Questions and answers on law {Part 92}

 Q 1:- What are Kinds of estoppel?

Ans:- “Broadly, estoppel is of three classical kinds: estoppel by record, estoppel by deed, and estoppel by conduct or representation. In modern law, promissory estoppel is also a well-recognized form, where a person who makes a clear promise, intending another to act on it, cannot later go back on it if the other has altered his position. Thus, estoppel prevents a party from denying what he earlier represented.

Brief classification

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Notes on Estoppel- S 115 of Indian evidence Act

S 115 of Indian evidence Act:-

When a person 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 can be allowed to deny truth of that thing in a suit or proceeding between himself and such person or his representative.

Principle of S 115 :- In simpler language,a person can not be allowed to say one thing at one time and the contrary at another: He can not blow both hot and cold at the same time. It is not necessary

to prove that he acted with any fraudulent intention. He will be estopped if he himself was acting under a mistake or misapprehension.

This section does not apply where the statement relied upon is made to a person who knows the true facts and is not misled by the untrue statement .There can be no estoppel if true facts

are known to both the parties.
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Whether party to deed can challenge recitals of deed?

 The implications of a statement made in a deed upon the party who made the same has been considered by the privy council in the case of Martin Cashin v. Peter J. Cashin, MANU/PR/0080/1938 : AIR 1938 Privy Council 103 and it has been ruled as follows:-

"..........In a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it........"

(Emphasis supplied)

13. In the case of Lachman Lal v. Munshi Mahton, MANU/BH/0225/1933 : AIR 1933 Pat 708, this Court has also considered the effect of a recital made in a deed in view of Section 115 Evidence Act has held as follows:--

"........There can be no dispute as to what the law is on this point, and it was settled as far back as 1850 when the case of Stroughill v. Buck (5) was decided. Pateson, J., in that case stated the law in these terms:

"When a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument."

14. In this regard, it would also be fruitful to notice the general effect of recital in a deed as mentioned in Halsbury's law of England, IV edition, Vol. 13, para-57 as follows:

"The General Effect:-- By executing a deed in accordance with all the requirements for such execution, the party whose act and deed it is becomes, as a general rule, conclusively bound by what he is stated in the deed to be effecting, undertaking or permitting. He is, in general, so bound even though another party has not executed the deed, or he has himself executed it in a false name. He is, as a rule, estopped from averring and proving by extrinsic evidence that the contents of the deed did not in truth express his intentions or did not correctly express them, or that there are reasons why he should not be obliged to give effect to the duty. This is equally the case whether the deed is expressed to operate as a conveyance of property or as a contract or otherwise....................................

But to all these general principles there are exceptions, cases, where the deed may be a nullity or may be avoided or corrected".

15. The concept of estoppel by deed has also been dealt with in paragraph-954 Volume 16 Halsbury's Law of England IV edition, as follows:

"....Estoppel by deed. Where there is a statement of fact in a deed made between the parties and verified by their seals, 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..."

16. As aforementioned there is no relief by the plaintiff in the suit to avoid the deed (Ext. B) nor there is relief that the recital in the said deed requires correction.

17. The said deed (Ext. B) was admittedly executed by the plaintiff along with other co-sharers accepting the fact of partition of the joint family properties. The said deed did not include the suit property of village-Meharpur. The plaintiff has come out with the case that a fraudulent recital was got in the said deed regarding the suit property being the self-acquired property of Fulchand Rai and Chandramani Rai. But even if the said allegation of the plaintiff is accepted, there is no pleading or evidence alliunde that the plaintiff and the other co-sharers knowingly and purposely left out the suit property from partition and therefore it was not made subject-matter of partition. The conspicuous absence of such a case by the plaintiff substantially dents the case of fraud as endeavored to be made out. As such, in view of the principles in this regard as mentioned above, there cannot be escape for the plaintiff from the binding effect of the recitals including the disputed recital in the deed (Ext. B) in question.

IN THE HIGH COURT OF PATNA

Second Appeal No. 197 of 2013

Decided On: 01.07.2017

 Punam Devi and Ors. Vs. Jai Narayan Rai and Ors.

Hon'ble Judges/Coram:

Vijayendra Nath, J.

Citation: AIR 2017 Patna 175

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Whether a person can be held bound by recitals of deed even if he has signed said deed without reading it?

Their Lordships wish to add that in a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it. 

BEFORE THE PRIVY COUNCIL

Privy Council Appeal No. 16 of 1937

Decided On: 13.01.1938

Martin Cashin and others  Vs. Peter J. Cashin

Hon'ble Judges/Coram:

Lords Atkin, Thankerton, Bussell of Killowen, Wright and Maugham

Citation:AIR 1938 Privy Council 103

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