TMI Blog2002 (12) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2. The factual background needs to be noted in detail: Plaintiff had two wives, 9 sons, 4 daughters and in addition, two predeceased daughter and son. The defendants 3 to 6 were sons through the first wife, while three sons and one daughter through the second wife were not parties to the suit. According to the plaintiff, Bovi Googa/Bingooba son of Munia was the original Barawardar, Thoti of Bommanahalli Village had service inam lands assigned to his hereditary office as an emolument in consideration of the services. Kaverappa, father of plaintiff-Lakshmaiah succeeded to hereditary office and also to the service inam lands and other properties belonging to his father by Govt. grant. He died in 1959, and plaintiff succeeded to the Village Office as well as to the properties. The suit Sy. No.3 measured 5 acres 4 guntas out of which suit schedule properties 1 acre 28 guntas, according to plaintiff was under the possession and enjoyment of the Hindu undivided family. The Mysore Village Offices Abolition Act, 1961 (in short the Act ) came into force w.e.f. 1.2.1963. It repealed the Mysore Village Offices Act, 1908 which provided for hereditary office. Under Section 4 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff and the defendants 3 to 8? 2. Whether the plaintiff proves that the sale deed dated 23.10.1972 executed by the 3rd defendant in favour of Chikka Kaverappa and others is in fact only a mortgate? 3. Whether the plaintiff proves that the said sale is hit by the provisions under the Karnataka Village Office Abolition Act, 1961 and therefore is void under law? 4. Whether the plaintiff proves his lawful possession over the suit property on the date of suit? 5. Whether the defendants 1 and 2 prove that the plaintiff is estopped from questioning the sale transaction under the sale deed for the reasons stated in para-7 of their written statement? 6. What order? On consideration of evidence brought on record, the trial court, inter alia, held that (1) the principles of estoppel were not applicable, (2) there was sale and no mortgage, (3) sale on behalf of defendant no. 4 to 6 was a nullity, various orders passed by the High Court in different proceedings and the Tribunal constituted under the Act were of no consequence as the plaintiff was not a party, plaintiff and his sons were in lawful possession, defendant nos. 1 and 2 and defendant nos. 7 to 9 were not examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having not been presented within the specified time after attaining majority. It was submitted that the suit was on behalf of joint family. Further, the conclusion that plaintiff was not entitled to specific relief under Section 34 of the Specific Relief Act, 1963 (in short Specific Relief Act ) he having not come to court with clean hands has no foundation or basis. The conclusion of the High Court to the effect that litigations by defendant no.3 were instituted as for himself, plaintiff and defendant nos. 4 to 6 is again based on surmises. High Court has lost sight of the fact that because of defendant no.3 s wayward conduct relationship with him had turned sour and practically there was no connection between the plaintiff and other members of his family and defendant no.3. The suit was filed by plaintiff and other members of the family. On re-grant the benefit enures to the entire family. Per contra, learned counsel for the respondents submitted that the factual position highlighted by the High Court clearly goes to show that there was a mischievous attempt to deprive the alienees of the legitimate rights. High Court has rightly came to the conclusion that plaintiff was est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s withdrawn from the proceedings. No definite material was placed before it to show as to what was done on the date when the petition had been heard and orders were pronounced. To meet the ends of justice, High Court quashed order passed by the Tribunal and directed further inquiry and further directed to render a decision in accordance with law. Undisputedly, the Tribunal re-heard the matter and held against the defendant No. 3. Attempts before the High Court did not bring any result. From the material on record it is clear that there was series of litigations to which reference has been made by the High Court where the contesting parties were defendant no.3 and defendant nos. 1 and 2. It would be hard to believe that plaintiff had no knowledge of the proceedings though he was living jointly with defendant no. 3 and his other children. No satisfactory explanation has been given by him in this regard. Some lands were sold by the plaintiff, which were contended to be for the benefit of the family. Same logic would apply to the land sold by the defendant no.3. In November, 1979 Tahsildar had initiated proceedings for resumption of land on the ground of alienation without permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, whether in reality it be true or not. Estoppel, or conclusion, as it is frequently called by the older authorities, may therefore be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. Halsbury, Vol. 13, para. 448. The rule on the subject is thus laid down by Lord Denman, in Pickard v. Sears, 6 Ad. E. 469 at p. 474: But the rule is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act to that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. The whole doctrine of estoppel of this kind, which is fictitious statement treated as true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel - estoppel by representation- which is founded upon reason and it is founded upon decision also. Per Jessel, M.R. in General Finance Co. v. Liberator, L.R. 10 Ch.D.15(20). See also in Simon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified (per Lord Wright in Canada Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Stemships Ltd. (1946) 3 W.W.R. 759 at p. 764). The essential factors giving rise to an estoppel are, I think- (a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made. (b) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation was made. (c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. In his illustrious book Law of Estoppel 6th Edition, Bigelow has noted as follows: Situations may arise, indeed, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and circuity of action. In another illustrious book Estoppels and the Substantive Law by Arthur Caspersz under title Conduct of Indifference or Acquiescence it has been noted as follows: 40. It is, however, with reference to the third class of cases that the greatest difficulty has arisen, especially where statements have been made, expressly or by implication, which cannot properly be characterized as representations at all. It must now be regarded as settled that an est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n every case, as already pointed out, the determining element is not the motive or the state of knowledge of the party estopped, but the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct. Lapse of time and delay are most material when the plaintiff, by his conduct may be regarded as waiving his rights, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted. When, however, an argument against a relief, otherwise just, is founded upon mere delay not amounting to bar by limitation, the validity of that defence must be tried by principles substantially equitable. In Snell s Principles of Equity, 27th Edition, Chapter 3, 12 Maxims of Equity have been indicated. Of these maxims principles 5, 6 and 7 are relevant for the purpose of the case in hand. They are as follows: x x x x 5. He who seeks equity must do equity. 6. He who comes into equity must come with clean hands. 7. Delay defeats equities, or, equity aids the vigilant and not the indolo Vigilantibus, non dormienti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow s alienation. They are (1) that which is embodied in S.115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction, and (3) ratification i.e. agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case. In Provash Chandra Dalui v. Biswanath Banerjee (AIR 1989 SC 1834), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. It cannot be doubted that there may be cases in which there is deception by omission, silence may be treated as deception only where there is a duty to speak; in other words as Biglow points out in his book Biglow on Fraud (Volume 1 at page 597), ground of liability arises wherever and only where silence can be considered as having an active properly that of misleading. In view of the factual conclusions arrived at by the High Court, which are perfectly in order, the appeals are bound to fail. The rule of estoppel has clear application, and in view of this finding it is not necessary to go into the question whether Explanation 6 of Section 11 C.P.C. has any application or not. The appeals are accordingly dismissed. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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