Full Judgment Text
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PETITIONER:
CHHAGANLAL KESHAVLAL MEHTA
Vs.
RESPONDENT:
PATEL NARANDAS HARIBHAI
DATE OF JUDGMENT11/12/1981
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1982 AIR 121 1982 SCR (2) 166
1982 SCC (1) 223 1981 SCALE (3)1861
ACT:
Suit for redemption of mortgage-order XXXIV Rule I
Civil Procedure Code-Right of a co-mortgagor to redeem his
own share, section 60 of the Transfer of Property Act scope
of-Abatement by death of parties-order XXlll Rule 2 Civil
Procedure Code.
Estoppel by canduct-Section 115 of the Evidence Act-
Difference between admission and estoppel explained.
HEADNOTE:
Motibhai created two mortgages in respect of the same
property in the years 1871 and 1893 in favour of one Nanaji
who died somewhere between 1 890 and 1912 leaving behind his
two sons Hari and Purushottam as his heirs and legal
representatives. They both sold the entire mortgagee rights
and interest to one Ganpatram on 4th July, 1912, who in his
turn sold the mortgagee rights in a part of the mortgaged
property, namely, common latrine to one Vamanrao. Ganpatram
died and his son Chhotalal sold away his rights as a
mortgagee in possession in respect of the rest of the
properties which still remained with him, to Chhaganlal
Keshavlal Mehta, the appellant-defendant No. 1.
Mortgagor Motibhai also died leaving behind his son
Chimanrai. Chimanrai died leaving behind his widow Chhotiba
and a daughter Taralaxmibai. On September 12, 1950
Taralaxmibai sold her right, title and interest in the suit
property to one Shantilal who later on conveyed his right,
title and interest in the property to the respondent-
plaintiff Narandas Haribhai Patel. During the life time of
Chimanrai, Ganpatram, the mortgagee had sent a notice,
Exhibit 77 dated 15th April, 1913 informing him that the
mortgaged property was in a dilapidated condition and
required repairs. He further called upon Chimanrai to pay
the amount already spent by him towards the repairs to get
further repairs done or in the alternative pay up the
mortgage amount and redeem the property. Chimanrai, denied
his responsibility. After the death of Chimanrai Chhotalal
gave a similar notices, Exhibits 68 and 78, dated 21st of
September, 1933 and 6th October 1933 to Taralaxmibai
daughter of Chimanrai and to Chhotiba, the widow to the same
effect. Both Chhotiba and Taralaxmibai denied their
liabilities. Narandas after the purchase of the mortgagor’s
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rights from Shantilal filed a suit for redemption impleading
both the assignees of the mortgagee’s rights, namely,
Chhaganlal Keshavlal Mehta, the appellant as defendant No. I
and Vamanrao as defendant No. 2. The suit was dismissed by
the trial court on the ground that the plaintiff had no
right to redeem In this view of the matter it was not
necessary to decide other issues but the trial court
recorded findings on other issues also including the issue
of estoppel. The appeal and the cross-objection filed by the
parties were
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allowed by the Assistant Judge holding that plaintiff had
purchased the equity of redemption and so he was entitled to
redeem and that the suit was not barred by estoppel. He
however remanded the case for deciding the remaining issues.
On remand the Joint Civil Judge held that Chimanrai, his
widow Chhotiba and his daughter Taralaxmibai relinquished
their right, title and interest in the suit property and,
therefore, Taralaxmibai had no subsisting interest or title
to transfer to the plaintiff or his predecessor in-interest.
He further held that the suit was barred by time and
estoppel, and that defendant No. 1 had spent a substantial
amount on repairs. On these findings the suit was dismissed
once again. During the pendency of the appeal by the
respondent, Vamanrao died in August, 1958. His heirs were,
however, not brought on the record. The appeal was allowed
as against defendant No. I but dismissed as abated against
defendant No. 2 and it was held that the respondent was
entitled to redeem the mortgaged property on payment of the
mortgaged money as well as the expenditure incurred on
repairs, and that the suit was neither barred by time nor by
estoppel. On further appeal to the High Court a learned
single Judge reversed the Judgment and decree of the lower
appellate Court and dismissed the suit. The respondent-
plaintiff took up the matter in the letters patent appeal
and the appellant-defendant No. 1 also filed a cross-
objection. A Division Bench of the High Court allowed the
appeal and decreed the suit reversing the finding of the
learned Single Judge that the respondent-plaintiff had no
right to sue. The Division Bench, however, granted a
certificate of fitness of appeal to the Supreme Court.
Dismissing the appeal, the Court
^
HELD: 1. Under section 60 of the Transfer of Property
Act, a co-mortgagor cannot be permitted to redeem his own
share of the mortgaged property only on payment of
proportionate part of the amount remaining due. In other
words, the integrity of the mortgage cannot be broken. [173
G]
2. It is, however, a well recognised principle that
even if all the mortgagees are not before the court in a
suit filed by the mortgagor for redemption of the property,
but the mortgagor is prepared to pay the entire amount due
at the foot of the mortgage to such mortgagees as are before
the court and gives up his right under the mortgage as
against those mortgagees who are not before the court, The
court can pass a decree for redemption directing that the
entire mortgage amount should be paid to the mortgagees who
are actually before the court. [174 D-F]
Motilal Yadav v. Samal Bechar (1930) 54 Bom. 625,
approved.
3:1. If one of the defendants in a suit dies and his
heirs are not brought on record, the suit certainly would
abate as against that party. The suit, however, G could not
abate as against the other surviving defendants. A question
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may arise whether the suit is maintainable against the
surviving defendants. In the instant case, the Suit abated
as against defendant No. 2 in respect of the common latrine.
But the suit may proceed against the surviving appellant-
defendant No. 1 if the respondent-plaintiff is prepared to
pay the entire mortgage consideration. [174 F-G]
3:2. A person may be a necessary party in a suit but he
may not be a necessary party in the appeal. [175 A]
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4:1. To bring the case within the scope of estoppel as
defined in section 115 of the Evidence Act: (i) there must
be a representation by a person or his authorised agent to
another in any form a declaration, act or omission; (ii) the
representation must have been of the existence of a fact and
not of promises de futuro or intention which might or might
not be enforceable in contract: (iii) the representation
must have been meant to be relied upon; (iv) there must have
been belief on the part of the other party in its truth; (v)
there must have been action on the faith of that
declaration, act or omission, that is lo say, the
declaration, act or omission must have actually caused
another to act on the faith of it, and to alter his former
position to his prejudice or detriment; (vi) the mis-
representation or conduct or omission must have been the
proximate cause of leading the other party to act to his
prejudice; (vii) the person claiming the benefit of an
estoppel must show that he was not aware of the true state
of things. If he was aware of the real state of affair or
had means of knowledge, there can be no estoppel; (viii)
only the person to whom representation was made or for whom
it was designed can avail himself of it. A person is
entitled to plead estoppel in his own individual character
and not as a representative of his assignee. [176 C-F]
4:2. The difference between an admission and estoppel
is a marked one. Admissions being declarations against an
interest are good evidence but they are not conclusive and a
party is always at liberty to withdraw admissions by proving
that they are either mistaken or untrue. But estoppel
creates an absolute bar. Estoppel deals with questions of
facts and not of rights. A man is not estopped from
asserting a right which he had said he would not assert It
is also a well-known principle that there can be no estoppel
against a statute. [175G, H- 176 B]
4:3. In the instant case (i) the ingredients of section
115 of the Evidence Act have not been fulfilled. No
representation was made to defendant No. 1, therefore,
estoppel cannot be pleaded; (ii) the representation was not
regarding a fact but regarding a right of which defendant
No. I or his predecessor in interest had full knowledge or
could have known if he had cared to know lt is difficult to
say that defendant No. ] has moved his position on account
of the representation made by The mortgagor or his heirs or
assignees, [176 G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1867 of
1970.
From the judgment and order dated the 18th February,
197() of the Gujarat High Court in Letters Patent Appeal No.
6/60.
S. S. Sheth, Ravinder Narain, J. B. Dadachanji, O.C.
Mathur and Mrs. Anjali K. Verma for the Appellant.
Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta
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for the Respondent.
The Judgment of the Court was delivered by
MISRA, J. The present appeal by certificate is directed
against the judgment of the High Court of Gujarat at
Ahmedabad in
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Letters Patent Appeal No. 6 of 1966 dated the 18th of
February, 1970 decreeing the suit for redemption.
The property in dispute, situated in Baroda City,
originally belonged to Motibhai Bapubhai Shibandi Baxi (for
short Motibhai). He created a mortgage with possession of
the disputed property in favour of one Nanaji Balwant
Pilkhanewala (for short Nanaji) in 1871 for a sum of Rs.
800. In 1890 a second mortgage was created in favour of the
same mortgage and the amount secured by this second mortgage
was Rs. 375. Somewhere between 1890 and 1912 the original
mortgagee Nanaji died leaving behind his two sons Hari and
Purshottam as his heirs and legal representatives. The two
sons of Nanaji sold the entire mortgagee rights and interest
to one Ganpatram Mugutram Vyas (for short Ganpatram) on 4th
of July, 1912. Ganpatram in his turn sold the mortgagee
rights in a part of the mortgaged property, viz., common
latrine, to one Vamanrao Laxmanrao Nirkhe (for short
Vamanrao).
Ganpatram died and his son Chhotelal Ganpatram (for
short Chhotelal) sold away his rights as a mortgagee in
possession in respect of the rest of the properties which
still remained with him, to Chhaganlal Keshavlal Mehta (for
short Chhaganlal Mehta.)
Mortgagor Motibhai. also died leaving behind his son
Chimanrai Motibhai Baxi (for short Chimanrai). Chimanrai
died leaving behind his widow Chhotiba and a daughter
Taralaxmibai. On September 12, 1950 Taralaxmi sold her
right, title and interest in the suit property to one
Shantilal Purshottamdas Dalia (for short Shantilal). Later
on Shantilal conveyed his right, title and interest in the
property to the plaintiff, Narandas Haribhai Patel (for
short Narandas).
It appears that during the life time of Chimanrai
Ganpatram the mortgagee had sent a notice, Ext. 77, dated
15th of April, 1913 to Chimanrai informing him that the
mortgaged property was in a dilapidated condition and
required repairs. He had already spent some amount towards
repairs but still substantial repairs were needed and the
same should be got done by him or he should pay the mortgage
amount and redeem the property. On receipt of this letter
Chimanrai made the following endorsement:
"During the lifetime of my father, I had become
separated from him without taking any kind of the
moveable or immovable property belonging to him and
even
170
after his death, I have not taken any kind of his
properties nor have I kept my right over the said
properties and so I am not in any way responsible for
your any transaction whatsoever in connection with his
properties. Be it known to you. And while giving you a
definite assurance to that effect I have made
attestation on the aforesaid document in respect of
purchase of the mortgagee’s rights, which may also be
known to you."
Long after the death of Chimanrai, Chhotelal, son of
Ganpatram, gave a similar notice, Ext. 28, dated 6th of
October, 1933 to Chhotiba, the widow of Chimanrai calling
upon her to Redeem the mortgage in question. On this notice
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similar endorsement on behalf of Chhotiba was made on 10th
of October, 1933 by Lomeshprasad Hariprasad Desai (for short
Lomeshprasad). her daughter’s son, as had been made by
Chimanrai earlier on the notice given by Ganpatram. Yet
another notice, Ext. 78 dated 21st of September, 1933 was
sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to
the same effect. In her reply, Ext. 73, dated 3rd of
October, 1933 to the notice, Taralaxmibai stated inter alia
that her father Chimanrai had foregone all rights whatsoever
in the property of his father, Motibhai, during his lifetime
and hence she had no concern with the property of Motibhai.
It was further stated that her own mother Chhotiba was alive
(in October 1933) and, Therefore, she had no concern
whatsoever with the property of Motibhai or the liabilities
arising out of the dealings of Motibhai.
Narandas after the purchase of the mortgagor’s rights
from Shantilal filed a suit for redemption impleading both
the assignees For the mortgagee’s rights, Chhaganlal
Keshavlal Mehta, as the 1st defendant, and Vamanrao
Laxmanrao Nirkhe, as the 2nd defendant.
The claim was resisted by. the 1st defendant on grounds
that the plaintiff had no right to redeem inasmuch as his
predecessor in interest, Chimanrai, his widow Chhotiba and
his daughter Taralaxmibai on their own admission had no
subsisting right, title and interest in the mortgaged
property. The plaintiff who is only a transferee from
Taralaxmibai could not rank higher, that Ganpatram, the
predecessor in interest of defendant No. 1 was not in
possession of the property as a mortgagee but as an absolute
owner thereof. The defendant No. 1, who claims through
Ganpatram’s son Chhotalal, was also an absolute owner and
continued to remain in possession from 1933-34 as such. As
an abso-
171
lute owner he carried out repairs to the mortgaged property.
He also obtained permission from the municipality and built
the house afresh after incurring heavy expenditure and in
doing so he had spent about Rs. 3374-2-0. He also denied
that Shantilal, purchaser of the equity of redemption was
the plaintiff’s benamidar. Indeed, the plaintiff had falsely
created the evidence of benamidar to bring the present suit,
and the suit was barred by limitation and estoppel. In the
alternative he pleaded that he should be paid the sum of Rs.
5099-2-0 if the plaintiff’s suit for redemption was to be
decreed.
The trial court came to the conclusion that the
plaintiff had no right to redeem the mortgaged property as
he had failed to prove that he had purchased the property
benami in the name of Shantilal and that afterwards
Shantilal had passed deed of conveyance or mutation in his
favour. In view of this finding it was not necessary for the
trial court to decide other issues but all the same the
trial court recorded findings on the remaining issues also
in order to complete the judgment. It found that Chimanrai,
Chhotiba or Taralaxmibai never relinquished their right,
title and interest in the suit property, that the suit was
within limitation, and that the suit was not barred by
estoppel. As regards the amount spent on repairs the court
came to the conclusion that the defendant No. I had spent
Rs. 3374-2-O and, therefore, if the plaintiff was to be
allowed to redeem the property he would have to pay that
amount in addition to the mortgage consideration. The suit
was dismissed by the trial court on the ground that the
plaintiff had no right to redeem.
Feeling aggrieved the plaintiff went up in appeal, and
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the defendant No. 1 filed a cross-objection against the
finding that went against him. The appeal and the cross-
objection were allowed by the Assistant Judge by his
judgment dated 31st of March, 1956 on the finding that the
plaintiff had purchased the equity of redemption benami in
the name of Shantilal and that Shantilal had executed a deed
of conveyance, Ext. 66, in favour of the plaintiff and,
therefore, he was entitled to redeem the property. He
further found that the endorsements made by Chimanrai, his
widow Chhotiba and his daughter Taralaxmibai did not amount
to relinquishment of their right, title and interest in the
property. He set aside the decree of the trial court and
remanded the case for deciding the remaining points after
allowing the parties to lead fresh evidence on those issues.
The defendant No. I challenged the remand order by
172
filing an appeal in the High Court. His complaint was
against the direction given by the appellate court while
remanding the case. The High Court allowed the appeal in
part and modified the direction of the lower appellate court
asking the trial court to decide other issues afresh after
allowing further evidence, except issues Nos. 1 and 4.
Consequent upon the order of remand the Joint Civil
Judge, Jr. Division, decided other issues against the
plaintiff. He held that Chimanrai, his widow Chhotiba and
his daughter Taralaxmibai had relinquished their right,
title and interest in the suit property and, therefore.
Taralaxmibai had no subsisting interest or title to transfer
to the plaintiff or his predecessor in interest. He further
held that the suit was barred by time and estoppel, and that
defendant No. I had spent a substantial amount on repairs.
On these findings he again dismissed the suit by his
judgment dated 21st of August, 1958.
The plaintiff again took up the matter in appeal,
It appears that during the pendency of the appeal
Vamanrao, defendant No. 2 died in August, 1958. His heirs
were, however, not brought on the record. A question arose
whether the appeal abated as a whole or only as against
defendant No. 2. The District Judge by his separate order
dated 25th of September, 1959 held that the appeal abated
only so far as defendant No. 2 was concerned but it could
proceed as against the surviving defendant No. 1.
The appeal was eventually allowed by the Assistant
Judge, Baroda against defendant No. 2 by his judgment dated
12th of November, 1959 holding that the appellant was
entitled to redeem the mortgaged property on payment of Rs.
4724-2.0 on account of the mortgage money as well as the
expenditure incurred by defendant No. 1 on repairs and that
the suit was neither barred by time nor by estoppel. The
appeal was, however, dismissed as against defendant No. 2.
The defendant No. 1 challenged the judgment and decree
of the Assistant Judge before the High Court and only two
contentions were raised before it: (1) that the mortgage
cannot be split up and must be treated as one and
indivisible security and since the right to redeem against
one of the two co-mortgagees had become extinguished because
of abatement of the suit against Vamanrao and his heirs, the
suit against defendant No. 1, the other co-mort-
173
gagee, must be dismissed; and (2) that the suit was barred
by estoppel inasmuch as Chimanrai, the heir of the original
mortgagor and after him his widow Chhotiba and daughter
Taralaxmibai having relinquished their right in the disputed
property which she could have conveyed to Shantilal by sale.
Consequently, Shantilal in his turn could not pass a better
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title to the plaintiff. In the result the plaintiff had no
right to file the suit for redemption. A learned Single
Judge who heard the appeal repelled the first contention but
accepted the second one. Accordingly, he allowed the appeal
and dismissed the plaintiff’s suit.
The plaintiff undaunted took up the matter in a Letters
Patent Appeal and the defendant also filed a cross-
objection. A Division Bench of the High Court allowed the
appeal and decreed the suit reversing the finding of the
learned Single Judge that the plaintiff had no right to sue.
The Division Bench, however, granted a certificate of
fitness for appeal to this Court. The learned counsel for
the appellant was raised the same two contentions before us.
We take up the first point first.
The first contention is based on the principle of
indivisibility of the mortgage. Section 60 of the Transfer
of Property Act deals with the rights and liabilities of a
mortgagor. It confers a right of redemption. There is,
however, a rider to the right of redemption in the section
itself, which provides :
"Nothing in this section shall entitle a person
interested in a share only of the mortgaged property to
redeem his own share only, on payment of a
proportionate part of the amount remaining due on the
mortgage, except only where a mortgagee or, if there
are more mortgagees than one, all such mortgagees, has
or have acquired, in whole or in part, the share of a
mortgagor."
A perusal of this provision indicates that a co-mortgagor
cannot be permitted to redeem his own share of the mortgaged
property only on payment of proportionate part of the amount
remaining due. In other words the integrity of the mortgage
cannot be broken. Order 34, rule I of the Code of Civil
Procedure deals with the parties to suits for foreclosure,
sale and redemption. It provides:
"Subject to the provisions of this Code, all
persons having an interest either in the mortgage-
security or in the
174
right of redemption shall be joined as parties to any
suit relating to the mortgage."
It has already been pointed out that defendant No. 2
was the purchaser of mortgagee rights in respect of common
latrine while defendant No. I is the purchaser of the
mortgagee rights in respect of the remaining mortgaged
property, viz., the houses. When the plaintiff filed the
suit he impleaded both the mortgagees as defendants Nos. 1
and 2. Before the Assistant Judge a statement was made on
behalf of the original plaintiff that he was prepared to pay
the entire mortgage amount for redemption of the mortgaged
property to the 1st defendant. A similar statement was made
by Mr. Oza, counsel for the plaintiff in the High Court who
further stated that in no event hereafter would the
plaintiff seek any relief against the property in possession
of defendant No. 2, viz., the right to the common latrine in
which mortgagee rights had been transferred to defendant No.
2 by Ganpatram. Besides, the severance of the two properties
by Ganpatram was recognised by the mortgagor and hence the
severance was with the implied consent of the mortgagor. It
is a well recognised principle that even if all the
mortgagees are not before the court in a suit filed by the
mortgagor for redemption of the property, but the mortgagor
is prepared to pay the entire amount due at the foot of the
mortgage to such mortgagees as are before the court and
gives up his right under the mortgage as against those
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mortgagees who are not before the court, the court can pass
a decree for redemption directing that the entire mortgage
amount should be paid to the mortgagees who are actually
before the court. This principle was recognised in a Full
Bench decision in Motilal Yadav v Samal Bechar.(1) If one of
the defendants in a suit dies and his heirs are not brought
on record the suit certainly would abate as against that
party. The suit, however, could not abate as against the
other surviving defendants. A question may arise whether the
suit is maintainable against the surviving defendants. In
the instant case the suit abated as against defendant No. 2
in respect of the common latrine. But there is no difficulty
in the suit proceeding against the surviving defendant No. 1
if the plaintiff is prepared to pay the entire mortgage
consideration.
It may, however, be pointed out that defendant No. 2
never contested the suit. He was impleaded as a party it was
incumbent on the plaintiff to have impleaded all the
mortgagees as a party. But if the defendant did not contest
the suit at any stage,
175
will he be a necessary party in an appeal ? A person may be
A a necessary party in a suit but he ’may not be a necessary
party in the appeal. The Division Bench of the High Court
was fully justified in holding that the suit against the
surviving defendant No. I was maintainable despite the
abatement of the suit against the 2nd defendant. We fully
endorse the view taken by the Division Bench of the High
Court.
This takes us to the second point. This contention is
based on the aforesaid various endorsements made by
Chimanrai. his widow Chhotiba and his daughter Taralaxmibai
on the notices sent by the mortgagee. The question is
whether these endorsements amount to relinquishment of their
rights and interest so as to estop them from transferring
the property in suit ? The notice by Ganpatram to Chimanrai
and the notices by his son Chhotalal to Chhotiba and
Taralaxmibai and their respective endorsements thereon have
been referred to in the earlier part of the judgment.
Whether these endorsements amount to relinquishment of their
rights and title and if so whether the same amounts to
estoppel within the meaning of section 115 of the Evidence
Act ? In our opinion the endorsements have to be read not in
isolation but with reference to the notices sent. So read,
the endorsement only indicate that the heirs of the
mortgagor were not prepared to bear the expenses on repairs
of the mortgaged property. The property cannot remain in
vacuum even for a single moment. It must vest in somebody.
Accordingly, after the death of Motibhai his property vested
in his son who was the sole heir. The endorsement of
Chimanrai, his widow Chhotiba and daughter Taralaxmibai on
the notices at the most would amount to an admission. The
contention raised on behalf of the defendant-appellant is
that he would not have purchased the mortgagee rights from
Ganpatram if such a statement had not been made by
Chimanrai, his widow Chhotiba and his daughter Taralaxmibai
and, therefore, they would be estopped from taking up a
different stand from the one taken by them earlier. In
substance, the question is whether the endorsements would
amount to estoppel.
The difference between admission and estoppel is a
marked one. Admissions being declarations against an
interest are good evidence but they are not conclusive and a
party is always at liberty to withdraw admissions by proving
that they are either mistaken or untrue. But estoppel
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creates an absolute bar. In this state of
176
the legal position, if the endorsement made by Chimanrai or
by his widow, Chhotiba or his daughter Taralaxmibai amounts
to an estoppel they or their transferees would be prevented
from claiming the property.
It may be pointed out that estoppel deals with
questions of facts and not of rights. A man is not estopped
from asserting a right which he had said that he will not
assert. It is also a well-known principle that there can be
no estoppel against a statute. After the death of Motibhai
his son Chimanrai succeeded in law.
To bring the case within the scope of estoppel as
defined in section ] I 5 of the Evidence Act: t I ) there
must be a representation by a person or his authorised agent
to another in any form a declaration, act or omission; (2)
the representation must have been of the existence of a fact
and not of promises de futuro or intention which might or
might not be enforceable in contract; (3) the representation
must have been meant to be relied upon; (4) there must have
been belief on the part of the other party in its truth; (5)
there must have been action on the faith of that
declaration, act or omission, that is to say, the
declaration, act or omission must have actually caused
another to act on the faith of it, and to alter his former
position to his prejudice or detriment; (6) the
misrepresentation or conduct or omission must have been the
proximate cause of leading the other party to act to his
prejudice; (7) the person claiming the benefit of an
estoppel must show that he was not aware of the true state
of things. If he was aware of the real state of affairs or
had means of knowledge, there can be no estoppel; (8) only
the person to whom representation was made or for whom it
was designed can avail himself of it. A person is entitled
to plead estoppel in his own individual character and not as
a representative of his assignee.
None of these conditions have been satisfied in the
instant case, for example, no representation was made to
defendant No. 1. Therefore, he cannot plead estoppel.
Secondly, the representation was not regarding a fact but
regarding a right of which defendant No. I or his
predecessor in interest had full knowledge or could have
known if he had cared to know. It is difficult to say that
defendant No. I has moved his position on account of the
representation made by the mortgagor or his heirs or
assignees. On the facts and circumstances of this case it is
not possible to hold that
177
ingredients of section 115 of the Evidence Act have been
fulfilled. The view taken by the Division Bench of the High
Court is fully warranted by law.
For the foregoing discussion we find no force in this
appeal. It is accordingly dismissed with costs.
S.R. Appeal dismissed.
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