LAW OF EVIDENCE

Assignment on

‘DOCTRINE OF
ESTOPPEL’

Submitted to- Submitted by-

Pro. Dr. Bilal Khan Ahmad Zeeshan
Roll no.27 (C)
B.A.LL.B (Hons.) Regular
8th Semester, 2017-22

Gillani Law College, BZU

 TABLE OF CONTENT
• Meaning
• Applicability of Doctrine of Estoppel
• Nature of Estoppel
• Kind of Estoppel
1. Estoppel of record or quasi-record
▪ Estoppel by record
▪ Lack of jurisdiction.
▪ The judgment obtained by fraud
2. Estoppel by deed
▪ Effects of recitals
▪ Fraud, force or forgery
3. Estoppel by matter in pais
▪ Conduct amounting to negligence.
4. Estoppel by election.
• Distinction between estoppel and Res Judicata
• Distinction between Estoppel and waiver
• Conclusion
• Referrence
 ESTOPPE
L MEANING/NATURE AND CLASSIFICATION
Meaning- “There is said to be an estoppel where a party is not allowed to say that a certain
statement of facts is untrue, whether in reality it is true or not. Estoppel, or "conclusion" as it is
frequently called by the elder authorities, may therefore be defined as a disability whereby a party
is precluded from alleging or proving legal proceeding that a fact is otherwise than it has been
made to appear by the matter giving rise to that disability”.
Examples
(1) 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. He (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.
It was held that the trustee was estopped from saying that he was not the owner of the
property though it might be true.
Applicability of Doctrine of Estoppel-
The doctrine of estoppel applies in cases affecting rights. Estoppel can be described as rule of
creating or defeating rights.
Though estoppel is described as merely rule of evidence it may have the effect of creating
substantive rights as against person estopped. Estoppel which enable a party against another party
to claim right of property which in fact he did not possess is described as estoppel by negligence
or by conductor by representation or by holding out ostensible authority. Estoppel may itself be
foundation of right as against the person estopped.1
Nature of estoppel-
Estoppel is often described as a rule of evidence but the whole concept is more correctly viewed
as a substantive rule of law.

1
B.L.Shreedhar v. K.M. Mhmarireddy, AIR 2003 SC 578.
Kind of estoppel.
Estoppel properly so called is of four kinds, namely
(1) Estoppel by matter of record or quasi record,
(2) Estoppel by deed,
(3) Estoppel in pais i.e. estoppel by conduct, and
(4) Estoppel by election.
(1) Estoppel of record or quasi-record

(1) 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 same issue comes
directly in question in subsequent proceedings between the same parties;

(2) Where the first determination was by a court having exclusive jurisdiction, and the same issue
comes incidentally a question in subsequent proceeding between the same parties;

(3) in some cases where an issue of fact affecting the status of a person or thing has been
necessarily determined in 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 proceeding between any party whatever.
Where the earlier decision is that of a court of record, the resulting estoppel is said to be “of
record”; where it is of any other tribunal, whether constituted by agreement of parties or otherwise,
the estoppel is said to be of quasi-record.
Estoppel by Record-
Estoppel by record is created by a final judgment. A party relying on estoppel by record should
be able to show that the matter has been determined by judgment in its nature final. The word
‘final’ here is used as opposed to ‘interlocutory’. A judgment which purports finally to determine
rights is nonetheless effective for the purposes of creating an estoppel because it is liable to be
reversed in appeal.
Estoppel by record in the name of res judicata has been dealt with in Civil Procedure Code.
Sections 40 to 43 of the Evidence Act provide for the admissibilities of previous judgments. As
stated above there are two types of judgments:
(1) judgments in rem, A judgment in rem may be defined as a judgment of a court of a competent
jurisdiction determining the status of a person or a thing; the judgment of a court of probate
establishing a will or creating the status of an administration, or divorce court dissolving or
establishing a marriage are examples of judgments in rem. A judgment in rem is binding on all
the persons whether they are party to proceeding or not.
(2) judgments in personam.
The judgment obtained by fraud- A judgment obtained by fraud or collusion, may be treated as
nullity and it will not work as an estoppel.
(2) Estoppel by 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 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 deed is based on the principle that when a person has entered into a solemn
engagement by deed under his hand, he shall not be permitted to deny any matter which he has so
asserted. It is 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.
Effect of recitals- A person is bound by the recitals in a deed to which he is a party. Whether they
refer to specific facts and are certain, precise and unambiguous he is not bound by inferences which
may be drawn from the statements on deed. But if the party does not rely on the estoppel by recital
and enters into an issue he cannot rely on the doctrine of the estoppel.2
Fraud, force or forgery- In so far as a deed is void on the ground that it was obtained by fraud,
force or other foul practice, or a forgery, no estoppel can arise.
(3) Estoppel by matter in pais- 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.
Conduct amounting to negligence- The conduct amounting to representation may be negligence.
Negligence can only give rise to an estoppel When there is a duty, upon the person tried to be
estopped, towards the person complaining to use due care.
A branch of estoppel frequently in vogue in modern time and presenting itself in infinite variety is
that form of estoppel in pais which is generally known as estoppel by representation. Estoppel in
pais is now known as estoppel by c0nduct or representation. An estoppel in pais is that which
though not existing as a matter of record, or under the solemnity of a deed may nevertheless under
the circumstances conclude equally with the higher species of averment. It may exist in writing
not being under seal. The estoppel as it is commonly called, is a rule of evidence. A compromise
may work as an estoppel. The doctrine of estoppel in pais is now widely applied to an infinite

2
Rajendra Ram v. Devendra Das, AIR 1970SC 268.
varieties of cases. It embraces all the acts or statements of a party upon the faith of which another
party had been led to act and to change his position and which it would be unfair to permit the first
party to deny.
(4) Estoppel by election- Where the terms and conditions incorporated in the lease-deed revealed
that the allotment was made on "as is-where is" basis which was accepted by the respondent-
company without any protest, whatsoever and the lease-deed further enabled the appellant to
collect charges in case it decided to provide the approach road otherwise, it would be the obligation
of the respondent company to develop its own infrastructure and the same would include
development of the access road, the appellant was not under any obligation to provide the access
road. The Supreme Court held A party cannot be permitted to "blow hot-blow cold", "fast and
loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or
conveyance, or order upon himself. The doctrine of estoppel by election is one among the species
of estopels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be
precluded by way of his actions, or conduct or silence when it is duly to speak, from asserting a
right which-he would have otherwise had.3

3
The Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development
Corporation Ltd., AIR 2013 SC 1241.
4
AIR 2012 SC 3325.
5
Ibid., at p. 3335
DISTINCTION BETWEEN ESTOPPEL AND RES JUDICATA
ESTOPPEL RES JUDICATA
1. Estoppel prevents a person from saying 1. Res judicata prevents the jurisdiction
one thing at one time and retreating of the court on the subject matter
from it at another time. already decided by the competent court
on same issue, between same parties.
2. Estoppel is rule of equity. 2. Res judicata is rule of legal
procedures.
3. Estoppels is based on rule of equity, 3. Res Judicata is based on public policy.
justice and good consciences.
4. Estoppel originates from 4. Res Judicata originates from decision
representation or conduct of the party. of court.
5. Estoppel prevents a person to rebut 5. Res Judicata prevents the court to hear
what has been represented by him. a case which has already been decided
by court of competent jurisdiction.
6. Estoppel shuts the mouth of parties. 6. Res judicata shuts jurisdiction of
court.
7. Rules of estoppel are laid down under 7. The rule regarding res judicata is laid
sections 115 to 117 of Evidence Act, down under section 11 of C.P.C. 1908.
1872.
8. Estoppel can be inferred from the 8. Res judicata is claimed on the basis of
conduct of the parties. previous decision of competent court.

Distinction between estoppel and waiver.

Estoppel waiver
1. Estoppel is a rule of evidence and does 1. Waiver originates from contractual
not form basis for institution a suit. relationship and may give birth to
cause of action.
2. The knowledge of reality or truth is not 2. In case of waiver, real facts or truth is
a factor or essential condition for known to both the parties.
claiming estoppel.
3. In some circumstances, the 3. In case of waiver, some act or conduct
acquiescence amounts to estoppel. is necessary together with aquiscence.
4. Estoppel is used as defence and not 4. Waiver may be cause to give rise a
cause for bringing a suit. right.
There are four salient conditions before rule of estoppel can be invoked-
(1) One party should make a factual representation to the other party;
(2) The other party should accept and rely upon the aforesaid factual representation;
(3) On the aforesaid factual representation, the second party should alter his position;
(4) Altering of position should be such that it would be inequitable to require him to revert back
to original position.

CONCLUSION

The Doctrine of estoppel is an important principle which protects people against fraud or
misrepresentation. There are several instances where an innocent person becomes a prey to false
representations made to them by some party. Sometimes the case may be such that the plaintiff
suffered huge losses. This doctrine avoids such situations and charges the person for his wrongful
conduct.

This legal principle gives an incentive to every one of those people who tries to make false
representations to other and induces them to act upon it by planting their faith in them, and incur
losses as a result of such false representations, by not performing such acts, else they would be
held,liable
Referrence

• SCC ONLINE

• LEGAL SERVICE INDIA

• LAWYERS CLUB

• THELEGALHIGHNESS

• SHODHGANGA

Book referred.

• ND
BATUK LAL, THE LAW OF EVIDENCE, CENTRAL LAW AGENCY, ALLAHBAD, 22 EDITION, 2018.