{"id":221840,"date":"2002-12-05T00:00:00","date_gmt":"2002-12-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-l-sreedhar-ors-vs-k-m-munireddy-dead-and-ors-on-5-december-2002"},"modified":"2018-12-05T08:05:20","modified_gmt":"2018-12-05T02:35:20","slug":"b-l-sreedhar-ors-vs-k-m-munireddy-dead-and-ors-on-5-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-l-sreedhar-ors-vs-k-m-munireddy-dead-and-ors-on-5-december-2002","title":{"rendered":"B.L. Sreedhar & Ors vs K.M. Munireddy (Dead) And Ors on 5 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B.L. Sreedhar & Ors vs K.M. Munireddy (Dead) And Ors on 5 December, 2002<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Shivaraj V. Patil, Arijit Pasayat.<\/div>\n
           CASE NO.:\nAppeal (civil)  2971 of 1995\nAppeal (civil)  2972 of 1995\n\nPETITIONER:\nB.L. Sreedhar & Ors.\n\nRESPONDENT:\nK.M. Munireddy (dead) and Ors.\n\nDATE OF JUDGMENT: 05\/12\/2002\n\nBENCH:\nSHIVARAJ V. PATIL & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tThese appeals by special leave are directed against the judgment of
\nlearned Single Judge of the Karnataka High Court, which was rendered in a
\nFirst Appeal under Section 96 of the Code of Civil Procedure, 1908 (in short
\n‘the CPC’). Same was directed against the judgment and decree passed by
\nthe First Additional City Civil Judge, Bangalore City in Original Suit No.
\n582 of 1982.  The suit one for declaration and injunction was filed by
\nrespondent No.1 B.K. Lakshmaiah,  against his sons B.L. Ganesh-defendant
\nno.3, B.L. Sudhakar-defendant no.4, B.L. Babu-defendant no.5 and B.L.
\nSreedhar-defendant no.6, and defendant nos.1 and 2, 7 to 9 who were
\nalienees of certain properties which were aliented by defendant no.3. Lands
\nwere alienated first to defendants 7 to 9 who subsequently alienated them to
\ndefendant nos. 1 and 2.\t The factual background needs to be noted in detail:\n<\/p>\n
\tPlaintiff had two wives, 9 sons, 4 daughters and in addition, two pre-
\ndeceased daughter and son.  The defendants 3 to 6 were sons through the
\nfirst wife, while three sons and one daughter through the second wife were
\nnot parties to the suit. According to the plaintiff, Bovi Googa\/Bingooba son
\nof Munia was the original Barawardar, Thoti of Bommanahalli Village had
\nservice inam lands assigned to his hereditary office as an emolument in
\nconsideration of the services. Kaverappa, father of plaintiff-Lakshmaiah
\nsucceeded to hereditary office and also to the service inam lands and other
\nproperties belonging to his father by Govt. grant. He died in 1959, and
\nplaintiff succeeded to the Village Office as well as to the properties. The suit
\nSy. No.3 measured 5 acres 4 guntas out of which suit schedule properties 1
\nacre 28 guntas, according to plaintiff was under the possession and
\nenjoyment of the Hindu undivided family.\n<\/p>\n
\tThe Mysore Village Offices Abolition Act, 1961 (in short ‘the Act’)
\ncame into force w.e.f. 1.2.1963. It repealed the Mysore Village Offices Act,
\n1908 which provided for hereditary office.  Under Section 4 of the Act the
\nlands were resumed though there was a provision for re-grant to a holder of
\nthe village office under Section 5.  Section 5(3) of the Act prohibits transfer,
\nalienation of the land, except by partition, for a period of 15 years, without
\nprevious consent of the Deputy Commissioner.  Plaintiff claimed that he and
\nhis sons were living together in joint mess and shelter and he was Karta of
\nHindu undivided family. Plaintiff and defendant no.3 applied for re-grant
\nunder the Act.\tBy order dated 4.5.1972, the Assistant Commissioner,
\nBangalore passed an order re-granting the land.\t Plaintiff gave his consent
\nfor re-grant of entire land in favour of the defendant no.3. On 5.5.1972 and
\n3.6.1972 defendant no.3 applied for permission to sell 1 acre 28 guntas of
\nland.  The permission was granted accordingly. On 23.10.1072 defendant
\nno.3 sold lands in favour of defendant nos. 7 to 9 who on the same date sold
\nthe land to defendant nos. 1 and 2.  The sale-deeds (exhibits D11 and D12)
\nwere executed by defendant no. 3 and defendant nos. 4 to 6.  Mother of
\nminor defendant nos. 4 to 6 acted as legal guardian.  The suit was filed on
\n24.2.1982, as according to the plaintiff, defendant nos. 1 and 2 starting
\ndispossessing to the plaintiff. The relief sought for were as follows:\n<\/p>\n
i)\tfor a declaration that the plaintiff is the absolute owner of the suit-
\nschedule property;\n<\/p>\n
ii)\tand consequently for a permanent injunction restraining the
\ndefendants 1 and 2 from interfering with the peaceful possession and
\nenjoyment of the suit-schedule property either by themselves or
\nthrough their agents or assignees or coolies;\n<\/p>\n
iii)\tfor costs of these proceedings, and the court may deem fit to grant in
\nthe facts and circumstances of the case and in law.\n<\/p>\n
\tWritten statement was filed by defendant nos. 1 and 2 who pleaded
\nestoppel and also specifically pleaded that defendant no.3 was competent to
\nsell the lands in question.  Defendant no.3 in his written statement stated that
\nhe had borrowed money and the deeds in question were hypothecation deeds
\nand were not sale-deeds.  He conceded plaintiff’s prayer for decree in terms
\nof the reliefs sought for.\n<\/p>\n
The trial court framed several issues which are as follows:\n<\/p>\n
1.\tWhether the plaintiff proves that S.No.3 situated in Bommanahalli
\nwas regranted by the Assistant Commissioner to the plaintiff and the
\n3rd defendant on behalf of the joint family of the plaintiff and the
\ndefendants 3 to 8?\n<\/p>\n
2.\tWhether the plaintiff proves that the sale deed dated 23.10.1972
\nexecuted by the 3rd defendant in favour of Chikka Kaverappa and
\nothers is in fact only a mortgate?\n<\/p>\n
3.\tWhether the plaintiff proves that the said sale is hit by the provisions
\nunder the Karnataka Village Office Abolition Act, 1961 and therefore
\nis void under law?\n<\/p>\n
4.\tWhether the plaintiff proves his lawful possession over the suit
\nproperty on the date of suit?\n<\/p>\n
5.\tWhether the defendants 1 and 2 prove that the plaintiff is estopped
\nfrom questioning the sale transaction under the sale deed for the
\nreasons stated in para-7 of their written statement?\n<\/p>\n
6.\tWhat order?\n<\/p>\n
\tOn consideration of evidence brought on record, the trial court, inter
\nalia, held that (1) the principles of estoppel\twere not applicable, (2) there
\nwas sale and no mortgage, (3) sale on behalf of defendant no. 4 to 6 was a
\nnullity, various orders\t passed by the High Court in different proceedings
\nand the Tribunal constituted under the Act were of no consequence as the
\nplaintiff was not a party,  plaintiff and his sons were in lawful possession,
\ndefendant nos. 1 and 2 and defendant nos. 7 to 9 were not examined to
\ncontrovert stand of the plaintiff that he was in possession of the land.
\nEvidence tendered by DWs 3 and 4 about possession of defendants 1 and 2
\nwere not sufficient to overrule evidence of PWs 1 to 3, since possession
\nfollows title and plaintiff was in lawful possession over the suit land.  In
\nconclusion it was held that plaintiff defendant 4 to 6 are joint owners over
\n4\/5th extent of suit land and defendant nos. 1 and 2 have a right to seek
\npartition of 1\/5 share of defendant no.3, and injunction was granted against
\ndefendant nos. 1 and 2.\n<\/p>\n
\tAs noted above, the decision of the trial court was assailed in First
\nAppeal before the High Court.  By the impugned judgment, High Court
\nfound that the rule of estoppel and logic of res judicata were applicable to
\nthe facts of the case.\tSeveral circumstances were highlighted to so conclude.
\nThe conduct of the plaintiff and defendant no.3 was highlighted. Specific
\nreferences were made to the fact that though the deeds in question were
\nexecuted in 1972, for about 10 years there was no challenge.  There was
\nseries of litigations between defendant nos. 3 on one hand and defendant
\nnos. 1 and 2 on the other. In all these proceedings the adjudication was
\nadverse to defendant no.3.  Plea of the plaintiff that he was unaware of the
\nproceedings was not accepted in view of the fact that according to his own
\nshowing he was staying jointly with defendant no.3.  Reference was made to
\na proceeding before the Tribunal in which defendant no.3 had filed an
\napplication for grant of occupancy right. High Court noticed that the
\ndecision of the Land Tribunal was vitiated because plaintiff was a member
\nof the Tribunal. Without going in detail, as to whether plaintiff had
\nparticipated in the proceeding at the time of hearing, it was thought proper to
\nremit the matter back to the Tribunal for fresh adjudication.  On such
\nadjudication, the claim of defendant no.3 was rejected. A writ petition and
\nwrit appeal filed before the High Court in respect thereto were unsuccessful.\n<\/p>\n
\tIn support of the appeals filed by the plaintiff and defendant no.3, the
\nmain plea is the principle of estoppel and res judicata are not applicable.
\nThe inferential conclusions of the High Court about the plaintiff’s role in
\nvarious proceedings are contrary to material on record.\t So far as the then
\nminor sons’ claims are concerned, it was held that they are barred by time,
\nhaving not been presented within the specified time after attaining majority.
\nIt was submitted that the suit was on behalf of joint family.  Further, the
\nconclusion that plaintiff was not entitled to specific relief under Section 34
\nof the Specific Relief Act, 1963 (in short ‘Specific Relief Act’) he having
\nnot come to court with clean hands has no foundation or basis. The
\nconclusion of the High Court to the effect that litigations by defendant no.3
\nwere instituted as for himself, plaintiff and defendant nos. 4 to 6 is again
\nbased on surmises.  High Court has lost sight of the fact that because of
\ndefendant no.3’s wayward conduct relationship with him had turned sour
\nand practically there was no connection between the plaintiff and other
\nmembers of his family and defendant no.3. The suit was filed by plaintiff
\nand other members of the family. On re-grant the benefit enures to the entire
\nfamily.\n<\/p>\n
  Per contra, learned counsel for the respondents submitted that the
\nfactual position highlighted by the High Court clearly goes to show that
\nthere was a mischievous attempt to deprive the alienees of the legitimate
\nrights. High Court has rightly came to the conclusion that plaintiff was
\nestoppel from raising the pleas.  There is no truth in the submission that the
\nsuit was filed by the plaintiff for himself and other family members as the
\nreliefs claimed make the position abundantly clear that plaintiff had claimed
\nabsolute ownership. The plea of strained relationship between plaintiff and
\ndefendant no.3 has been taken for the first time before this Court.  There was
\nno plea to this effect in the suit, and not even before the High Court.\n<\/p>\n
First we deal with the stand of the appellant that on re-grant benefit
\nenures to the members of the family.  Learned counsel for the respondents
\nfairly accepted this legal position and in our view rightly because of what
\nhas been said by this Court in Nagesh Bisto Desai and Ors. v. Khando
\nTirmal Desai and Ors.<\/a> (1982 (2) SCC 79), Kalgonda Babgonda Patil v.
\nBalgonda Kalgonda Patil and Ors.<\/a>  (1989 supp.(1) SCC 246), and New
\nKenilworth Hotels (P) Ltd. v. Ashoka Industires Ltd. and Ors.<\/a> (1995 (1)
\nSCC 161). Therefore, indisputable legal position is that even if grant is made
\nunder the Act to any member of the family, the benefit enures to the whole
\nfamily.\t Having cleared this legal position, the contentious issues need to be
\nnoted.\tFirst comes the question whether rule of estoppel is applicable. The
\nfactual background highlighted by the High Court to hold about its
\napplicability is as follows.\n<\/p>\n
Though the plaintiff was not a party to several proceedings referred to
\nby the parties, conduct of the plaintiff clearly shows in the background of
\nevidence tendered that he was conscious of the proceedings.  One instance in
\nthis regard would suffice. Defendant no.3 filed an application in Form-7 of
\nthe Karnataka Land Reforms Act, 1961 claiming occupancy rights in respect
\nof particular items of agricultural land.  Defendant nos. 1 and 2 claimed
\nownership on the land, they were duly notified and after hearing both sides.
\nTribunal allowed claim of defendant no.3. It was brought to the notice of the
\nHigh Court when challenge was made to the order of the Tribunal, that
\nplaintiff was one of the members of the Tribunal.  He had participated in the
\nproceedings in question though he had retired in the middle. The Tribunal
\ncannot be said to have not been influenced to some extent at least by his
\npresence.  High Court in writ petition No.4430 of 1978 referred to orders of
\nthe Tribunal and came to hold that on the date of hearing plaintiff was
\nwithdrawn from the proceedings.\t No definite material was placed before it
\nto show as to what was done on the date when the petition had been heard
\nand orders were pronounced.   To meet the ends of justice, High Court
\nquashed order passed by the Tribunal and directed further inquiry and
\nfurther directed to render a decision in accordance with law. Undisputedly,
\nthe Tribunal re-heard the matter and held against the defendant No. 3.
\nAttempts before the High Court did not bring any result.\n<\/p>\n
From the material on record it is clear that there was series of
\nlitigations to which reference has been made by the High Court where the
\ncontesting parties were defendant no.3 and defendant nos. 1 and 2.  It would
\nbe hard to believe that plaintiff had no knowledge of the proceedings though
\nhe was living jointly with defendant no. 3 and his other children. No
\nsatisfactory explanation has been given by him in this regard. Some lands
\nwere sold by the plaintiff, which were contended to be for the benefit of the
\nfamily. Same logic would apply to the land sold by the defendant no.3. In
\nNovember, 1979 Tahsildar had initiated proceedings for resumption of land
\non the ground of alienation without permission. Notice issued for the
\npurpose was quashed by the High Court in W.P. No.19578\/79 by order dated
\n19.8.1980.\n<\/p>\n
In the plaint though reference was made to the property as jointly
\nfamily property, the reliefs claimed for, show that plaintiff sought for
\ndeclaration that he was the absolute owner of the property.  It could not be
\nexplained by learned counsel for the appellant, as to how in the reliefs
\nsought, that is, absolute ownership, the dispute could be treated to be one on
\nbehalf of the joint family. It has also not explained as to why defendant no. 3
\nhad filed the application claiming occupancy rights, and when on the date of
\nsuit, defendant nos. 3 and 4 were admittedly majors they were not added as
\nplaintiffs.  Strained relationship as pleaded before this Court, nowhere find
\nplace in the suit.  Interestingly in the written statement of defendant no.3, it
\nwas stated that the deeds in question were not sale-deeds but were
\nhypothecation deeds. The suit was not for partition.  Though plea relating to
\nmanipulation of records, the same has not been rightly accepted by the court
\nbelow. Though in the revenue records for some years entries were in the
\nname of the plaintiff, but varying entries exist.\n<\/p>\n
It would be appropriate to deal with the concept of estoppel which
\nappears to be the basic foundation of the High Court’s conclusions in the
\nbackground of afore-noted factual conclusions.\n<\/p>\n
\tEstoppel is a rule of evidence and the general rule is enacted in
\nSection 115 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’)
\nwhich lays down that when one person has by his declaration, act or
\nomission caused or permitted another person to believe a thing to be true and
\nto act upon that belief, neither he nor his representative shall be allowed in
\nany suit or proceeding between himself and such person or his representative
\nto deny the truth of that thing.  [See Sunderabai and Anr. v. Devaji Shankara
\nDeshpande  (AIR<\/a> 1954 SC 82)].\n<\/p>\n
\t“Estoppel is when one is concluded and forbidden in law to speak
\nagainst his own act or deed, yea, though it be to say the truth”  Co.Litt.,
\n352(a), cited in Ashpital v. Byron, 3B and S. 474(489); Simon v. Anglo
\nAmerican Telegraph  Co., (1879) 5 Q.B.D. 188 C.A.,  per Bramwell L.J. at
\np. 202; Halsbury, Vol. 13, Para 488. So there is said to be an estoppel where
\na party is not allowed to say that a certain statement of fact is untrue,
\nwhether in reality it be true or not. Estoppel, or conclusion, as it is frequently
\ncalled by the older authorities, may therefore be defined as a disability
\nwhereby a party is precluded from alleging or proving in legal proceedings
\nthat a fact is otherwise than it has been made to appear by the matter giving
\nrise to that disability.  Halsbury, Vol. 13, para. 448. The rule on the subject
\nis thus laid down by Lord Denman, in Pickard v. Sears, 6 Ad. & E. 469 at p.
\n474: “But the rule is clear, that, where one by his words or conduct willfully
\ncauses another to believe the existence of a certain state of things, and
\ninduces him to act to that belief, so as to alter his own previous position, the
\nformer is concluded from averring against the latter a different state of
\nthings as existing at the same time.” “The whole doctrine of estoppel of this
\nkind, which is fictitious statement treated as true, might have been founded
\nin reason, but I am not sure that it was. There is another kind of estoppel –
\nestoppel by representation- which is founded upon reason and it is founded
\nupon decision also.” Per Jessel, M.R. in General Finance & Co. v. Liberator,
\nL.R. 10 Ch.D.15(20). See also in Simon v. Anglo-American Telegraph Co.,
\nL.R. 5 Q.B.D.202 Bramwell, L.J. said” An estoppel is did to exist where a
\nperson is compelled to admit that to be true which is not true and to act upon
\na theory which is contrary to the truth.”\n<\/p>\n
\tOn the whole, an estoppel seems to be when, in consequences of some
\nprevious act or statement to which he is either party or privy, a person is
\nprecluded from showing the existence of a particular state of facts. Estoppel
\nis based on the maxim, allegans contrarir non est audiendus  (a party is not
\nbe heard to allege the contrary) and is that species of presumption juries et
\nde jure- (absolute or conclusive or irrebutable presumption), where the fact
\npresumed is taken to be true, not as against all the world, but against a
\nparticular party, and that only by reason of some act done; it is in truth a
\nkind of argumentum ad hominem.\n<\/p>\n
\t“In our old law books,” said Mr.Smith in his notes to the Duchess of
\nKingston’s case, “truth appears to have been frequently shut out by the
\nintervention of an estoppel, where reason and good policy required that it
\nshould be admitted…. However, it is in no wise unjust or unreasonable, but,
\non the contrary, in the highest degree reasonable and just, that some solemn
\nmode of declaration should be provided by law, for the purpose of enabling
\nmen to bind themselves to the good faith and truth of representations on
\nwhich other persons are to act.”\n<\/p>\n
\t“An estoppel is not a cause of action- it is a rule of evidence which
\nprecludes a person from denying the truth of some statement previously
\nmade by himself.” Per Lindley L.J. in Low v. Bouveria, (1831) 3 Ch. 82 at
\np.101.\tIn the same case, at p.105.Bowen L.J. added:” Estoppel is only a rule
\nof evidence; you cannot found an action upon estoppel.”\n<\/p>\n
\tEstoppel though a branch of the law of evidence is also capable of
\nbeing viewed a substantive rule of law in so far as it helps to create or defeat
\nrights, which would not exist or be taken away but for that doctrine.\n<\/p>\n
\tEstoppel is a complex legal notion, involving a combination of several
\nessential elements  statement to be acted upon, action on the faith of it,
\nresulting detriment to the actor. Estoppel is often described as a rule of
\nevidence, as indeed it may be so described. But the whole concept is more
\ncorrectly  viewed  as a substantive rule of law… Estoppel is different from
\ncontract both in its nature and consequences.  But the relationship between
\nthe parties must also be such that the imputed truth of the statement is a
\nnecessary step in the constitution of the cause of action.  But the whole case
\nof estoppel fails if the statement is not sufficiently clear and unqualified”
\n(per  Lord Wright in  Canada & Dominion Sugar  Co.  Ltd. v. Canadian
\nNational  (West Indies) Stemships Ltd. (1946) 3 W.W.R.\t759 at p. 764).\n<\/p>\n
\t“The essential factors giving rise to an estoppel are, I think-\n<\/p>\n
\t“(a) A representation or conduct amounting to a representation
\nintended to induce a course of conduct on the part of the person to whom the
\nrepresentation was made.\n<\/p>\n
“(b) An act or omission resulting from the representation, whether
\nactual or by conduct, by the person to whom the representation was made.
\n“(c) Detriment to such person as a consequence of the act or omission
\nwhere silence cannot amount to a representation, but, where there is a duty
\nto disclose, deliberate silence may become significant and amount to a
\nrepresentation.\t The existence of a duty on the part of a customer of a bank
\nto disclose to the bank his knowledge of such a forgery as the one in
\nquestion was rightly admitted.”\t (Per Lord Tomlin, Greenwood v. Martins
\nBank (1933) A.C.51.) See also Thompson v. Palmer, 49 C.L.R. 547; Grundt
\nv. Great Boulder, 59 C.I.R.675; Central Newbury Car Auctions v. Unity
\nFinance (1957)1 Q.B.371SD.MN<\/p>\n
“Estoppe,’ commeth of a French word “estoupe”, from whence the
\nEnglish word stopped, and it is called an estoppel, or conclusion, because a
\nman’s owne act or acceptance stoppeth or closeth up his mouth to allege or
\nplead the truth; and Littleton’s case proveth this description” (Co.Litt.352 a,
\nwhere it is said estoppel is of three kinds, i.e., matter (1) of record, (2) in
\nwriting, i.e, semble, by deed, (3) in Paiis).  To the same effect is the
\ndefinition in Termes de la Ley. (See Stroud’s Judicial Dictionary, Fourth
\nEdition, Page 943).\n<\/p>\n
\t“An estoppel,” says Lord Coke, “is where a man is concluded by his
\nown act or acceptance to say the truth.” Mr. Smith, in his note to the
\nDuchess of Kingston’s case, characterizes this definition as a little startling
\nbut it nevertheless gives a good idea of what it is, by no means easy to
\ninclude within the limits of a definition.  (1 Smith L.C. 760)<\/p>\n
\tThough estoppel is described as a mere rule of evidence, it may have
\nthe effect of creating substantive rights as against the person estopped.  An
\nestoppel, which enables a party as against another party to claim a right of
\nproperty which in fact he does not possess is described as estoppel by
\nnegligence or by conduct or by representation or by holding out ostensible
\nauthority.\n<\/p>\n
\tEstoppel, then, may itself be the foundation of a right as against the
\nperson estopped, and indeed, if it were not so, it is difficult to see what
\nprotection the principle of estoppel can afford to the person by whom it may
\nbe invoked or what disability it can create in the person against whom it
\noperates in cases affecting rights. Where rights are involved estoppel may
\nwith equal justification be described both as a rule of evidence and as a rule
\ncreating or defeating rights. It would be useful to refer in this connection to
\nthe case of Depuru Veeraraghava Reddi v. Depuru Kamalamma, (AIR 1951
\nMadras 403) where Vishwanatha Sastri, J., observed:\n<\/p>\n
\t“An estoppel though a branch of the law of
\nevidence is also capable of being viewed as a substantive
\nrule of law in so far as it helps to create or defeat rights
\nwhich would not exist and be taken away but for that
\ndoctrine.”\n<\/p>\n
\tOf course, an estoppel cannot have the effect of conferring upon a
\nperson a legal status expressly denied to him by a statute.  But where such is
\nnot the case a right may be claimed as having come into existence on the
\nbasis of estoppel and it is capable of being enforced or defended as against
\nthe person precluded from denying it.\n<\/p>\n
In his illustrious book “Law of Estoppel” 6th Edition, Bigelow has
\nnoted as follows:\n<\/p>\n
\t “Situations may arise, indeed, in which a contract
\nshould be held an estoppel, as in certain cases where only
\nan inadequate right of action would, if the estoppel were
\nnot allowed, exist in favour of the injured party. In such a
\ncase the estoppel may sometimes be available to prevent
\nfraud and circuity of action.”\n<\/p>\n
In another illustrious book “Estoppels and the Substantive Law” by
\nArthur Caspersz under title ‘Conduct of Indifference or Acquiescence’  it
\nhas been noted as follows:\n<\/p>\n
“40. It is, however, with reference to the third class of
\ncases that the greatest difficulty has arisen, especially
\nwhere statements have been made, expressly or by
\nimplication, which cannot properly be characterized as
\nrepresentations at all.\t It must now be regarded as settled
\nthat an estoppel may arise as against persons who have
\nnot willfully made any misrepresentation, and whose
\nconduct is free from fraud or negligence, but as against
\nwhom inferences may reasonably have been drawn upon
\nwhich others may have been induced to act.\n<\/p>\n
The doctrine of Acquiescence may be stated thus:\n<\/p>\n
“If a person having a right, and seeing another person
\nabout to commit, or in the course of committing, an act
\ninfringing upon that right, stands by in such a manner as
\nreally to induce the person committing the act, and who
\nmight otherwise have abstained from it, to believe that he
\nassents to its being committed, he cannot afterwards be
\nheard to complain of the act.”\t(Duke of Leeds v. Earl of
\nAmherst 2 Ph. 117 (123) (1846). This is the proper sense
\nof the term acquiescence, “and in that sense may be
\ndefined as acquiescence, under such circumstances as
\nthat assent may be reasonably inferred from it, and is no
\nmore than an instance of the law of estoppel by words or
\nconduct.” (De Bussche v. Alt. L.R. 8 Ch.D. 286 (314).
\nAcquiescence is not a question of fact but of legal
\ninference from facts found. (Lata Beni Ram v. Kundan
\nLall, L.R. 261 I.A. 58 (1899).\n<\/p>\n
\tThe common case of acquiescence is where a man,
\nwho has a charge or incumbrance upon certain property,
\nstands by and allows another to advance money on it or
\nto expend money upon it.  Equity considers it to be the
\nduty of such a person to be active and to state his adverse
\ntitle, and that it would be dishonest in him to remain
\nwillfully passive in order to profit by the mistake which
\nhe might have prevented. (Ramsden v. Dyson L.R. 1 E &
\nI, Ap. 129(140)(1865).\n<\/p>\n
\tx\tx\tx\tx\tx\tx\n<\/p>\n
42.\tIn such cases the conduct must be such that assent
\nmay reasonably be inferred from it.  The doctrine of
\nacquiescence has, however, been stated to be founded
\nupon conduct with a knowledge of legal rights, and as
\nstated in some cases appears to imply the existence of
\nfraud on the part of the person whose conduct raises an
\nestoppel.  The remarks of the Judicial Committee,
\nhowever, in Sarat Chunder Dey v. Gopal Chunder Laha,
\n(L.R. 19 I.A. 203) clearly extend the doctrine of estoppel
\nby conduct of acquiescence or indifference to cases
\nwhere no fraud whatever can be imputed to the person
\nestopped, and where that person may have acted bona
\nfide without being fully aware, either of his legal rights,
\nor of the probable consequences of his conduct. In every
\ncase, as already pointed out, the determining element is
\nnot the motive or the state of knowledge of the party
\nestopped, but the effect of his representation or conduct
\nas having induced another to act on the faith of such
\nrepresentation or conduct.\n<\/p>\n
\tLapse of time and delay are most material when
\nthe plaintiff, by his conduct may be regarded as waiving
\nhis rights, or where his conduct, though not amounting to
\na waiver, has placed the other party in a situation in
\nwhich it would not be reasonable to place him if the
\nremedy were afterwards asserted.  When, however, an
\nargument against a relief, otherwise just, is founded upon
\nmere delay not amounting to bar by limitation, the
\nvalidity of that defence must be tried by principles
\nsubstantially equitable.”\n<\/p>\n
\tIn Snell’s Principles of Equity, 27th Edition, Chapter 3, 12 Maxims of
\nEquity have been indicated. Of these maxims principles 5, 6 and 7 are
\nrelevant for the purpose of the case in hand. They are as follows:\n<\/p>\n
\t\tx\tx\tx\tx
\n“5.\tHe who seeks equity must do equity.\n<\/p>\n
6.\tHe who comes into equity must come with clean
\nhands.\n<\/p>\n
7.\tDelay defeats equities, or, equity aids the vigilant
\nand not the indolo Vigilantibus, non dormientibus, jura
\nsubveniunt.”\n<\/p>\n
 x\tx\tx\tx\tx<\/p>\n
The following passage from the “Law relating to Estoppel by
\nRepresentation” by Geroge Spencer, Second Edition as indicated in Article 3
\nis as follows:-\n<\/p>\n
\t“It will be convenient to begin with a satisfactory
\ndefinition of estoppel by representation. From a careful
\nscrutiny and collation of the various judicial
\npronouncements on the subject, of which no single one
\nis, or was perhaps intended to be, quite adequate, and
\nmany are incorrect, redundant, or slipshod in expression;
\nthe following general statement of the doctrine of
\nestoppel by representation emerges; where one person
\n(“the representor”) had made a representation to another
\nperson (“the representee”) in words or by acts and
\nconduct, or (being under a duty to the representee to
\nspeak or act) by silence or inaction, with the intention
\n(actual or presumptive), and with the result, of inducing
\nthe representee on the faith of such representation to alter
\nhis position to his detriment, the represent in any
\nlitigation which may afterwards take place between him
\nand the representee, is estopped, as against the
\nrepresentee, from making, or attempting to establish by
\nevidence, any averment substantially at variance with his
\nformer representation, if the represent at the proper time,
\nand in the proper manner, objects thereto.”\n<\/p>\n
\tIn Article 1175 at page 637 of Halsbury’s Laws of England, 3rd
\nEdition, Volume 14, it is stated as follows:\n<\/p>\n
\t“Waiver is the abandonment of a right, and is
\nexpress or implied from conduct. A person who is
\nentitled to the benefit of a stipulation in a contract or of a
\nstatutory provision may waive it…..”\n<\/p>\n
\t“The essence of waiver is “estoppel” and where
\nthee is no “estoppel” there can be no “waiver”, the
\nconnection between “estoppel” and “waiver” being very
\nclose.\tBut, in spite of that, there is an essential difference
\nbetween the time and that is whereas estoppel is a rule of
\nevidence waiver is a rule of conduct. Waiver has
\nreference to man’s conduct, while estoppel refers to the
\nconsequences of that conduct.”\n<\/p>\n
A few decisions of this Court which have illuminatingly dealt with the
\nconcept of estoppel may be noted.\n<\/p>\n
\tIn S. Shanmugam Pillai v. K. Shanmugam Pillai<\/a> ( AIR 1972 SC 2069)
\nit was observed that there are three classes of estoppels that may arise for
\nconsideration in dealing with reversioner’s challenge to a widow’s
\nalienation.  They are (1) that which is embodied in S.115 of the Evidence
\nAct, (2) election in the strict sense of the term whereby the person electing
\ntakes a benefit under the transaction, and (3) ratification i.e. agreeing to
\nabide by the transaction.  A presumptive reversioner coming under any one
\nof the aforesaid categories is precluded from questioning the transaction,
\nwhen succession opens and when he becomes the actual reversioner.  But if
\nthe presumptive reversioner is a minor at the time he has taken a benefit
\nunder the transaction, the principle of estoppel will be controlled by another
\nrule governing the law of minors.  If after attaining majority he ratifies the
\ntransaction and accepts the benefit thereunder, there cannot be any
\ndifference in the application of the principle of election.  The effect would
\nbe the same.  It may be that on attaining majority he has the option to disown
\nthe transaction and disgorge the benefit or to accept it and adopt it as his
\nown.  Whether after attaining majority the quondam minor accepted the
\nbenefit or disowned it, is a question to be decided on the facts of each case.\n<\/p>\n
\tIn Provash Chandra Dalui v. Biswanath Banerjee (AIR<\/a> 1989 SC
\n1834), it was observed as follows:\n<\/p>\n
“21.  The essential element of waiver is that there must
\nbe a voluntary and intentional relinquishment of a known
\nright or such conduct as warrants the inference of the
\nrelinquishment of such right.  It means the forsaking the
\nassertion of a right at the proper opportunity.\t The first
\nrespondent filed suit at the proper opportunity after the
\nland was transferred to him, and no covenant to treat the
\nappellants as Thika tenants could be shown to have run
\nwith the land. Waiver is distinct from estoppel in that in
\nwaiver the essential element is actual intent to abandon or
\nsurrender right, while in estoppel such intent is
\nimmaterial.  The necessary condition is the detriment of
\nthe other party by the conduct of the one estopped.  An
\nestoppel may result though the party estopped did not
\nintend to lose any existing right.  Thus voluntary choice
\nis the essence of waiver for which there must have
\nexisted an opportunity for a choice between the
\nrelinquishment and the conferment of the right in
\nquestion.  Nothing of the kind could be proved in this
\ncase to estop the first respondent.”\n<\/p>\n
In Indira Bai v. Nand Kishore<\/a> (1990 (4) SCC 668), it was observed as
\nfollows:\n<\/p>\n
“Estoppel is a rule of equity flowing out of fairness
\nstriking on behaviour deficient in good faith.\tIt operates
\nas a check on spurious conduct by preventing the inducer
\nfrom taking advantage and assailing  forfeiture already
\naccomplished. It is invoked and applied to aid the law in
\nadministration of justice.  But for it great many injustice
\nmay have been perpetrated. Present case is a glaring
\nexample of it. True no notice was given by the seller but
\nthe trial court and the appellate court concurred that the
\npre-emptor not only came to know of the sale
\nimmediately but he assisted the purchaser-appellant in
\nraising construction which went on for five months.
\nHaving thus persuaded, rather mislead, the purchaser by
\nhis own conduct that he acquiesced in his ownership he
\nsomersaulted to grab the property with constructions by
\nstaking his own claim and attempting to unsettle the legal
\neffect of his own conduct by taking recourse to law.  To
\ncurb and control such unwarranted conduct the courts
\nhave extended the broad and paramount considerations of
\nequity, to transactions and assurances, express or implied
\nto avoid injustice.”\n<\/p>\n
If a man either by words or by conduct has intimated that he consents
\nto an act which has been done and that he will not offer any opposition to it,
\nalthough it could not have been lawfully done without his consent, and he
\nthereby induces others to do that which they otherwise might have abstained
\nfrom, he cannot question legality of the act he had sanctioned to the
\nprejudice of those who have so given faith to his words or to the fair
\ninference to be drawn from his conduct.\n<\/p>\n
It cannot be doubted that there may be cases in which there is
\ndeception by omission, silence may be treated as deception only where there
\nis a duty to speak; in other words as Biglow points out in his book “Biglow
\non Fraud” (Volume 1 at page 597), ground of liability arises wherever and
\nonly where silence can be considered as having an active properly that of
\nmisleading.\n<\/p>\n
In view of the factual conclusions arrived at by the High Court, which
\nare  perfectly in order, the appeals are bound to fail.\t The rule of estoppel has
\nclear application, and in view of this finding it is not necessary to go into the
\nquestion whether Explanation 6 of Section 11 C.P.C. has any application or
\nnot.\n<\/p>\n
The appeals are accordingly dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B.L. Sreedhar & Ors vs K.M. Munireddy (Dead) And Ors on 5 December, 2002 Author: A Pasayat Bench: Shivaraj V. Patil, Arijit Pasayat. CASE NO.: Appeal (civil) 2971 of 1995 Appeal (civil) 2972 of 1995 PETITIONER: B.L. Sreedhar & Ors. RESPONDENT: K.M. Munireddy (dead) and Ors. DATE OF JUDGMENT: 05\/12\/2002 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-221840","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB.L. Sreedhar & Ors vs K.M. 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