Report No. 69
Estoppel Section 115
Chapter 8 of the Act deals with estoppel. The most important section of the Chapter is section 115. Under section 115, a person who makes a representation and induces a belief in the other person is precluded from denying its truth if the other person has acted upon it. This, of course, is not the text of the section; but it expresses the principle in ordinary language. The doctrine is known as 'estoppel'-a word which occurs in the marginal note of the section but not in the text.
57.2. The two main doctrines.-
"The Promise, like the wheel", said1 O.K. Chesterton, "is unknown in Nature and is the first mark of Man". This 'Promise' is as essential to all contractual relations, whether of individuals or States, as the wheel is to machinery. The recognition of the sanctity of the spoken or the written word, and of the responsibility attaching to a man's declaration, acts or omissions, which others have relied on, underlies the modern ESTOPPEL arising out of REPRESENTATIONS.2 That is the basis of the section. The principle is well understood, and needs no amendment. The discussion that follows is intended merely to elucidate certain important aspects. On a few points of detail, it will also be necessary to examine the case-law.
1. G.K. Chesterton on Belgium (August 1914); Casperd Estoppel and the Substantive Law, (1915), p. 1.
2. Casperd Estoppel and the Substantive Law, (1915), p. 1.
57.3. Various kinds of estoppel at common law.-
At common law, there were three kinds of estoppel, namely-(a) by record, (b) by deed, and (c) in pais.
(a) Estoppel by record is dealt with in sections 11-14 of the Code of Civil Procedure, 1908, and in sections 40-44 of the Evidence Act.
(b) Estoppel by deed is not the subject-matter of any special rule in the Indian Legal system.
(c) Estoppel in pais is dealt with in this Chapter (Chapter 8 of the Act).
57.4. Not exhaustive.-
In dealing with this and the following sections, it is to be remembered that they are not exhaustive of the law of estoppel, since all rules of estoppel are not also rules of evidence;1 secondly,2 section 115 or section 116 does not enact, as law in India, anything different from the law of England on the subject of estoppel.
1. Ganges Manufacturing Co. v. Sourujmull, 1880 ILR 5 Cal 669.
2. Sarat Chander v. Gopal Chunder, 19 IA 203 (215): 1892 ILR 20 Cal 296 (PC).
II. Nature of Estoppel
57.5. At this stage, a brief discussion of the nature of estoppel may be useful. In the case of Moorgate Mercantile Co.,1 Lord Denning M.R. made the following observations which succinctly describe the nature of estoppel:
1. Moorgate Mercantile Co. v. Turlehan, (1975) 3 All ER 314 (323) (CA).
"Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.".
Dixon J. put the principle in these words:2
"The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations".
1. Moograte Mercantile Co. v. Turlehan, (1975) 3 All ER 314 (323) (CA).
2. Grundt v. Great Boulder Pty Gold Mines Ltd., (1937) 59 CLR 641 (674) (Dixon, J.) quoted by Lord Denning in Moorgate Mercantile Co. v. Turlehan, (1975) 3 All ER 314 (323).
57.6. An estoppel, is thus, a personal disqualification, laid upon a person peculiarly circumstanced, from proving particular facts; whereas a presumption is a rule that particular inferences shall be drawn from particular facts, whoever proves them1. A man is estopped when he has said, done or permitted something or act, which the law will not allow him to gainsay.
1. Stephen Introduction to the Evidence, p. 175.
57.7. It is obvious that an estoppel amounts to a fictitious statement treated as true,1 and modem estoppel has the effect of making untruth take the place of truth.2
1. General Finance Co. v. Liberator, (1878) LR 10 Ch D 15: 20 (Jesse' MR).
2. Simmi v. Anglo American Telegraph Co., 1879 LR 5 QBD 202.
57.8. However, this untruth is substituted in the interests of justice-primarily for the reason that where an untruth has led another person to act upon it and change his position, it is just and fair to him that the untruth must be adhered to by its author.
57.9. Fraud not necessary.-
The conditions in which estoppel may arise are dealt with in section 115. In order that estoppel may arise, it is not necessary that there is any fraudulent intention established in connection with the misrepresentation which is the subject of estoppel .1 Occasionally, one comes across observations to the contrary. For example, in an Allahabad case2 it was observed that if the appellant acted in ignorance of his rights, there could be no question of estoppel operating against him. These observations were obiter, and we do not think that the Court intended to lay clown any such rule. Section 115 does not require that the person who, by his declaration or conduct, induces a belief in the mind of others, must have been aware of his rights.3
1. Sarat Chunder v. Gopal Chunder, 1892 ILR 20 Cal 296 (PC).
2. Lachman v. Rent Controller, AIR 1953 All 458.
3. AIR 1925 PC 146.
57.10. Estoppel not favoured in early times.-
Owing to its use in ancient tunes in shutting out the truth against reason and sound policy, the doctrine of estoppel1 was not favoured, and was characterised as "odious". In modem times, the doctrine has lost all odium, and has become one of the most important, useful and just, factors of the law. At the present day, it is employed not to exclude the truth; its whole force being directed to preclude parties, and those in privity with them, from unsettling what has been fittingly determined-a just principle which can be, and is daily administered to the well-being of society.
1. Bigelow Estoppel, 6th Edn., pp. 5, 6, cited in Woodroffe.
So much as regards the principle of the section and the nature of estoppel. A few points of detail relating to the section may now be considered.
57.11. Application to minors.-
On the question whether section 115 applies to a minor, there seems to be some conflict of decisions, as would be apparent from a Bombay case,1 where the case law on the subject is reviewed. It should be stated here that the controversy arose in the context of false declarations by minors as to age with reference to contractual capacity. That particular point is not of much importance now. But the views judicially expressed in the course of the discussion, as to the meaning of "person" in section 115, are still relevant.
1. Gadigeppa v. Balangowda, AIR 1931 Born 561 (568) (FB) (reviews cases).
57.12. According to one view, the word "person" in section 115 is confined to persons having capacity to contract. This is the view taken in the Calcutta High Court in an early case1 by Maclean C.J. and Prinsep J. while Ameer Ali J. was of the view that the section was not totally inapplicable to minors.
1. Brohmo That v. Dhurmo Das, 1898 ILR 26 Cal 381.
57.13. This view has not found favour with many High Courts; and, in the Bombay case, to which we have just now made a reference.1 Beaumount C.J. described the view as "plainly untenable". At the other extreme is the view2 that section 115 applies to a minor, and a minor is estopped from pleading his minority even in relation to contractual liability if there is fraud. In between is the Bombay view, namely, that (i) section 115 applies to minors, but (ii) in relation to contractual capacity, it is overridden by section 11 of the Indian Contract Act, 1872.
1. Gadigeppa v. Balangowda, AIR 1931 Born 561 (568) (FB) (reviews cases).
2. Jagar Nath Singh v. Lalta Prasad, 1909 ILR 31 All 21 (Banerji, J.'s view).
57.14. In the leading case on the contractual capacity of minors,1 the question whether section 115 applies to minors or does not apply, was left open by the Privy Council. There are, however, observations of the Privy Council in a later case2 to the effect that a deed by a minor is a nullity and incapable of founding a plea of estoppel.
1. Mohori Bibee v. Dhurmo Das, 1903 ILR 30 Cal 539 (PC).
2. Sadiq All Khan v. Jai Kishore, AIR 1928 PC 152: 30 Born LR 1346.
57.15. Proper view.-
As already stated above, the position regarding effect of false declaration as to age is not of importance. In terms of the relationship between section 115 on the one hand, and the provision regarding incapacity of minors in the Contract Act on the other hand, the proper view seems to be that estoppel cannot override a plain statutory provision of law. In other words, section 11 of the Contract Act being a matter of substantive law, it must prevail over section 115, Evidence Act, which is merely a matter of procedure.1
1. Gadigeppa v. Balangowda, AIR 1931 Born 561 (568).
57.16. But this does not mean that section 115 does not apply to a minor in other cases. The section could, for example, apply where the cause of action is not in contract or transfer of property, and is one not barred by a specific statutory provision. The Bombay view thus appears to be correct.
57.17. Position as to minors analysed.-
To elaborate the point, we can state two aspects of the matter thus-
(a) The law relating to estoppel must be read together with, and subject to, other laws in force, such as those relating to contract and transfer of property, and where such laws declare a minor to be free of liability in respect of a particular transaction, he cannot be made liable by virtue of an estoppel. An estoppel cannot alter the law, but in other cases, a minor may be estopped. A minor is not liable upon a contract nor for a wrong arising out of, or immediately connected with his contract, such as a fraudulent representation, at the time of making the contract that he is of full age.1
(b) A person under disability cannot by an act in pais, do what he cannot do by deed.2 He cannot, by his own act, enlarge his legal capacity to contract or to convey. He cannot be made liable upon a contract by means of an estoppel under this section, if it be elsewhere declared that he shalt not be liable upon a contract. To say that by act in pais that could be done in effect which could not be done by deed, would be practically to dispense with all the limitations the law has imposed on the capacity to contract.3
(c) But this does not mean that a minor can never be estopped. Under section 116, for example, (estoppel between landlord and tenant), a minor can be estopped .4 This is because section 11 of the Contract Act does not come in the way where the original tenancy was not entered into by a minor, who has now succeeded to the tenancy.
The broad assertion that the doctrine of estoppel in pais has no application whatever to infants, does not, therefore appear to be correct .5
Our own view has been set out at length above, in view of the doubts expressed on the subject.6
1. Pollock Contracts, bth Edn., pp. 52 and 72.
2. Brahmo Dutt v. Dhurmo Das Ghosh, 1898 ILR 26 Cal 388 (394).
3. Bigelow Estoppel, 6th Edn., p. 621, cited by Woodroffe Evidence, (1941), p. 865.
4. Kamiz Mehdi v. Rasul Beg, 5 Cal LJ 551: 48 LC 39, cited in Woodroffe Evidence Act, (1941), p. 865.
5. Chesire and Fifoot Contracts, (1971), pp. 89, 90.
6. Some of the footnotes have been omitted.