Evidence means testimony whether oral or documentary or real which may be legally received in order to prove or disprove some facts in disputes.  According to Stephen, “A law of evidence properly constructed would be nothing less than an application of practical experience acquired in courts of law to the problem of enquiring into the truth as to the controverted questions of facts”. The word estoppel is said to be where a party is not allowed to say that a certain statement of facts is untrue, whether in reality it is true or not. According to elder authority’s estoppel means “conclusion”.  It can be better explained as a disability whereby a party is precluded from alleging legal proceeding that a fact is otherwise than it has been made to appear by the matter giving rise to that disability.

Application of doctrine of estoppel

Estoppel is describing a mere rule of evidence but it may have the effect of creating substantive rights as against person estopped. Estoppel which enables a person against another person to claim right of property which in fact he did not posses is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. It may be a foundation in itself as a right against person estopped. Estoppel is often described as a rule of evidence but the whole concept is more correctly viewed as a substantive rule of law.

Kinds of estoppel

  1. Estoppel of record or quasi – record: – Estoppel of record or quasi – record arises:
  2. Where an issue has been judicially determined.
  3. Where the first determination was by a court having exclusive jurisdiction.
  4. In some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determine that status.

     Where the earlier decision is that of a court of record, the resulting estoppel is said to be of record, where it is of any other tribunal, whether constituted by agreement of parties or otherwise, the estoppel is said to be of quasi – record.  Estoppel by judgement is created by final judgement. A party relying on estoppel of by record should be able to show that the matter has been determined by judgement in its natural final. Estoppel by record in the name of res judicata has been dealt with in civil procedure code. Section 40 to 43 of the Evidence Act provides for admissibility of previous judgements. Judgement can be judgement in rem or judgement in personam. A judgement in rem can be defined as a judgement of a court of a competent jurisdiction determining the status of a person or thing. The judgements in personam are those judgements which determine the rights of the parties to the suit or the proceedings.

 According to section44 of the Indian Evidence Act ,1872 if a judgment of a court is filed in a case to prove estoppel it may be shown that the court delivering the judgement has no jurisdiction or that it was obtained by fraud. A judgement obtained by fraud or collusion, may be treated as nullity and it will not work as an estoppel.

  • Estoppel by Deed: 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 deny any matters in the deed. It is rule of evidence according to which certain evidence is take to be conclusive in nature as to admit of no contradictory proof. A person is bound by the recitals in a deed to which he is a party. If the person does not rely on the estoppel by recital and enters into an issue he cannot rely on the doctrine of estoppel. Also, when the deed has arisen out of fraud, force, forgery etc. no estoppel can be drawn.
  • Estoppel by matter in pais: Where one has either by words or conduct made to another a representation of fact, either with knowledge of its falsehood or with the intension that it should be acted upon, or has so conducted himself that another would 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, an estoppel arises against the party who made the representation , and he is not allowed to cover that the fact is otherwise than he represented it to be.

Distinction between Estoppel and Res judicata

Estoppel prevents a person from saying one thing at one time and retreating from it at another time. Res judicata prevents the jurisdiction of the court on the subject matter already decided by competent court on same issue, between same parties. Estoppel is rule of equity. Res judicata is rule of legal procedure. Estoppel is based on rule of equity, justice and good consciences. Res judicata is based on public policy. Estoppel can be inferred from the conduct of the parties. Res judicata is claimed on the basis of previous decision of competent court. Estoppel originates from representation or conduct of the party. Res judicata originates from decision of court.

Section 115

 According to section 115 of Indian Evidence Act,1872 say about estoppel. 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 representatives shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.  In Chaitanya Charan vs. Manik Chandran “Section 115 lays down that when one person by making false representation has intentionally caused a person to believe to a thing to be true and to act upon such belief, neither he nor his representatives in a subsequent proceeding will be allowed to say that the representation was false”. The facts of illustration of this section are taken from Pickard vs. Sears in which the court stated the principle of estoppel by conduct in these words: “Where one by his words or conduct willfully causes another to believe in 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 the time”.

Salient conditions:

  • One party should make a factual representation to the other party
  • The other party should accept and rely upon the aforesaid factual representation
  • On the aforesaid factual representation, the second party should alter his position
  • Altering of position should be such that it would be inequitable to require him to revert back to original position.


So as a conclusion we can say that estoppel is basically an equitable claim that prevent someone from denying the existence of a state of affairs in situations where such denials will be abstracted. There are also provisions related with estoppel of tenant and of licensee of person in possession which is explained in section 116 of Indian Evidence Act,1872 and Estoppel of acceptor of bill of exchange, bailee or licensee under section 117 of Indian Evidence Act.


  1. Law of Evidence – Batuk Lal – Central Law Agency

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