person, to act upon such
belief.33
Section 115 explains that a party is precluded from denying the existence of some state of facts
which he had previously asserted and on which the other party has relied or is entitled to rely on.
That is, a man should keep his words, all the more so when the promise is made with the
intention that the other party should act upon it.

The court in Pickard v. Sears34  said that estoppel is where:

 One party by his words or actions makes a representation

 The other party believing in his words acts on that
 Or alters his position

The main requirement of estoppel is to bring the person into action based on the representations
made to him. It is not important that the person making the representation has the knowledge or
motive behind the representation being made. It is also not necessary that the representation
being made is fraudulent in nature or that it has been made under a mistake or misapprehension.
In order to apply this doctrine, it has to be ensured that the representation made should be based
upon the existing facts and must not be a representation relating to a future promise. 

In Delhi University v. Ashok Kumar35, the respondent, a student after passing the Secondary
School Certificate Examination of the Gujarat Board was admitted provisionally in the B.A. I
32
The Indian Evidence Act, 1872
33
T. Cottier, H. P. Müller, "Estoppel" in Max Planck encyclopedia of Public International Law, april 2007
34
(1837) 6 Ad &EL 469.
35
AIR 1968 Del. 131

23
year course in the Delhi University. After over a year, the University informed him that he was
ineligible to join the course because the Gujarat Board Examination had been recognized by the
appellate University as equivalent to Matric Examination while the qualification to join B.A. I
year Course was passing the Higher Secondary Examination. However, the Statute had
authorized the Academic Council of the University to grant exemption from the admission
requirements. The High Court of accepted the plea of the estoppel raised by the student against
the University. The Court stated that estoppel as within the meaning of Section 115 of the
Evidence Act, 1872, might arise from the silence as well as words, the Court held “inaction of
the University for over a year amounted to a representation by it that it had approved his
admission” and. therefore the University would now be estopped.

 In Shri Krishna v. Kurukshetra University36, the Apex Court had ruled that the University could
not cancel the candidature of the appellant-student for the not complying with the attendance
requirement, as the respondents failed to tale the adequate care to scrutinize his examination
from at the relevant time to ascertain whether the candidate fulfilled the necessary conditions.

The law for estoppel or the rule of exclusion of certain evidence under certain circumstances,

like between tenant and landlord, licensee of person in possession and licensor (s. 116), or as
between acceptor and drawer of a bill of exchange, as between Bailee and bailor and licensor and
license (s. 117). Estoppel is a procedure of proof.

Section 116 reads - Estoppel of tenant; and of licensee of person in possession37:

No tenant of immovable property or person claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the
beginning of the tenancy, a title to such immovable property; and no person who came upon any
immovable property by the license 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 license was given.
The doctrine is generally recognized that a tenant is estopped, while the tenancy continues, to
deny the title of his landlord.

36
AIR 1976 SC 376
37
The Indian Evidence Act, 1872

24
Scope of section 116: It is concerned with those estoppels which occurs between:

 Tenant and his landlord

 Licensor and licensee

In the following situations, the landlord can plead estoppel:

 When the tenancy itself stands disputed then the tenant can challenge the landlord’s
title on the property. The tenant would not be estopped from doing so.
 In cases where the tenancy has been moved by fraud, coercion, misrepresentation or
mistake.

The tenant cannot deny the title to the landlord at the beginning of the tenancy. However, tenants
can exercise certain powers like:

 He would not be estopped from claiming that on the death of the landlord the property
would be transferred or the title would be delegated to the tenant and not to some third
party. 
 He can prove that till the day before signing the lease, the landlord had no title over it.
 The tenant can prove that during the tenancy period the landlord lost his title over the
property either through his acts or because he was barred by the law.

In E. Parashuram v. V. Doraiswamy 38 , the Bangalore Mahanagar Palike owned land which was
leased to Mr. Dhanpal for the period of next 10 years. It was found that Mr. Dhanpal had decreed
the land to Mr. Doraiswamy. A decree was passed in the name of Mr. Dhanpal whereby the
vendors were directed to execute the reconveyance of deed in Dhanpal’s favour. Thereafter,
pursuant to the orders, all the documents were to be kept in Dhanpal’s possession. Sooner it was
found that the vendors were trying to claim ownership over the property. This was brought to the
notice of the assignee, Mr. Doraiswamy, who filed a suit of eviction in court.In the second
instance regarding the purchasing of land by Mr. Doraiswamy, it was found that at the initial
stage, the signature of Mr. Doraiswamy was also taken along with Mr. Dhanpal and when this

38
(2006) 1 SCC 65

25
mistake was rectified by the corporation by deleting the signature of Mr. Doraiswamy, he
challenged it. The court in the first instance upheld that the landlord could not be denied the title
to the land even though certain disputes still remain unresolved with the corporation. In the
second instance, the court said that no jural relationship existed and thus exceptions under
Section 116 of the Indian Evidence Act cannot be pleaded. 

Estoppel in mortgagor- mortgagee relationship:

When upon the contract of mortgage, a property has been mortgaged by one person to another
and the person to whom it has been mortgaged, i.e. the mortgagee, has taken possession, then the
parties to the contract cannot deny the right of each other under the contract as proposed
in Arjun Singh v. Mahasaband39 .

In a situation where the mortgage is about the end and payment has to be made by the
mortgagee, in that period if the mortgagee claims that the mortgagor seems to have no interest in
the property, he would be estopped from doing so. The rule under mortgagor-mortgagee
relationship gives rise to the doctrine of estoppel only when the claims under the suit filed is
based on the contract of mortgage and in cases of repudiation of the mortgage. 

Section 117 - Estoppel of acceptor of bill of exchange, Bailee or licensee40:

The section states that the acceptor of the bills of exchange cannot deny the person who is
supposed to draw the bills, from drawing it or endorsing it. Also no bailee or licensee can deny
the fact that at the time when the bailment and license began, the bailor and the licensor had the
authority to make bailment or to give license. 

1. The person accepting the bills of exchange can deny that the bills of exchange were
really drawn by the very person who showed to have drawn it. 
2. If the bailor mistakenly delivers the goods to some third party instead of the bailee, he
can prove that a third party has the right over the goods bailed against the bailor.

39
A.I.R. 1932 All 437
40
The Indian Evidence Act, 1872

26
As per the stand taken by Supreme Court in the case of Mohan v. State41, the rule of issue
estoppel does not prohibit that evidence given at one trial against the accused cannot be given in
another trial for another offence.

10.ESTOPPEL AND RES JUDICATA:

Sometimes, the doctrine of "res judicata" is considered as a branch of law of estoppel. There is
distinction between doctrine of "res judicata" principle of 'issue estoppel' and 'rule estoppel'
under section 115 Of the Evidence Act. Doctrine of res judicata creates legal embargo on hands
of the court to a judicial determination of deciding the same question over again even though
earlier determination may be demonstratedly erroneous. When the proceedings between the same
parties have attained finality, they are bound by the judgment and cannot be permitted to re-
agitate the same lis.42 The determination of the issue in the same set of facts in the previous lis
between the parties would give rise to an issue of estoppel. It operates in any subsequent
proceedings between the same parties.43
The doctrine of res judicata is based on rule of procedure. However, doctrine of mere estoppel
under section 115 Of the Evidence Act, there is embargo on the party to plead or prove a
particular facts whereas in case of res judicata, the prohibition is operative against the court to
deal with the same kind of issue again and again.

11.ESTOPPEL AND WAIVER:

Estoppel is a legal mechanism which prevents a party from departing from a promise or
representation they have made to another party where to do so would be unfair, unjust
or unconscionable. Estoppel in most cases is a defence, as opposed to a basis of a claim, and is
used as a shield not a sword. Closely connected to the concept of estoppels is waiver. Waiver
means the unilateral abandonment of a right or claim. It may apply where a party to a contract
represents, by its conduct or inaction that it will not enforce a right under the contract and the

41
AIR 1968 SC 1281.
42
Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th edition, Butterworth: 2002, Chapter 17; and
Parkinson, The Principles of Equity, 2nd edition, LBC: 2003, Chapter 7
43
T. Cottier, H. P. Müller, "Estoppel" in Max Planck encyclopedia of Public International Law, april 2007

27
other party alters its position. Therefore, by express statement, one party may waive a term of the
contract and can no longer effectively assert that right and demand its performance. For a waiver
to occur there needs to be unequivocal words or conduct, including a deliberate failure to assert a
right up to the latest possible time. The concept of ‘waiver’ has been recognised by both the
common law and equity as a means by which certain rights can be suspended, but then revived
by appropriate notice.44

Therefore waiver is the deliberate or voluntary relinquishment or abandonment of a known right

or privilege whereas the doctrine of estoppel prevents a person from denying his previous
statement made in a court of law as it could cause injury or loss to the other party

The difference between estoppel and waiver was explained by the Supreme Court in the case
of Provash Chandra Dalui and Ors. v. Biswanath Banerjee and Ors 45. . The court held that the
most important element in case of waiver is that there must be intentional relinquishment of a
known right and should be willing done by the party. Where waiver asks for an involvement of
intention by the party to surrender a right, in the doctrine of estoppel the element of intention is
irrelevant. And what becomes important in estoppel is that the party must suffer loss as a result
of the false representation made to him. In case of estoppel it is not required that the part give up
on the right, the doctrine of estoppel would anyway arise. 

Estoppel and waiver are entirely different. Estoppel is not a cause of action. It may, if
established, assist a plaintiff in enforcing a cause of action, by preventing the defendant from
denying the existence of some fact essential to establish the cause of action. However, It is a rule
of evidence which can be primarily used a defence. On the other hand, waiver is contractual, and
may constitute a cause of action; it is an agreement to release or not to assert a right. Thus, if an
agent with an authority to make such an agreement on behalf of the principal agrees to waive his
principal’s right, then (subject to any other question such as consideration), the principal will be
bound by the contract, not by estoppel.

44
Wilken, Sean; Villiers, Theresa (2002). The Law of Waiver, Variation and Estoppel (2nd ed.). Oxford University
Press
45
AIR 1989 SC 1834

28
12.ESTOPPEL AND ADMISSION:

Though in both admissions and estoppels there are statements, an admission does not ripen into

an estoppel unless the person to whom the representation is made believes it and acts upon such

belief, whereas in the case of mere admission evidence can be given to show that the admission
was wrongly made.46
Admission made in earlier suit as to the nature of property if proved valid in subsequent

proceedings are binding as estoppel.

13.ESTOPPEL AGAINST, OR IN FAVOR OF THE STATE:

The state like its subjects is entitled to the plea of estoppels. Further, the doctrine of promissory
estoppel was applied by the Supreme Court to give relief to the employees to whom the State
Government had held out certain promises as inducement to move into a newly created
department. It was held that the employees having acted upon the -representations- could not be
denied the rights and benefits promised to them by the State Government. However, Promissory
estoppel cannot be invoked to compel the Government or even a private party to do an act
prohibited by law.

Categories under which the doctrine of estoppel cannot be applied against the state:

 By entering into bilateral agreement parties can contract himself out of the statutory
provisions,
 There must exist some provision in the statute which prevents the parties from
entering into such types agreements which the parties would have entered into,
 The provision should be such that it satisfies the interest of the public at large,
 The provisions should not be such that only a particular category of people can avail
its benefits, and,

46
Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th edition, Butterworth: 2002, Chapter 17; and
Parkinson, The Principles of Equity, 2nd edition, LBC: 2003, Chapter 7

29
  Merging of the agreement between the parties into a court’s order where the parties
have been discouraged from performing its obligation imposed on them by law,
because of certain actions by the parties.

14. ESTOPPEL—A SWORD OR A SHIELD:

The law of estoppels is both a sword and a shield; in other words it is both a defence and a cause
of action. Initially the application of the doctrine of estoppel only allowed a litigant to “use it as
a shield and not as a sword” . The application of this doctrine was originally restricted to only
taking a defence by a party but not to be used as a cause of action against another
.
In Combe v Combe47 , CA a husband promised to make maintenance payments to his separated
wife but failed to do so. The wife brought an action to enforce the promise invoking promissory
estoppel.48 The court held that promissory estoppel does not create a cause of action and as such
the requirement of consideration in formation of contract is still relevant. Promissory estoppel is
a rule of evidence that prevents the promisor from denying the truth of statement which the
promisee had relied. Denning LJ said:

"The principle does not create new causes of action where none existed before. It only prevents
a party from insisting on his strict legal rights when it would be unjust to allow him to enforce
them".

However, this rule has changed in latter decisions like Evenden v Guildford City49 where the
courts held that "promissory estoppel can be a cause of action." However it was stated that, for it
to be a cause of action there had to be a clear and unequivocal undertaking. This was overruled
by Secretary of State for Employment v Globe Elastic Thread Co Ltd 50 . Wherein it was held
that the promise or representation must be “precise” and “unambiguous” although it does not
mean that such promise or representation must be expressly made.
47
[1951] 2 KB 215
48
Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th edition, Butterworth: 2002, Chapter 17; and
Parkinson, The Principles of Equity, 2nd edition, LBC: 2003, Chapter 7
49
AFC [1975] QB 917,
50
[1980] AC 506

30
Therefore though originally the rule of estoppels was considered to be used as a shield only, by
the virtue of latter judgments it was held to be a valid cause of action and hence a sword also.

15.CONCLUSION:

The law of estoppels is a wide common law principle and no codification can do complete justice
in defining all its parameters. 'Estoppels' in their true sense, are matter of infinite variety, and are
by no means confined to subjects which are dealt with in Chapter VIII of The Indian Evidence
Act. A man may be estoppled not only from giving particular evidence, but from doing acts, or
relying upon any particular arguments or contentions which the rules of equity and good
conscience prevent him from using as against his opponent. Estoppel was once regarded as a rule
or branch of the law of evidence, but the better opinion, and that which now prevails, is that it is
more properly a branch of the substantive law.

16.REFERENCES:

SECONDARY SOURCES:

31
 Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University
Press, New Delhi, 2006
 M. Morir, (2011) Textbook on the law of Evidence (2nd ed.)
 Bower, Spencer (2004) “The Law relating to Estoppel by Representation” (4th ed.).
 Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th edition,
Butterworth: 2002,
 Parkinson, The Principles of Equity, 2nd edition, LBC: 2003
 Ratanlal & Dhirajlal, The law of Evidence, 27th edition, 2019.

32