Estoppel

               Estoppel, a product of Equity Courts of England, has been statutorily encoded under Section 115 of Indian Evidence Act, 1872(hereinafter IEA). It springs out from famous latin maxim “allegans contraria non est audidendus” meaning (a person alleging contrary facts should not be heard). It is based upon the rational notion of admission and legitimate expectations first arising out in case of Pickard v. Sears (1). Object of estoppel is to prevent fraud and to secure justice between the parties by the promotion of honestly and good faith. Sir Edward Coke divided estoppel in three parts. 

    • Estoppel by Record such as the doctrine of Res Judicata as provided under Section 11 of Code of Civil Procedure,1908. 

    • Estoppel by Deed such as the doctrine of Feeding the Grant by Estoppel as provided under Section 43 of Transfer of Property Act, 1882. 

    • Estoppel by Pias or Conduct such as the doctrine of Estoppel as provided under Section 115, 117, etc of Indian Evidence Act, 1872. 

Estoppel by Conduct: 

               Simply Section 115, IEA provides that whenever a person by declaration, act or omission represents another to be something or believe in something, later neither he can be allowed to deny it nor his representative be allowed to deny it. 

Essentials: 

    i. Representation in the form of declaration or act or omission by one person to another.

    ii. Other person believed it and acts upon such belief thereby altering his position. 

    iii. The representation must be of existing facts. 

    iv. Such representation must have a proximate cause to lead other party to prejudice.

    v. The party claiming estoppel must show he was not aware of the real situation. 

       

             For a simple example to understand let's assume ‘A’ says to ‘B’ he wants to sell mobile for  ₨ 5000. This is a representation by declaration. ‘B’ on this begins to arrange money for Rs 5000 for mobile. This is changing/altering the legal position by ‘B’. Now if ‘A’ says I won't sell mobile. He can’t do so. He may be estopped by ‘B’ from denying the truth of selling.  

             One very important aspect of this doctrine is that it applies only upon a fact and not upon law. Equity cannot support the violation of any law. To understand this let's take an example. 

    • ‘A’ makes a contract with ‘B’. A agrees to file a particular suit anytime up to  6 years from the date of cause of action while The Limitation Act, 1963 only provides for 3 years limitation period for the same. ‘A’ files suit after 5 years. ‘B’ takes the plea that Limitation for the same has expired (even though he earlier agreed for 6 years duration). ‘A’ claims that ‘B’ is bound by estoppel. Here ‘A’ will fail because estoppel cannot defeat the statutory law i.e. The Limitation Act, 1963. 

Promissory Estoppel:

               The doctrine of promissory estoppel is an equitable doctrine. It is not expressly coded anywhere in India. Like all other equitable remedies, it is discretionary. Doctrine sometimes is called promissory estoppel, equitable estoppel, quasi estoppel, or new estoppel. Promissory estoppel is basically a hybrid doctrine which finds place neither in the contract nor in estoppel. It differs from estoppel in the manner that estoppel is always in regard to the existing fact while promissory estoppel is in regard of some future promise. It was first recognized by Lord Denning in Central London Properties Ltd. v. High Trees House Ltd.(2) Also known as High Trees case where your honor held “ A promise intended to be binding, intended to be acted upon, ad in fact acted upon is binding”. 

Essentials of Promissory Estoppel: 

    i. Representation or promise should be in regard to something to be done in the future. 

    ii. Representation or promise was intended to affect the legal relationship of parties. 

    iii. The other party altered his position believing such promise. 

               In India, there are two stages of application of this doctrine i.e. Pre Anglo-Afghan case and Post Anglo-Afghan case. Prior to this case, Doctrine was not applicable against the Government. In Union of India v. Anglo Afghan Agencies(3), Court held that doctrine was applicable against Government also. In this case, the Government announced certain concessions with regard to the import of certain raw material in order to encourage export of woolen garments to Afghanistan. Subsequently, only partial concession was given as against full concession as was so announced thus Supreme Court held that Government is estopped from going back from its promise. The doctrine of promissory estoppel is an exception to the doctrine of consideration in contract. Under it, though future promises are not supported by any consideration but if a promise is made in circumstances involving legal rights and obligations than the parties are enforced to do what they promised. In, M/S Motilal Padampat Sugar Mills v. State of Uttar Pradesh(4), it was reported in the newspaper that the State of Uttar Pradesh would grant 3-year sales tax exemption to new industrial units. Petitioner set up his vanaspati plant after reconfirming news with Chief Secretary of the state. Subsequently, the Government abrogated the policy. It was held that the Government is bound by the declaration. 

               Lastly, it has to be remembered that Estoppel is a rule of civil action only. No criminal liability can be brought by a party.  It is founded on sound principles of justice, equity and good conscience which are the essential pillars of any sustainable and mature justice delivery system. Once again the challenge before young judges in India which are working at ground level  (i.e. Civil Judges (J.D. & S.D. Cadre) is to ensure its actual implementation without fear and favor. Doctrine, if applied carefully and meticulously has the potential to serve society and promote the rule of law in true spirit. 

                                                             

Harihar Gupta

LL.M.

1.[1887] 6 Ad. & E. 469 

2.  [1947] KB 130 

3.  1968 AIR 718

4. 1979 AIR 621

How to write a short answer in competitive exam ? 'Restitution stops when repayment begins'.

                             Restitution stops when repayment begins

          The doctrine of Restitution simply means that if a person has unjustly enriched himself, the benefits need to be returned in light of golden principles of equity and justice. Doctrine gains prominence when applied in the case of minor because of the rule that minor’s agreement is void ab initio. The question which arises here thus is, Whether minor also need to return benefits unjustly taken?

          The issue first arose in an English case Leslie Ltd. v. Sheill1, whereby a creditor wanted to restitute/recover £ 475  from a minor who had taken loan by falsely representing himself to be a major. The creditor only claimed restitution of money which was given under deception. However, the Court of Appeal held that repayment by minor is not restitution. It is rather a way to enforce a void agreement which cannot be permitted. Court further held that “Restitution stops when repayment begins”. Basically in the cloak of restitution, a void agreement cannot be enforced. Hence under English law, a minor is not liable to pay the money back even if unjustly taken. 

Indian Position: 

          In India, the point was first raised in the landmark case of Mohori Bibee V/S Dharmodas Ghose2 which was decided by a bench of judges comprising of Lord Mcnaughton, Lord Davey, Lord Lindley, Sir Ford North, Sir Andrew Scoble and Sir Andrew Wilson, JJ. In this case, a Mahajan Brahmo Das had advanced money to minor Mr. Dharmodas Ghose despite being aware of the fact that Mr. Ghose is minor. Mahajan claimed restitution of benefits under Sections 64, 65 of Indian Contract Act, 1872 (hereinafter IC Act), and Ss. 38 and 41 of the Specific Relief Act,1877 (hereinafter SR Act). Court refused to give relief under IC Act as minor’s agreement is void ab initio and further seceded help under SRA as Mahajan had not approached the court with clean hands. He was well aware of the minor’s age. In reality, he wanted to usurp the house of minor. 

          After the Mohiri Biwi case, many conflicting views came by different Indian courts, and finally, the issue was settled in famous case of Khan Gul v. Lakha Singh3 in which Shadi Lal J. held that this English doctrine is not applicable in Indian law. This view was also incorporated under Section 33 of the Specific Relief Act, 1963. Thus in India, both minor, as well as major both, have to return benefits if unjustly taken in light of Section 33 of SR Act,1963. Hence, English doctrine ‘Restitution stops when repayment begins’ is not applicable in India. 

                                               

Harihar Gupta

LL.M.

1. (1914) 3 K.B.607

2. (1903) 30 Cal 539 (Pc)

3. AIR 1928 Lah 609

Dying Declaration

                Death is as certain as Life. William Shakespeare in play Richard II written in 1595 wrote some lines that can be highlighted as the rational behind the dying declaration doctrine. These lines are as under:

 

                   “When words are in scarce, they are seldom spent in vain;

                    They breathe the truth that breathe their words in pain.”

               Deceased victim is perhaps the best source of knowledge of crime but since he is no more his statement if any given to a person before death explaining his death or circumstances which led to death are admissible as evidence. Concept of dying declaration is based upon celebrated rule of Nemo Moriturus Presaminiter meaning that a person will not meet his maker with lie in his lips. Indian jurisprudence applies this doctrine only partially because expectancy of death is not a prerequisite for law to come into motion. Concept has been statutorily encoded under Section 32(1) of The Indian Evidence Act, 1872 (hereinafter IEA, 1872) . Rational behind it is necessity and convenience. Grounds for admission of dying declaration are as under.

• Death of Declarant
  
  
• Necessity (It is the only available evidence under the circumstances.)
  
  
• The sense of impending death, which creates a sanction equal to the obligation of an oath. 
   

Essentials for Section 32 (1), I.E.A 1872:

• Statement can be made in any form i.e. verbal/oral/written/gestures. 
   
• Person making the statement must have died. (Otherwise it will be relevant under Section 21(1) of I.E.A 1872 and can be used to contradict S.145, to corroborate S.157 or to impeach the credit of witness S.155 of I.E.A 1872.)
  
  
• Statement must relate to cause of his death or the circumstances of transaction which resulted in his death. 
   
• The cause of death must be in question. 
   
• Depositor must be competent and in fit state to depose. 
   
• Statement must be complete and consistent.

Circumstances of transaction:

           In India, any statement which is related to circumstances of transaction which ultimately led to the death are duly relevant if there is sufficient nexus established between transaction and death. In Pakala Narayan Swamy v. King Emperor¹ mere statement of deceased given to his wife i.e. “I am going to accused” (as he is indebted to me) was held relevant by Lord Atkin as a circumstance which led to death. Similarly in Sharad Birdichand Sharda v. State of Maharashtra² letters written by a daughter to her father about her critical condition at in laws home were held to be relevant as circumstance of transaction relating to death.

Evidentiary Value:

           Though legally, there is no rule which requires corroboration of statement received as dying declaration however general prudence requires so because it is actually an exception to hearsay evidence moreover its not made on oath and its veracity cannot be tested by cross examination in Court of law.

               Very earlier in Ram Nath Madho Prasad v. State of Madhya Pradesh³, Supreme Court held that dying declaration cannot be sole basis of conviction. Stand changed in Kushal Rao v. State of Bombay⁴, where Apex court held that Dying Declaration can become the sole basis of conviction. The main question which arose in the case was ‘Whether statement should be corroborated or not?’ which Court answered in the negative. Similarly in Kusa v. State of Orissa⁵, Apex Court held that if a dying declaration is true, consistent and coherent, it can be relied for conviction even if there is no corroboration. Law was ultimately settled in landmark judgment of Atbir v. The State (NCT of Delhi)⁶ where P. Sathasivam J. held that a dying declaration can be sole basis of conviction if two conditions are satisfied. Those are as under.

1. Deceased should be in fit state of mind to depose. 
    
2. Court should be satisfied about truthfulness and voluntary nature of said statement.

               Thus, once again thrust of examining the veracity of statement is largely delegated to the mind of a judge which opens the door of discretion however which should not be used arbitrarily but only to achieve the ends of justice.

Difference with English Law:

1. In England, Dying Declaration applies only in criminal cases. In India,it applies on civil as well as criminal proceedings. 
    
2. In England, it is used only for homicide cases. In India, used for both homicide and suicide cases. 
    
3. In England for doctrine to work there should be some expectancy of death. In India, there is no such requirement.

               Dying declaration is last hope of deceased to get justice. Doctrine is simply one of the various legal threads wedded to the social fabric to make justice delivery system more potent and sharp. Its role in countries like India, which have inquisitorial system assumes much more significance where judges have always played pivotal and centripetal role. Doctrine further engulfs the concept of social vigilance and analytical mind which radiates into the marrows of society. The challenge is not to evolve it further but to apply it fearlessly keeping in mind the conscience of society.

Harihar Gupta

LL.M.

                                

1(1939) 41 BOMLR 428

21984 AIR 1622, 1985 SCR (1) 88

3AIR 1953 SC 420

41958 AIR 22, 1958 SCR 552

5980 AIR 559, 1980 SCR (2) 801

6(2010) 9 SCC 1