Q. Define and explain Estoppel.

INTRODUCTION
The principle of estoppel implies that a man shall not say one thing at one time and
later say a different thing. Estoppel is based on the principle of equity. When one
person has induced another person by his act, omission or declaration to believe
something to be true and the other person has taken some steps on believing upon
the statement. It would be most inequitable and unjust to allow the former to deny
or repudiate the effect of his former statement. The principle of estoppel is a rule
which prevents a person from taking up inconsistent position from what he has
pleaded or asserted earlier. The provisions of sections 115 to 117 of the evidence
act deals with the principles governing estoppel. The principle of estoppel was
effectively laid down in Pickard v. Seers, A was owner of a machinery allowed it to
be in possession of B. C obtained a decree against B and when machinery was
seized in execution of that decree A did not raise any objection and subsequently C
sold the machinery to other persons and A instituted a suit setting up his title to that
property. The court held that A is estopped from denying the fact that B is the
owner of that machinery and held that when one person wilfully causes a belief in
another that a certain thing is true and induces that other person to act upon that
belief and to alter his position the former is precluded from setting up a different
state of things.

SECTION 115
Section 115 of Indian Evidence Act, 1872 defines estoppel. According to it-

“When one person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true by his act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that
thing.”

It can be said in simple words that- Where any person intentionally causes another
person to believe a thing to be true by his act, omission or declaration and such
other person acts upon such belief, then that person shall not be allowed to deny
the truth of that thing, later in a suit or proceeding. It means that a person cannot
deny thing after having stated it to be true. In the case of B. Manjunath v.
C.G.Srinivas it has been stated by the Karnataka High Court that by way of the
principle of estoppel, the plaintiff may be stopped to go back on his representation.
This is the doctrine of Estoppel.

It could be explained by an illustration. A person accepts his liability to make

payment under an arbitration award. Such a person cannot later challenge the
award. Section 115 gives a good example. ‘A’ intentionally and falsely leads ‘B’ to
believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale
on the ground that, at the time of the sale, he had no title. He must not be allowed
to prove his want of title.

In respect of estoppels, the case of ‘Shammim Beg v. Najmunnissa Begum’ is

quotable. In this case, a document was executed between the husband and wife an
intention that the wife has begotten before the marriage with the husband. The
husband had accepted the fact of knowing the child. The wife gave birth to a child
on the day of marriage. The husband could not challenge the legitimacy of this
child. He is bound by his previous statements.

ESSENTIALS ELEMENTS OF ESTOPPEL UNDER EVIDENCE ACT

From the above definition of estoppels, the following essential elements of it

reflect-

 A person misrepresents by his act, omission or declaration,

 Such misrepresentation is regarding the existence of any fact.
 Such misrepresentation is intentionally caused to make a person believe a
thing.
 The other person believes such misrepresentation to be true.
 The other person does some act believing such misrepresentation.
 Such act causes injury to the other person; and
 Such a person is unaware of the actual situation.

CONDITIONS FOR DOCTRINE OF ESTOPPEL UNDER SECTION 115

OF THE EVIDENCE ACT
The following conditions are to be satisfied in order to apply the doctrine of
estoppel:

 The representation must be made by one person to another person.

 The representation made must be as to facts and not as to the law.
 The representation must be made as to an existing fact.
 The representation must be made in a manner which makes the other person
believe that it is true.
 The person to whom the representation is being made must act upon that
belief.
 The person to whom the representation would be made should suffer a loss
by such representation.

EXCEPTION TO ESTTOPEL UNDER EVIDENCE ACT

 It does not apply to those matters where both parties have the knowledge of
truthfulness.
 It does not apply against statutes. It cannot contradict the provision of
statues. It also cannot remove the condition of statues.
 It does not apply to regulations.
 It does not apply to ultra-virus orders and decisions.
 It does not apply to questions of law.
 It does not apply to sovereign acts of the government.

CASE LAWS OF ESTOPPEL

Life Insurance Corporation v. O.P. Bhalla and Ors., in this case the assured
failed to pay the second installment and the policy lapsed. Later, the
corporation accepted 3rd and 4th installment and also the 2nd installment
with an interest. This policy ultimately came to an end with the death of the
assured. The nominee of the assured claimed the insured amount from the
corporation. It was found that before entering into a contract with the
corporation, the assured had undergone an operation about which he didn’t
inform the insurer. The court said that the assured’s act of keeping the
information with him would not allow him to take the plea of estoppel. The
defense that disclosing it would not have made any difference if it was not
accepted.
 Sanatan Gauda v. Bharampur University, in this case the student took
admission in a law college and successfully complete his two years. In his
final year university objected from releasing his result of the pre and
intermediate examination on the ground that he is not eligible to do so. The
Student had submitted all the required documents at the time of admission
and also has obtained the card for writing his final examination. The court
declared that the university would be estopped from doing so, i.e. declaring
the result of that student.

Kumar Nilofar Insaf (Dr.) v. State of Madhya Pradesh, in this case while
taking the admission in the medical college, the college released a merit list
for house-job. When the same merit list was released for the admission in
the M.D. course, the plaintiff filed a suit. The court estopped the plaintiff
since he had consented to the first merit list.

Dataram S. Victore v. Tukaram S. Victore, in this case the tenants while

filling the form for an agreement clearly stated that he would be living along
with his brother and his wife and it was accepted. The court dismissed the
order of eviction and estopped the landlord from terminating the tenancy on
the ground of lease.

SCOPE OF SECTION 116 OF EVIDENCE ACT

 It is concerned with those estoppels which occur between:

 Tenant and his landlord
 Licensor and licensee
 Title of the landlord cannot be denied.

Once a tenant enters into a relationship of landlord and tenant, receives the
possession of the property, and finally enters into the premise, during the period of
such possession may deny to things or course of action by the landlord which is
against to what was mentioned in the agreement. A tenant in no case claims that
the landlord has no title over the property.

CASE LAWS OF SECTION 116 OF EVIDENCE ACT

Udai Pratap v. Krishna Pradhan, in this case the continuance of tenancy was
defined as a period during which the tenant enjoys the possession of the property
and is seeking benefits from it.

Moti Lal v. Yar Md, in this case the judge said that the tenant cannot say that the
landlord has no more interest in the property when the landlord filed a suit for
default payment and ejectment. It is only after leaving the possession can the
holding of title by the landlord be questioned.

Sri S.K. Sharma v. Mahesh Kumar Verma, in this case defendant upon attaining
a higher post was allotted a premise by the railway company. In the case, it was
said that even when it was not known whether the land belonged to the railway
company or not, the officer will have to evacuate the premises after retirement.

SECTION 117 OF EVIDENCE ACT

The section states that the acceptor of the bills of exchange cannot deny the person
who is supposed to draw the bills, from drawing it or endorsing it. Also no bailee
or licensee can deny the fact that at the time when the bailment and license began,
the bailor and the licensor had the authority to make bailment or to give license.
The person accepting the bills of exchange can deny that the bills of exchange
were really drawn by the very person who showed to have drawn it. If the bailor
mistakenly delivers the goods to some third party instead of the bailee, he can
prove that a third party has the right over the goods bailed against the bailor.

SCOPE

This section demarcates that the person who accepts the bills of exchange although
cannot deny that the person drawing the bills has the authority to draw or to
endorse it but can deny that the bills were actually drawn by the person by whom it
appeared to have been drawn.The bailee or the licensor cannot deny the fact that at
the beginning of bailment or grant, the bailor or the licensor had the authority to
perform it. But a bailee can prove that the third party to whom the goods were
delivered instead of the bailor had the right against the bailee.

CONCLUSION
The Doctrine of estoppel is an important principle which protects people against
fraud or misrepresentation. There are several instances where an innocent person
becomes a prey to false representations made to them by some party. Sometimes
the case may be such that the plaintiff suffered huge losses. This doctrine avoids
such situations and charges the person for his wrongful conduct. The legal
principle of estoppel gives an incentive to every one of those people who tries to
make false representations to others and induces them to act upon it by planting
their faith in them, and incur losses as a result of such false representations, by not
performing such acts, else they would be held liable.

Q. Define Evidence and explain provision relating to documents

and Documentary Evidence.
INTRODUCTION
The word 'Evidence' is derived from Latin term 'evidens' or 'evidere’ which means
to prove, to ascertain, to make clear. According to Bentham evidence can be
defined as any matter of fact, the effect of which is to produce in a mind a
persuasion, affirmative or disaffirmative, of existence of some other fact. The fact
sought to be proved is the principal fact and the fact which tends to establish it, is
evidentiary fact.

Section 3 of Indian Evidence Act defines the term 'Evidence. The definition given
in Section 3 includes two kinds of evidence- (1) Oral evidence and (2)
Documentary evidence. But it does not mean that there cannot be any other kind of
evidence.

(a) Oral evidence: It means all the statements which the court permits or requires to
be made before it by witnesses, in relation to matters of fact under inquiry, and

(b) Documentary evidence: It means and includes all the documents including the
electronic. records produced for the inspection of the Court.

In Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, Supreme Court has held
that the definition of evidence is exhaustive. It is exhaustive in the sense that every
kind of evidence can ultimately be reduced to the category of either oral or
documentary evidence.

PROOF OF CONTENTS OF DOCUMENTS

Section 61 of the Indian Evidence Act provides that contents of documents may be
proved by primary evidence or secondary evidence. Further, Section 64 lays down
rule of best evidence according to which documents shall be proved by primary
evidence except in the cases mentioned under Section 65. It means that as a general
rule all documents must be proved by primary evidence and only if the situation
falls within any of the parameters given in Section 65 secondary evidence may be
admitted.

In Ram/i Dayawala and Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 Supreme
Court held that if the truth of the facts stated in a document is in issue mere proof
of the handwriting and execution of the document would not furnish evidence of
truth of the facts or contents of the documents. The truth or otherwise of the facts
or contents of the document would have to be proved by admissible evidence.

MEANING OF PRIMARY EVIDENCE

Section 62 of the Evidence Act defines primary evidence. It means the original
document itself produced for the inspection of Court. It is called the best evidence
which affords the greatest certainty of the fact in question. For example, A
executes a sale-deed in favour of B. B files a suit for possession of property on the
basis of sale-deed. A denies to have executed sale-deed. B produces the very sale-
deed before the Court. This is the primary evidence of the contents of the sale-
deed.

Documents in several parts Explanation 1, part 1 of Section 62]: A document is

said to be executed in several parts when it is written and executed by all the
parties to the instrument as many times over as there are parties, each party
retaining one copy of writing thus signed. Sometimes it is convenient that each
party to transaction should have complete document in his possession for which
more than one documents are written and signed by each party. All such
documents are original and primary evidences.

For example, three persons A, B and C, partition their property in three equal
shares. They execute three deeds each describing the distinct shares of the partners
signed by all and each of them. All three deeds are original.

Documents in counterpart Part 2, Explanation 1 to Section 62]: Where a document

is executed in counterpart and each counterpart is executed by one of the parties to
the deed, each counterpart is primary evidence against the party executing it and
secondary against the other party.
For example, the person granting the lease executes the deed stating the terms of
the lease called 'Patta?.

The person accepting the lease executes a deed called Qubulgal accepting all terms
of 'Pattd. In this case,

'Pat' is primary evidence as against the leasor and Qubulgad is primary evidence
against the lessee.

Document made by uniform process [Explanation 2 to Section 62]: According to

this explanation, When a number of documents are prepared by one uniform
process like printing or photography, each is primary evidence of contents of the
rest but not of the contents of the original.

For example, A person is shown to have in his possession, a number of placards

printed at one time.

Any one of the placards is primary evidence of the contents of another but none of
them is primary evidence of the original.

Meaning of secondary evidence [Section 631]

Section 63 of the Evidence Act gives exhaustive list of the kind of secondary
evidence admissible under the Act. Secondary evidence means and includes the
following:

(a) Certified copies: Certified copies given by the public officer under Section 76
of the Act of any public document is admissible as secondary evidence. Uncertified
copies of public documents are not held to be secondary evidence by the Courts
[Kalyan Singh v. Smt. Choti and Ors, AIR 1990 SC 396].

(b) Copies made by mechanical process: Copies made from the original by
mechanical process such as printing or photography which in themselves ensure
accuracy of the copy and copy compared with such copies made by mechanical
process are secondary evidence. For example, a photograph of original is
secondary evidence of its contents.

(c) Copies made from or compared with original: If a copy is prepared word to
word from the original, it is a secondary evidence. A copy prepared by another
copy but compared with original is secondary evidence.
(d) Counter parts of document: The counter parts of a documents are secondary
evidence against the person who did not execute it. For example, in case of
execution of 'patta and qubuliyal, the 'patta is secondary evidence against the
tenant and 'qubuliya will be secondary evidence against landlord.

(e) Oral accounts of contents of documents: Sometimes, it so happens that neither

the original nor a certified copy of it is available. In such case, it is enough if
somebody who has read the documents is produced to give evidence of the
contents of the documents.

This list mentioned above is not exhaustive. The usage of the phrase 'means and
includes clearly indicates that there can be other evidences which can be secondary
evidence even though they are not mentioned in this section.

Circumstances when secondary evidence is admissible [Section 65]

Section 64 provides that documents shall be proved by primary evidence unless
secondary evidence is admissible in circumstances mentioned under Section 65 of
the Act which are as under:

(a) Where original is in possession of adverse party or person legally bound to

produce it:

(i) Where the original document is shown to be in the possession of adverse party,
or Person not subject to court process, or

(it) Person legally bound to produce it, and such person does not produce it even
after the notice mentioned under Section 66 of the Act.

Section 66 provides the rules as to notice to produce the documents. It lays down
that secondary evidence of the contents of the documents referred in Section 65(a)
shall not be given unless the party proposing to give such secondary evidence has
previously given notice to the party in whose possession or power the document is.

When notice not required: Section 66 further provides that in following case, no
notice will be required to produce secondary evidence:

1. Where the document to be produced is itself a notice.

2. When from the nature of the case, the party knew that he will be required to
produce it.
3. When its possession is obtained by force or fraud.

4. When the adverse party has the original in court.

5. When the adverse party has admitted the loss of original.

6. When the person is out of reach of or not subject to process of the court.

(b) Where existence or contents of original is admitted: Secondary evidence is

allowed where the existence, condition or contents of the original have been
proved to be admitted in writing by the person against whom it is proved or his
privy. In such case, only the written admission is admissible.

(c) Original destroyed or lost: Where the original has been destroyed or lost or
when the pary ofcring cvidence of its content cannot, for any other reason not
atising from his own default or negle, produce it in reasonable time, secondary
evidence is allowed.

(d) Original not easily movable: When the original is of such a nature that it is not
easily movable contents may be proved by secondary evidence.

(e) Public document: Where the original is a public record under Section 74 of the
Act, only certifed copy of such record is admissible as secondary evidence.

(f) Certifted copy: Where the original is a document of which a certified copy is
permitted by this Act or any other law in force in India to be given in evidence,
secondary evidence in the form of such certified copy and of no other kind, is
admissible.

(g) Original consisting of numerous accounts: Where the original consists of

numerous accounts or other documents which cannot be examined conveniently in
court and the fact to be proved is general result of whole collection, evidence may
be given of such documents by the person who has examined them and who is
skilled in such examination.

Except as provided above, secondary evidence will not be admissible to prove the
contents of any document.

Supreme Court in M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712 held that

party who wishes to rely on the contents of the documents must adduce primary
evidence of the contents and only in exceptional cases will the secondary evidence
be admissible. However, if secondary evidence is available it may be adduced in
any form in which it may be available. The secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact true copy of
the original. The exceptions to the rule requiring primary evidence are designed to
provide relief in case where party is genuinely unable to produce the original
through no fault of that party.

electronic evidence and Evidence Act, 1872

Admissibility: The Amendment Act of 2000 amended Section 3 of the Indian

Evidence Act and it now provides that evidence wil include all the documents or
electronic records produced for the inspection of the Court. Thus, clectronic
records are kept in the category of documentary evidence. Section 59 of the Act
further provides that contents of documents or electronic records shall not be
proved orally Legislature added Sections 654 and 65B to incorporate the
admissibility of electronic evidence. These Sections lay down specific rules
relating to admissibility of electronic evidence.

In Anwar P. V. v. P.K. Basheer & Ors., (2014) 10 SCC 473, the Supreme Court
clarified this position and held that the legislature's intent was to introduce the
specific provisions as to the admissibility of electronic evidence as the evidence in
electronic form cannot be produced in the court of law owing to the size of
computer/server residing in the machine language and thus requiring the interpreter
to read the same.

Special rule for admissibility of electronic evidence Section 65A and 65B

Section 65A of the Act provides that the contents of electronic records may be
proved in accordance with Section 65B. This section performs the same function as
Section 61 does for documentary evidence. It creates a separate procedure to
ensure that the adduction of electronic records obeys the hearsay rule. Both the
Sections govern the admissibility of electronic evidence and the latter shall not be
admitted unless conditions of Section 65 are satisfied [Anwar P. V. v. P.K. Basheer
& Ors., (2014) 10 SC 473].

Section 65A provides that the contents of electronic records may be admitted as
evidence if the criteria provided in Section 65B is complied with.

Conditions for admissibility: Section 65B provides that any information stored in
an electronic record shall be deemed to be a document and shall be admissible in
any proceedings, without any proof or production of original, as evidence of
contents of the original if following conditions are satisfied:

(a) At the time of creation of electronic record, the computer that produced it must
have been in regular use.

(b) The kind of information contained in the electronic record must have been
regularly and ordinarily feed into the computer.

(c) The computer was operating properly throughout the said period or if not, in
operation was not such as to affect the electronic record or accuracy of the
contents.

(d) The duplicate copy must be a reproduction of the original electronic record.

Production of certificate [Section 65B (4): Section 65B (4) lists additional non-
technical qualifying condition to establish the authenticity of electronic record. It
requires the production of a certificate by an Officer responsible for computer on
which electronic record is stored or created. Such certificate shall

a) Identify the original electronic record and describe the manner of its creation.

() Describe the device used to produce that electronic record, and

(c) Certify compliance with the technological conditions of Section 65 B (2).

In Arjum Pandittao Khotkar v. Kailash Kushanrao Gorantyal and Ors., (2020) 7

SCC 1, Supreme Court held that the certificate required under Section 65B(4) is a
condition precedent to the admissibility of evidence by way of electronic record.
Where the requisite certificate has been applied for from the person or the authority
concerned, and the person or authority either refuses to give such certificate or
does not reply to such demand, the party asking for such certificate can apply to
the court for its production under the provisions of Evidence Act, CPC or Cr.PC.
The court further clarified that required certificate under Section 65B (4) is
unnecessary if the original doument itself is produced. Supreme Court overruled its
earlier decision in Shafhi Mohammad v. State of Himachal Pradesh, in which the
court held that a party who is not in possession of the device from which electronic
doucment is produced, cannot be required to produce the certificate under Section
65B(4) of the Evidence Act.

Proof as to Electronic or Digital Signature

Section 67A read with Section 73A of the Indian Evidence Act deals with proof as
to electronic or digital signature. These sections were added by Information
Technology (Amendment) Act. 2000. Section 67A provides that except in case of a
secure electronic signature, if the electronic signature of any subscriber is alleged
to have been affixed to an electronic record, the fact that such electronic signature
is that of the subscriber must be proved.

Proof as to verification of digital signature [Section 73A]

Section 73A provides that in order to ascertain whether a digital signature is that of
the person by whom it is purported to have been affixed, the court may direct:

(a) That person or the Controller or the Certifying Authority to produce the digital
signature certificate.

(b) Any other person to apply the public key listed in Digital Signature Certificate
and verify the signature so affixed.

Proof of execution of documents required by law to be attested

Section 68 of the Indian Evidence Act provides that when a document required by
law to be attested is produced in any judicial proceeding, it shall not be used as
evidence unless at least one of the attesting witnesses is called for the purpose of
proving its execution.

Attesting witness: An attesting witness is one who has seen the executants sign or
has received from the executants, an acknowledgment that the executants have
signed the deed. Further, the attesting witness must sign the deed in the presence of
the executants. There is no requirement that attesting witness should know the
content of the document.