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Understanding Evidence and Estoppel: Protecting Truth in the Courtroom

The term "Evidence' is originated from the Latin word 'evidera' which means to discover clearly, to ascertain or to prove. Evidence is defined as in Dr Johnson's dictionary, "the state of being evident that is plain, apparent or notorious"[1]. The Law of Evidence is a species of the procedural law. Procedural law prescribe the mode by which the application of the substantive law is regulated. The Evidence Act is concerned with the mode of proving whether a particular person committed the offence or not. Therefore, there are two cardinal principles of the law of evidence.

Evidence play a very vital role in the court of law in order to prove a fact or disprove it. in order to state their side of the story, the party to the suit provide evidence supporting the same. it is the duty of the court to review such evidences and find out the truth on basis of them. However, if there is no restriction on the parties on the number and type of evidences to be given, the parties may indefinitely go and bring the facts, the support and, apart from utilizing more than required time of the court, the task of the court may become difficult to reach a inference. Thus the law of evidence restricts the parties to those facts which can be brought before the court in support of the disputed facts.

The Doctrine of Estoppel applies in cases affecting rights. The Doctrine of Estoppel can be expressed as rule of creating or defeating rights.
Kind of Estoppel:
  • Estoppel by matter of record or quasi-record
  • Estoppel by deed
  • Estoppel in Pais
  • Estoppel by election

Estoppel by Matter of Record or Quasi - Record
Estoppel by Record is created by a final judgement. A party relying on a Estoppel by record should be able to show that the matter has been determined by judgement in its nature final. Where earlier decision is that of a court of record, the result is said to be "of record"; where it is of any other tribunal, the estoppel is said to be "of quasi-record."

Estoppel by Deed
When in a deed made between party, and verified by their seals, there is a statement of fact, an estoppel results, and is called as stopple 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 seems that an estoppel only arises upon a deed, all the mode of its execution being equally solemn with that of deed made 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 nature as to admit of no contradictory proof.

Estoppel by Pais
Estoppel by pais is also known as estoppel by conduct. Where one has either by words or conduct made to another, a representation of fact, either with knowledge of it, falsehood, or with the intention that it should be acted upon, or has to conducted himself that another word, 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, and stoop arises against the party who made the representation, and he is not allowed to cover that the fact is something else than he represented it to be.

Conduct amounting to negligence
The conduct amounting to representation may be negligence. Negligence can only erupt an estoppel, when there is a duty, upon the person tried to be estopped, towards the person complaining to use due care.

Estoppel by Election
The estoppel by election can arise in the following two conditions:
  1. When there are two inconsistent rights the choice of one of which necessarily precludes the choice of another, that when the party entitled or bound to make an election chooses one of the rights or benefits he necessarily gives up the other;
  2. When a party entitled to a benefit and subject to a detriment under one and the same order of a court or authority, takes the benefit of the order, he is precluded from refusing to take detriment as well.
Thus, the estoppel by election may result in contract or act of parties or it may arise in respect of statutory rights.

Estoppel Under The Indian Evidence Act, 1872

Section 115 to 117 envisages the provisions relating to estoppel under the Indian Evidence Act, 1872. The rule of evidence envisaged in section 115 comes under estoppel by pais or as it is also called estoppel by conduct

Section 115 of the Act states 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."[1]

Section 115 lays down that when one person by making false representation (either in words or by conduct) has intentionally caused person to believe to a thing to be true and to made him act upon or take action relying to such belief, neither he nor his representatives in a following proceeding will be permitted to say that the representation was false. The facts of the illustration of this section have been taken from Pickard V. Sears[2], in which the Court for the first time unequivocally stated the principle of estoppel by conduct in these words:

"Where one 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 that, behalf, or to alter his previous position, the former is precluded from averring against the latter a different state of things as existing at that time "

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 belong to the trust took the mortgage. He, the mortgagee, obtained a degree and the properties were sold and the trustee subsequently filed a suit to recover the property from the auction purchaser on the ground at the properties were the properties and he had no power to mortgage them. It was held of the trustee was estopped from saying that he was not the owner of the property though it might be true.

In the case of Pratima Chowdhuery v. Kalpana Mukherjee[3] the Court laid down four salient conditions which were necessary before the rule of estoppel can be invoked. They were:
  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.

Essential Ingredients of Estoppel are:

Some type of Representation:
The representation to form the basis of an estoppel may be made either by:

  • Statement or by
  • Conduct and conduct includes negligence
Certain general propositions are however applicable and accepted though in whatever manner the representation may be made. Such representation must be made with an intention to deceive the other and must be made out of the existing facts.

Representation made with the intention to be Acted Upon

It is not necessary that the representation should be false to the knowledge of the party, making it provided that:
  1. It is intended to be acted upon ( taken action on) in the manner in which it was acted upon, or,
  2. The person who makes it so conduct himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it in that manner.
It has been held that the doctrine of estoppel by representation ought not to be, in most cases applied unless the representation is such as to amount to the contract or the license of the party making it.

Representation must have been Acted Upon
To invoke the advantage of estoppel it has to be proved that a particular action has been acted upon on the basis of the representation. The representation must have been acted upon taking it to be true by the party to whom it was made. Estoppel can only rise only if a party to a proceeding has altered his position on the faith of a representation or promise made by another. A representation made to one person cannot be taken advantage of by another person to whom it was not made. It is not sufficient that the party complaining acted in a manner consistent with the truth of the representation if it appears that he was not influenced by it.

Who can take advantage of Representation:
A representation made under estoppel does not provide an advantage to any other person to whom it was not made. Estoppel must bind both the parties and that a stranger can neither take the benefit nor be bound by them. Only the person to whom the representation was made for whom it was intended can make a use of it. However, if a representation was intended to be general, anybody can act upon it. The principle of estoppel must be confined to the relief contained in respect of the same transaction, and to the person who are parties there to.

Section 116
Section 116 of the Indian Evidence Act states that,
"No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession there of shall be permitted to deny that such person had a title to such possession at the time when such licence was given."[1]

Section 116 of the Evidence Act deals with estoppel between two types of relations, those are:
  1. Between a tenant and his landlord, and
  2. Licensee and licensor
Between The Tenant And His Landlord
As regards the relationship between the tenant and the landlord the rule of estoppel states that, a tenant cannot dispute the right of his landlord by saying that he had nothing in the property. The ground of this doctrine is that inasmuch as the parties have approved that they should stand in the relation of landlord and tenant, and the one accordingly receives possession from the other and enters the premises, so long as he continues in possession, he cannot be heard to deny the state of facts which he had agreed shall be taken as the basis of the arrangement. In other words, he cannot set up that the landlord had no legal title. A tenant cannot deny the right of the person from whom he took this tenancy. A tenant put into possession of land by one person cannot alter the character of his possession and make it adverse to the landlord by going to another person and paying rent to him.

Sri S.K. Sharma V. Mahesh Kumar Verma.[2]:
The present case the respondent was a railway servant. He was allotted premises in question as official residence while he was holding the post of Chief relation Officer. The Apex Court held - the provision of section 138 of railway act, can be invoked for evicting respondent upon his retirement, even though railway administration has no proof that property was belonging to it since the respondent was estopped from disputing title of railway administration over premises in question in view of Section 116 of Evidence Act.

Where the tenancy in itself is in question, the tenants are not estopped from disputing the landlord's title. Again, where the tenancy has been a consequence of fraud, coercion, misrepresentation or mistake, the tenant cannot be estopped from denying the title of the landlord. But, in absence of any such circumstances, as would avoid a contract, the execution of a lease or a verbal agreement to hold as a tenant, would constitute a valid tenancy and bring in the estoppel.

Between Licensee And Licensor:
There is no distinction between the laws of estoppel that applies to the licensee from that which applies to a tenant. A licensee who has obtained possession through the license, before he can show that his licensor had no title when he granted the licence, he must first surrender possession of the premises. When the occupation of the defendant is proved to be permissive, he is estopped from denying the title of the plaintiff. Thus, this section clearly states that licensee ought not to deny the title of the licensor.

A asked B's leave to take some vegetables from B's garden. Having received the key fraudulently took possession of the garden and then refused to vacate. In a suit for ejectment by B, A cannot be allowed to say that B had no title to the said garden when he granted the permission.

Section 117:
Section 117 of the Indian Evidence Act states that:
"No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence."[3]

Section 117 of the Act lays down the provisions for estoppel of acceptor of bill of exchange, Bailey or licensee:
This section deals with further instances of estoppel by agreement. Under this section, an acceptor of a bill of exchange cannot deny that the drawer had authority to draw such a bill to endorse it, but he may deny that the bill was really drawn by the person by whom it purports to have been drawn. A bailed or licensee cannot deny at his bailor or licensor had, at the commencement of the bailment a license authority to make the bailment or grant the license but a bailee, if it delivers the goods bailed to a third person, may prove that such person had a right to them as against the bailor.


The Doctrine of Estoppel is thus a very crucial rule so as to protect the persons who may fall a target to misrepresentation or fraud and thus ensure to protect and safeguard such persons against fraud and misrepresentation. The law of evidence takes efforts in order to instil faith in the minds of the people of a protecting provision which can help them safeguard themselves when the other attempts to do fraud or misrepresentation and try to harm or damage the title of the owner, licensor, landlord etc.

Thus the Law of Evidence provided under the Indian Evidence Act, 1872 provides for various provision for the admissibility or non-admissibility of facts, relevant facts. Etc. all with the aim to protect the individuals and the notion of the Doctrine of Estoppel is based on the same notion which is to protect the title of the true owner against persons who wish to put adverse possession or fraud or misrepresentation and thereby damage the title of the true owner.

  • Section 116 of the Indian Evidence Act, 1872
  • AIR 2002 SC 3294
  • Section 17 of the Indian Evidence Act, 1872
  1. The Law of Evidence by Batuk Lal
  2. Bare Act of the Indian Evidence Act, 1872
  3. Articles by Legal Service India and Lawbhoomi
  4. The Law of Evidence by Ratanlal and Dhirajlal

Written By: Nistha Savar

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