Estoppel vs Acquiescence under the Bharatiya Sakshya Adhiniyam, 2023

Acquiescence is the equitable cousin of estoppel and is the harder of the two to pin down, because the word is used in two quite different senses. In one it is nothing but estoppel by silence under another name — standing by while another acts on a mistake. In the other it is a species of delay, closer to laches, and it operates not by preventing a party from saying something but by persuading a court not to help him. Keeping the two senses apart is most of what there is to know.

1. The Two Senses of Acquiescence

The word has been used by courts to describe two distinct situations, and the distinction governs everything that follows.

2. Acquiescence as Estoppel — The Five Probanda

Where acquiescence operates to preclude the assertion of a right, the classical statement of what must be established comes from the English Chancery and is applied in India.

The third and fourth elements carry the weight. What converts mere silence into acquiescence is double knowledge: the owner must have known that he had the right, and must have known that the other was acting under a mistaken belief about it. Without both, standing by is not encouragement — it is ignorance, and ignorance founds nothing.

The fifth element is where acquiescence and estoppel by silence meet. The defendant must have encouraged the plaintiff 'either directly or by abstaining from asserting his legal right' — which is exactly what Section 121 captures by the word 'omission'.

The words 'caused or permitted' are the statutory home of acquiescence in this sense. A person who permits a belief to be formed and acted upon is within the section as fully as one who causes it, and the five probanda are, in substance, the conditions under which permitting becomes culpable.

3. Acquiescence as Delay

In its second sense acquiescence is not about what the other party believed at all. It is about the effect of delay on the availability of a discretionary remedy.

Equity assists the vigilant and not those who sleep on their rights. Where a person knows that his right is being infringed and takes no step for a substantial period, a court may refuse him the equitable relief he seeks — an injunction, specific performance, rescission — even though his right survives and an action for damages may still lie.

Two propositions in that formulation are worth drawing out, because they are frequently misstated.

Acquiescence implies positive acts, not mere inaction. This distinguishes it from laches. A party who simply delays is guilty of laches; a party whose conduct over the period conveys assent has acquiesced. The distinction matters because mere delay, without more, is a weaker answer than acquiescence.

Where it amounts to consent, it is a complete defence. At its strongest, acquiescence is not merely a reason to withhold discretionary relief — it operates as consent to the act complained of, and the claim fails altogether.

4. The Comparison

5. Acquiescence, Laches and Limitation

Three doctrines address the consequences of delay and they are distinct.

A party pleading delay should identify which he relies upon. Limitation is a matter of computation and needs no evidence of prejudice. Laches requires the delay to be shown to be unreasonable in the circumstances and ordinarily requires prejudice. Acquiescence requires conduct going beyond inaction, and at its strongest amounts to consent.

A suit brought within limitation may still fail for laches where discretionary relief is sought, and may fail entirely where acquiescence amounts to consent. The converse is not true: a suit barred by limitation is barred however diligent the party was in other respects.

6. Where Acquiescence Is Most Used

Four fields account for most of the litigation.

Intellectual property. The paradigm case, and the source of most of the authority. A proprietor who knows his mark is being used and stands by while the other builds a business may be met with acquiescence, and Power Control Appliances is the leading Indian statement. The doctrine sits alongside the statutory provisions on acquiescence in the trade marks legislation.

Property and encroachment. Where an owner watches a neighbour build on his land and says nothing, the five probanda in Willmott v. Barber are directly in point, and the resulting equity may preclude the owner from obtaining a mandatory injunction to pull the structure down.

Service and employment matters. A person who accepts a seniority position, a scale of pay or a transfer without objection for years may be met with acquiescence when he later challenges it — subject always to the rule that acquiescence cannot confer what a statute or a rule withholds.

Company and partnership disputes. Where a member or partner knows of an irregularity and participates without objection, acquiescence may bar him from complaining of it later.

7. The Limits

Acquiescence is subject to the same limitations as estoppel, and to one of its own.

No acquiescence against a statute. Conduct cannot validate what a statute makes void, cannot confer jurisdiction a court does not possess, and cannot displace a provision founded on public policy. The reasoning is the same as for estoppel and for waiver: parties cannot by their own conduct set aside what the legislature enacted for the general good.

Knowledge is indispensable. The third and fourth probanda in Willmott v. Barber require the owner to have known of his own right and of the other's mistake. A person who stood by in ignorance has not acquiesced, and evidence of knowledge is what the plea stands or falls upon.

Acquiescence in a continuing wrong is limited. Where the infringement is continuing rather than complete, acquiescence in what has happened does not license what is still to come. A party may be refused relief in respect of what he permitted while retaining the right to object to further acts.

It is not a licence to fraud. Where the party asserting acquiescence acted knowing that he had no right, or concealed the facts, equity will not assist him. The doctrine protects a person who acted honestly under a mistake, not one who proceeded knowing the position.

8. Pleading and Proof

Because acquiescence covers two situations, the pleading should make clear which is relied upon and should set out the corresponding matters.

8.1 Acquiescence as estoppel

1. The mistake the other party made as to his rights.
2. What he did on the faith of it — expenditure, construction, the building of a business, the alteration of his position.
3. That the party now asserting the right knew of his own right at the material time.
4. That he knew of the other's mistaken belief.
5. That he encouraged the other, directly or by abstaining from asserting his right.

8.2 Acquiescence as delay

1. When the party came to know of the act complained of.
2. The period of inaction, and what he did or failed to do in it.
3. The positive conduct conveying assent — dealings, acceptance of benefits, participation — since mere inaction is laches rather than acquiescence.
4. The prejudice caused by the delay — what was built, spent or established in the interval.
5. That the relief sought is discretionary, since acquiescence in this sense operates on the remedy.

9. The Position Stated Shortly

1. Acquiescence is used in two senses — standing by while another acts under a mistake, and delay in asserting a right after the act.
2. In the first sense it is estoppel by silence, and Section 121 captures it through the words 'caused or permitted' and 'omission'.
3. The five probanda in Willmott v. Barber state what must be established, and the third and fourth — double knowledge — carry the weight.
4. In the second sense it is a species of delay, operating on the availability of discretionary relief rather than on the right.
5. Acquiescence implies positive acts, not mere inaction — Power Control Appliances — which is what distinguishes it from laches.
6. Where it amounts to consent, it is a complete defence.
7. Estoppel operates as a rule; acquiescence in its second sense is discretionary.
8. There is no acquiescence against a statute, and none can confer jurisdiction a court does not possess.

10. Related Topics and Provisions