Estoppel under Sections 121 to 123 of the Bharatiya Sakshya Adhiniyam, 2023

Estoppel is the rule that a person who has induced another to act on a state of affairs may not afterwards deny that state of affairs to the other's prejudice. It is not a cause of action and it is not a rule about what is true; it is a rule about what a particular party may be heard to say, against a particular person, in a particular proceeding. Three sections of the Adhiniyam contain it, and a substantial body of judge-made doctrine has grown around them.

1. Section 121 — The General Rule

Section 121, BSA — 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 representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration. — 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.

Section 121 corresponds to Section 115 of the Indian Evidence Act and is carried forward unchanged.

The doctrine descends from the English common law and from the decision in Pickard v. Sears, (1837) 6 Ad & E 469, where it was laid down that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time.

2. The Essential Ingredients

Five elements must be established, and the failure of any one defeats the plea.

Ingredient	What it requires
A representation	A declaration, act or omission by the person to be estopped. It may be express or implied, in words or by conduct
As to an existing fact	The representation must be as to a fact, and ordinarily an existing fact. A representation of intention as to the future is the province of promissory estoppel, not of Section 121
Intentionally caused or permitted a belief	The representation must have been made intentionally, in the sense that the maker intended it to be acted upon or so conducted himself that a reasonable person would act on it
Actual belief and action upon it	The other person must have believed the representation and acted upon that belief. A representation nobody believed, or nobody acted on, founds no estoppel
Between the same parties	The estoppel operates 'in any suit or proceeding between himself and such person or his representative' — it is confined to those parties and their representatives

A sixth element is not stated in the section but is settled in the decisions: the person relying on the estoppel must have altered his position to his detriment. An estoppel exists to prevent an injustice, and where no prejudice has been suffered there is nothing to prevent.

⚠ Estoppel is a shield, not a sword

The maxim is a useful shorthand and is broadly accurate for Section 121. Estoppel prevents a party from denying something; it does not by itself create a right of action. A plaintiff cannot sue on an estoppel alone — he must have a cause of action, and the estoppel prevents the defendant from raising a particular answer to it. Promissory estoppel has strained this proposition in some jurisdictions, and the Indian position on that doctrine is examined below.

3. Kinds of Estoppel

The classification is judge-made and the categories overlap. What follows is the arrangement that is most useful in practice.

Kind	Basis	Where it is found
Estoppel by record	A judgment of a court	Sections 34 to 38; and res judicata under Section 11 of the Code of Civil Procedure, 1908
Estoppel by deed	A statement in a deed executed by the party	The general law; and Sections 94 to 103 on exclusion of oral evidence
Estoppel by conduct	A declaration, act or omission inducing a belief acted upon	Section 121
Estoppel by representation	A representation of existing fact	Section 121 — the core case
Estoppel by silence or acquiescence	A failure to speak where there was a duty to speak	Section 121, through the word 'omission'
Estoppel by negligence	Negligence in the discharge of a duty owed, enabling a third party to be misled	The general law
Promissory estoppel	A promise as to future conduct, acted upon	Judge-made; not Section 121
Tenant and licensee estoppel	The relationship itself	Sections 122 and 123

4. Estoppel by Representation and by Conduct

These are the core cases under Section 121 and the distinction between them is one of form rather than of principle.

Estoppel by representation arises from a statement — a person says that a thing is so, another believes it and acts on it. The illustration to Section 121 is of this kind: A tells B the land is his, B buys and pays, and A may not afterwards prove his want of title.

Estoppel by conduct arises without words. A person behaves in a way that conveys a state of affairs, another relies on the behaviour, and the first is bound. Standing by while another builds on one's land, accepting rent as landlord, dealing with goods as owner, allowing a person to be held out as an agent — each is conduct from which a representation is implied.

📖 B.L. Sreedhar v. K.M. Munireddi, (2003) 2 SCC 355

Held: Estoppel is a rule of evidence and not a cause of action. The doctrine rests on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it.

For an estoppel to arise there must be a representation of an existing fact, it must have been acted upon, and the party setting up the estoppel must have altered his position to his detriment.

Ratio: Estoppel is a rule of evidence resting on equity, and requires representation, reliance and detriment.

5. Estoppel by Silence

Section 121 extends to an omission, and this is the statutory basis of estoppel by silence. But silence is not by itself a representation, and the doctrine operates within a narrow limit.

What is required is a duty to speak. Mere silence, where there was no obligation to disclose, founds no estoppel — a person is not bound to correct every mistaken belief he happens to notice.

The circumstances in which a duty to speak has been held to arise are recognisable.

Where the silent party knows that the other is acting on a mistaken belief which he could correct, and stands by while the other alters his position.
Where the parties are in a relationship of confidence or of contract requiring disclosure.
Where a statute or a rule imposes a duty to disclose, and the silence is a breach of it.
Where the silent party has himself created the situation in which the other is likely to be misled.

Estoppel by silence shades into acquiescence, which is dealt with separately below. The distinction is that estoppel by silence concerns a failure to speak at the moment the other was acting; acquiescence concerns a failure to object over a period after the act.

6. Promissory Estoppel

Section 121 speaks of a representation as to a fact. A promise as to future conduct is not a representation of fact, and promissory estoppel is therefore not a creature of the section at all — it is an equitable doctrine developed by the courts.

📖 Central London Property Trust Ltd. v. High Trees House Ltd., [1947] KB 130

Held: Where a promise is made which is intended to create legal relations and which, to the knowledge of the person making it, is going to be acted upon by the person to whom it is made, and it is in fact so acted upon, the promise is binding so far as its terms properly apply, notwithstanding the absence of consideration.

Ratio: The origin of the modern doctrine. A promise intended to be acted upon, and acted upon, may be enforced despite the absence of consideration.

The doctrine was received into Indian law and applied with particular force against the State.

📖 Union of India v. Indo-Afghan Agencies Ltd., AIR 1968 SC 718

Held: The Government is not exempt from the equity arising out of a promise made by it. Where the Government makes a representation within the scope of its authority and a person acts upon that representation and alters his position, the Government is bound to carry out the promise, even though the promise is not recorded in the form required by Article 299 of the Constitution and even though there is no consideration.

Ratio: Promissory estoppel operates against the Government, and the absence of a formal contract is no answer.

📖 Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, (1979) 2 SCC 409

Held: The doctrine of promissory estoppel is not limited to cases where the party has suffered detriment in the strict sense; it is enough that he has altered his position on the faith of the promise. The doctrine may found a cause of action and is not confined to a defence, and it is not necessary that the promisee should have suffered any prejudice in the sense of detriment.

The doctrine applies against the Government in the exercise of its governmental, public or executive functions, and the plea of executive necessity is not by itself an answer. The Government may, however, resist the claim where it can show that in view of the facts as they have transpired, it would be inequitable to hold it to the promise, and it must place before the court the material on which that is founded.

Ratio: The fullest Indian statement. Alteration of position suffices; the doctrine may found a cause of action; it binds the Government; and the Government escapes only by establishing that equity requires it.

	Estoppel under Section 121	Promissory estoppel
Source	Statutory — Section 121	Judge-made equity
Subject of the representation	An existing fact	A promise as to future conduct
Consideration	Not in issue	Not required — this is the point of the doctrine
Detriment	Required	Alteration of position suffices — Motilal Padampat
Cause of action	A shield only	May found a cause of action in India
Against the Government	Operates on ordinary principles	Operates, subject to the Government showing that equity requires otherwise

7. Section 122 — Tenant and Licensee

Section 122, BSA — Estoppel of tenant and of licensee of person in possession

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

Section 122 corresponds to Section 116 of the Indian Evidence Act. It contains two distinct estoppels resting on the same idea: a person who obtained possession from another cannot turn round and dispute the title on which he obtained it.

7.1 The tenant estoppel

Four features define its scope, and each is a real limitation.

It binds the tenant and those claiming through him — a sub-tenant, an assignee, a legal representative.
It operates during the continuance of the tenancy. Once the tenancy has ended and possession has been surrendered, the estoppel goes with it.
It relates to the title at the beginning of the tenancy. The tenant may not deny that the landlord had title then.
It does not prevent the tenant from showing that the landlord's title has since come to an end — by transfer, by determination, or by a superior title having taken effect. That is not a denial of the title at the beginning.

⚠ The estoppel is about the beginning of the tenancy, not about the present

This is the distinction that decides most cases under the section. A tenant sued for possession may not say that the landlord never had title. He may say that the landlord's title has since determined, that the property has been transferred, or that he has himself acquired a superior title — because none of those denies the title as it stood when the tenancy began. Pleadings in such cases should be framed with the distinction in mind, and an objection under Section 122 should be tested against it.

7.2 The licensee estoppel

The second limb applies to a person who came upon immovable property by the licence of the person in possession. He may not deny that the licensor had title to that possession at the time the licence was given.

Two points of difference from the tenant estoppel are worth noting. It refers to title to the possession, not to the property, which is a lower threshold — the licensor need only have been lawfully in possession. And the section does not contain the words 'during the continuance' in relation to the licensee, though the same reasoning ordinarily applies.

8. Section 123 — Acceptor, Bailee and Licensee

Section 123, BSA — Estoppel of acceptor of bill of exchange, bailee or licensee

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.

Explanation 1. — The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation 2. — If a bailee delivers the goods to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Section 123 corresponds to Section 117 of the Indian Evidence Act and contains three estoppels together with two important qualifications.

8.1 The acceptor of a bill

An acceptor may not deny that the drawer had authority to draw or endorse. The commercial rationale is plain: a bill circulates on the faith of the acceptance, and a holder who takes it is entitled to assume that the acceptor has satisfied himself about the drawer.

Explanation 1 is the limit and it is a substantial one. The acceptor may deny that the bill was really drawn by the person by whom it purports to have been drawn — that is, he may set up forgery. He is estopped as to the drawer's authority, not as to the genuineness of the signature.

8.2 The bailee and the licensee

A bailee may not deny that the bailor had authority to make the bailment; a licensee may not deny that the licensor had authority to grant the licence. In each case the estoppel relates to the position at the time the relationship commenced.

Explanation 2 supplies the necessary escape for a bailee. If he delivers the goods to somebody other than the bailor, he may prove that that person had a right to them as against the bailor. Without this, a bailee would be trapped between a bailor with no title and a true owner demanding his goods.

9. No Estoppel Against a Statute

This is the most important limitation on the whole doctrine and is applied constantly.

There can be no estoppel against a statute. Where the law requires something to be done in a particular way, or prohibits something, or confers a status or a right by operation of law, no representation by a party and no conduct of his can displace it.

The reasons are two. A statute represents the will of the legislature, and parties cannot by their conduct dispense with what it enacts. And estoppel is a rule of evidence — it prevents a party from proving a fact — whereas a statutory requirement operates whether or not anybody proves anything.

The rule produces a number of familiar applications.

A party cannot be estopped from pleading that a contract was void for want of a statutory formality, or for illegality.
A person cannot confer jurisdiction on a court by consent, by representation or by acquiescence where the statute does not confer it — and cannot be estopped from taking the objection.
A party cannot be estopped from asserting a right conferred by statute for the protection of a class to which he belongs, where the statute does not permit it to be waived.
An authority cannot be estopped from performing a statutory duty, or from correcting an act done without statutory power.

📖 Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613

Held: A question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. Where the decision is on a pure question of law relating to jurisdiction, or where by such a decision the court assumes a jurisdiction it does not possess, the decision does not operate as res judicata between the same parties in a subsequent proceeding.

A decision on an issue of law will not operate as res judicata where the cause of action is different, or where the law has since been altered by a competent authority, or where the decision relates to the jurisdiction of the court to try the earlier proceeding.

Ratio: Jurisdiction cannot be created by an erroneous decision, and by extension cannot be created by the conduct or consent of the parties.

⚠ The limit of the rule

'No estoppel against a statute' is not a licence to disregard representations whenever a statute is in the vicinity. The rule applies where the estoppel would defeat a statutory provision or confer a power the statute withholds. It does not apply merely because the subject-matter is regulated by a statute, and it does not prevent an estoppel operating on a question of fact arising within a statutory framework. Where the argument is run, the first question is always which statutory provision the estoppel would defeat.

10. Estoppel Distinguished

	Estoppel	Waiver	Acquiescence	Admission
Source	Sections 121 to 123	The general law	Equity	Sections 15 to 21; Section 53
Basis	A representation relied upon	The intentional relinquishment of a known right	Standing by without objection while another acts	A statement suggesting an inference as to a fact
Knowledge required	Not necessarily of the true position	Knowledge of the right waived is essential	Knowledge of the act and of one's own right	Not required
Reliance by the other	Essential	Not essential	Ordinarily present	Not required
Effect	The party may not deny the fact	The right cannot be asserted	Relief may be refused on equitable grounds	Evidence of the fact, rebuttable — or, if judicial, dispensing with proof
Rebuttable	No, once established	No, once established	A matter of discretion	Yes, if evidentiary

The distinction from admission is the one most often needed and is worth stating separately.

📖 Nagindas Ramdas v. Dalpatram Ichharam alias Brijram, (1974) 1 SCC 242

Held: Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions stand on a higher footing than evidentiary admissions; the former are fully binding on the party that makes them and constitute a waiver of proof, and may by themselves be made the foundation of the rights of the parties. Evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong.

Ratio: An admission is evidence of a fact and is ordinarily rebuttable; an estoppel prevents the party from denying the fact at all.

The practical difference is this. An admission is a piece of evidence about what is true, and the maker may show that it was mistaken. An estoppel says nothing about what is true — it says that this party, against this person, may not be heard to deny it. A party may be estopped from denying a fact which everybody knows to be false, and the estoppel operates precisely because the other person relied on the falsehood.

11. Practical Points

Plead the estoppel specifically, identifying the representation, the reliance and the alteration of position. An estoppel not pleaded will ordinarily not be entertained.
Identify what the representation was as to. A representation of existing fact goes to Section 121; a promise as to the future goes to promissory estoppel.
Establish reliance and alteration of position by evidence. These are facts, and a plea that asserts them without proving them fails.
Check the parties. Section 121 operates only between the representor and the person who relied, and their representatives.
Under Section 122, frame the denial carefully. A tenant may not deny title at the beginning of the tenancy but may show that it has since determined.
Under Section 123, remember Explanation 1. An acceptor may always set up forgery, though he may not deny the drawer's authority.
Test any estoppel against the statute. If it would defeat a statutory provision or confer a power the statute withholds, it fails.

12. The Position Stated Shortly

Estoppel is a rule of evidence, not a cause of action, and it operates between particular parties in a particular proceeding.
Five ingredients — a representation by declaration, act or omission; as to an existing fact; intentionally causing a belief; belief and action upon it; between the same parties — together with alteration of position.
Estoppel by silence requires a duty to speak, and mere silence founds no estoppel.
Promissory estoppel is not Section 121. It is judge-made equity, requires no consideration, and in India may found a cause of action — Motilal Padampat.
It operates against the Government, which escapes only by showing that equity requires otherwise — Indo-Afghan Agencies and Motilal Padampat.
Section 122 estops a tenant from denying title at the beginning of the tenancy, but not from showing that it has since determined.
Section 123 estops an acceptor as to the drawer's authority, but Explanation 1 preserves the defence of forgery.
There is no estoppel against a statute, and none can confer jurisdiction a court does not possess.

13. Related Topics and Provisions

Topic or provision	Connection
Estoppel vs Res Judicata	The distinction between estoppel by conduct and estoppel by record
Admission and Estoppel	Sections 15 to 21 and Section 25, and why an admission is not an estoppel
Admissions in Pleadings and Proof	Section 53 and judicial admissions
Res Judicata and Relevancy of Judgments	Section 34 and Section 11 of the Code of Civil Procedure, 1908
Exclusion of Oral Evidence by Documentary Evidence	Sections 94 to 103, and estoppel by deed
Evidentiary Value of Admissions	The rebuttable character of an admission, contrasted with estoppel
Sections 121 to 123, BSA	The three statutory estoppels