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[Supreme Court (A J & K)]
Present: Raja Muhammad Khurshid Khan, CJ. and
Abdul Majeed Mallick J
MUHAMMAD AFSAR Appellant
versus
MUHAMMAD SHARIF and 8 others Respondents
Civil Appeal No.21/Mirpur of 1988, decided on 19th June, 1989.
(On appeal from the judgment and decree of the High Court dated 18 4 1986 announced on 27 4 1986 in Civil Appeal No.39 of 1985).
S.115 Estoppel Sale deed Attesting witness denying his thumb impression on the document Heavy burden lay on vendee to prove that document bore witness"s thumb impression; which could be done in a convincing way by examining an expert Mere attestation of sale deed in no way would create estoppel for witness to challenge said deed if the same was otherwise a defective one.
S.115 Estoppel Attestation of a deed by itself would not estop a person to challenge the validity of the sale deed except that he would not be allowed to deny that he witnessed the execution of the deed Attestation of a document as a witness would not mean that such a person had consented to the transaction which the document effected or admitted the contents of the document as correct or made any representation on the basis . of which other person changed his position or acted upon it.
Bhagwan Singh v. Ujagar Singh AIR 1928 PC 20 ref.
S.115 Estoppel Doctrine, when applicable.
The law of estoppel would only be applicable when it is proved that another person by a representation made or by conduct, amounting to representation, has been induced to believe an act to be true and on that belief acted upon it and in the absence of such a representation such a person would not have believed so. In such circumstances and not otherwise the person who made the representation would not be allowed to deny or repudiate the effect of his statement or his former conduct.
S.115 Creation of estoppel Requirements.
What is enacted in section 115 of the Evidence Act, 1872 is the rule of evidence by which a person is not allowed to plead contrary to a fact or a state of thing which he formerly asserted as existing and made the other party to believe it as such and then acted on it on such belief. The rule, at times, is viewed as a substantive rule of law and comes into play whenever a person causes another to believe a thing to be true and act upon such belief and alter his position. It follows that to create estoppel there must be firstly; a representation or an existing fact as distinct from a mere promise de futuro made by one party to the other; and secondly, the other party believing it, must have been induced to act on the faith of it; and thirdly, the party must have so acted to his detriment. Therefore, to rely on doctrine of estoppel, the Court is to be satisfied that a person has caused the other person to believe a state of fact to be true and the other person, it must be established not only believed it so but have also acted on it to his prejudice. All these requirements must co exist to attract the doctrine of estoppel. Therefore, where the opposite party has not acted to his detriment on the basis of any representation, estoppel can neither be created nor pleaded. In other words to constitute an estoppel, the following elements must be present:
(i) a representation or concealment of material facts;
(ii) such representation must have been made with the knowledge of real facts;
(iii) the party to whom it was made must have been ignorant of the matter;
(iv) the intention of the person making the representation was that the other party should act upon it;
(v) the other party was thereby induced to act upon it; and
(vi) he did so to his detriment. [p. 1857] E
(e) Evidence Act (I of 1872)
S.115 Estoppel deals with question of fact and not with the question of right No general rule exists that a man is estopped from asserting the right which he has said that he will not assert When a person agrees not to assert a right, in some circumstances, he may be bound by his agreement, but that would be a different matter and it would be based on the contract of relinquishment of one"s rights and not on estoppel..
Qutab ud Din v. Muhammad SidWique PLD 1969 Lah. 418 ref.
S.115 Estoppel Object Principle is based on equity and good conscience and the object is to prevent fraud and secure, justice between parties by promoting honesty, good faith and preventing the parties from approbating and reprobating at the same time.
R.S. Maddanappa v. Chandram is AIR 1965 SC 1812 ref.
S.115 Estoppcl Pleading Estopel ought to be pleaded with sufficient clarity, there should be distinct pleadings stating the facts on which estoppel is founded Party cannot be permitted to resort tot the plea of estoppel without definite allegation Court will refuse to go into the matter if question of estoppel is not raised with clarity.
Shaikh Abdul Rahim v. Mst. Barira AIR 1921 Pat. 166 (2); Chandi Charan Nath v. Samala Bibi AIR 1918 Cal. 917; Kanhayalalal Pyarelal v. Bhaiyalal Kishorelal AIR 1934 Nag.51; Associated Publishers (Mad.) Ltd. v. K, Bashyam alias Arya" AIR 1961 Mad. 114; Purgan Pande v. Dhanpat Tewari AIR 1919 Pat.309; Lai Mohan Prasad v. Govind Sahu AIR 1940 Pat. 620 and Hassan Ali v. Azmaluddin PLD 1963 Dacca 486 ref.
S.115 Estoppel Language upon which the estoppel is founded must be precise and unambiguous and must be such as will be reasonably understood in a particular sense by the person to whom it is addressed.
S.115 Estoppel Where estoppel is not pleaded in specific terms, any evidence contrary to the pleadings is not be looked into Question of estoppel which ultimately depends on questions of fact, unless put clearly in issue, cannot be raised in arguments.
Safar Ali v. Mohesh Lal Chowdhury AIR 1916 Cal. 924 ref.
S.115 Estoppel Question of estoppel must be decided on common law principle of construction and should be strictly construed Any point in doubt must be decided against estoppel.
Nihal Sing v. Narain Singh AIR 1)024 Lah. 469 ref.
S.115 Estoppel When a person attests a deed whereby property in dispute was transferred by the vendor to the vendee; he does not thereby waive his right to avoid sale deed Attestation itself would not create any estoppel nor it could be said that the person knew that a particular belief would arise and he signed the deed with the intention to create same.
Mst. Lakhpati v. Rambodh Singh AIR 1915 All. 255; Kanhu Lal Marwari v. Palu Sahu AIR 1920 Pat. 1; Pandurang Krishnaji v. M. Tukaram AIR 1922 PC 20; Udai Bhan Singh v. Gajendra Singh AIR 1923 All. 28; Hamidmiya Sarfuddin v. Nagindas Jivanji AIR 1933 Bom. 217; Mst. Jasodar Dusadhin v. Mt. Sukurmani Mehtrani AIR 1937 Pat. 353 and Raibha0 Lazmanji v. Memdoe Punjaji AIR 1952 Nag. 96 ref.
S.115 Estoppel Sale deed Mere attestation by a relative of an executants does not necessarily import his concurrence with the transaction Transaction would not convey the impression, that he made a representation with regard to the contents of the sale deed to the vendee on the vendee, on such a representation, had acted upon it to his detriment.
Ram Gopal v. Lal Mohan Lal AIR 1960 Pb. 226 ref.
S.115 Estoppel Mortgage Person"s relationship with the mortgagor cannot by itself necessarily have the effect of fixing the former with the knowledge of the contents of the deed so as to make out a case of estoppel against him.
Ram Gopal v. Lai Mohan Lai AIR 1960 Pb. 226 ref.
S.115 Estoppel Will Attestation of a will by a son will not operate as estoppel against him.
Ram Gopal v. Lal Mohan Lal AIR 1960 Pb. 226 ref.
5.115 Estoppel Doctrine of estoppel is not applicable outside the provisions of S.115, Evidence Act, 1872 Unless a person is found guilty of either an overt act or of an act of omission which is likely to induce the other side to believe that he is entitled to commit the particular act complained of, there can be no question of estoppel.
Lai Khan v. Allah Ditta PLD 1950 Lah. 196 and Ram Dat v. Chhotak AIR 1928 Oudh 23 ref.
S.115 Where there was no declaration, act or omission which intentionally caused or induced the other person to believe a thing to be true which in fact was not true, there could be no estoppel.
S.115 Estoppel Party to be estopped must have intentionally induced a belief in the other party as to certain state of facts with the. intention that on the faith of that belief it may act in a certain way Where a party does not, by its representation, induce that belief in the other party, there would be no estoppel.
S.115 Application of S.115 Provisions of S.115 do apply to a case in which belief, otherwise caused, has been only allowed to continue by reason of any omission on the part of the person against whom estoppel is sought to be raised.
S.115 Words "intentionally caused or permitted another person to believe a thing to be true and to act upon such relief" in S.115 Meaning.
The words "intentionally caused or permitted another person to believe a thing to be true and to act upon such belief" in section 115 of the Evidence Act, 1872 clearly suggest that the party against whom estoppel is pleaded must actually have an intention that the particular person pleading estoppel should believe a certain thing to be true and should act upon such belief. If, therefore, such an intention was never in the mind of the party against whom estoppel is pleaded, a plea of estoppel would not sustain. The essence of the doctrine of estoppel, therefore, is that the defendant would have been misled. Where a person is misled and there is not any such representation made by the opposite party, no estoppel is created against the latter.
S.115 Estoppel Where all that was alleged was that the plaintiff was present and did not object to the attestation of mutation in favour of defendant, no estoppel can be said to have been created within the meaning of S.115.
Outab ud Din v. Muhammad Siddique PLD 1969 Lah. 418 ref.
S.115 Estoppel Provisions of S.115 do not apply where the statement relied upon as creating estoppel is made to a person who knows the real facts and is not misled by the untrue statement.
Firm Loring Chand Lachhman Das v. Punjab National Bank Ltd., Sargodha AIR 1940 Lah. 245 ref.
S.115 Estoppel Where the defendant is deemed to have known what his legal rights were, any representation of a matter of legal inference from the facts known to both the parties is not a ground of estoppel No estoppel would be created where truth appears on the face of the proceedings When a party had the means of knowledge of the real state of affairs, there can be no estoppel.
S.115 Estoppel Estoppel proved from the evidence Omission to plead estoppel specifically, whether fatal for a party to rely on doctrine of estoppel.
Haji Ghulam Rasool v. The Chief Administrator of Auqaf PLD 1971 SC 376; Malik Ghulam Jilani v. The Province of Punjab PLD 1979 Lah. 564; Mallah v. Assistant Commissioner/ Collector, Faislabad 1979 CLC 400 and Muhammad Yasin v. Jan Muhammad Civil Appeal No.58 of 1985 distinguished.
Raja Lehrasap Khan for Appellant. j
Muhammad Yunus Surakhvi for Respondent No.l.
RAJA MUHAMMAD KHURSHID KHAN, CJ. This appeal, by leave directed against the judgment of the High Court, dated 27th of April, 1986, arises in the following way:
Two ladies, Mst. Gulab Begum and Mst. Mansha Begum, on the basis of a registered deed, sold land measuring 34 Kanals 9 Marlas comprising survey Nos.193, 194, 195, 196 and 197, situate within the area of village Matyal, Tehsil Kotli, on March 2, 1964, to one Muhammad Sharif, respondent herein. Muhammad Afsar, appellant to this appeal, sought avoidance of the sale deed by way of a civil suit in the civil Court of original jurisdiction, Kotli, inter alia, on the ground that the lady vendors had sold the land beyond their entitlement. Declaratory decree was sought to the effect that the sale deed in excess of the share of the lady vendors is inoperative and ineffective to his and that of pro forma defendants" rights. Consequential relief for possession to the extent of their share in the land was also claimed.
The learned Sub Judge, after conducting the proceedings, vide order dated 12th February, 1981, found that the share of the lady vendors in the land sold was only to the tune of 30 Kanals and thus the land measuring 4 Kanals 9 Marlas, beyond their share, was incompetently sold. On the above finding, it was held that the land sold in excess of vendors" entitlement is ineffective qua the rights of Muhammad Afsar and others. Muhammad Sharif respondent, went up in first appeal to the District Judge. During the pendency of the appeal, he moved an application for amendment of the written statement to the effect that Muhammad Afsar was estopped to move the suit. After allowing the amendment, the case was remanded back to the trial Court to frame an issue on the basis of amendment and decide the case afresh after affording opportunity to the parties to adduce evidence on the issue. The issue was framed and after recording evidence, the learned Sub Judge, vide order dated 23 10 1983, found that although the vendors were entitled to effect sale of the land to the extent of 30 Kanals only and the sale to the extent of 4 Kanals 9 Marlas was bad in law; yet the appellant, Muhammad Afsar (plaintiff), was estopped to challenge the sale. Consequently, the suit was dismissed vide order dated 23 10 1983.
Muhammad Afsar, plaintiff appellant, feeling dissatisfied with the aforesaid order of the Sub Judge, went up in first appeal to the Court of District Judge, Kotli, who, vide order dated 30 9 1985, found that Muhammad Afsar, appellant, was not estopped to challenge the sale of the land. It was, however, held that the sale deed was only valid to the extent of 7 Kanals and 3 Marlas and so the excess of the land sold is ineffective qua the rights of the appellant. Consequently, a decree for possession of the land to the extent of 27 Kanals and 6 Marlas was passed in favour of Muhammad Afsar and other pro forma respondents vide order, dated 30th September, 1985. This order of the learned Disrict Judge, however, in second appeal was vacated by a learned Single Judge of the High Court, inter alia, on the ground that Muhammad Afsar"s conduct estopped him to file the suit. The learned Judge however found that since the lady vendors were entitled to sell only 7 Kanals 3 Marlas of land the land measuring 27 Kanals and 6 Marlas sold in excess to their entitlement was illegally transferred. This appeal, by leave, assails the said judgment of the High Court.
2. What was the entitlement of the lady vendors, is the first question to be answered. So far the entitlement of the lady vendors is concerned, they held 1/8th and 1/12th share respectively in the land measuring 34 Kanals 9 Marlas; they were, thus, entitled to alienate only 7 Kanals and 3 Marlas of land. We, therefore, concur with the High Court that 27 Kanals and 6 Marlas of land sold was in excess of their entitlement. We, therefore, conclude the matter in holding that the sale deed would operate only to the extent of 7 Kanals 3 Marlas.
3. Let us now see as to how the question of estoppel is decided by the High Court. Estoppel, according to the learned Judge in the High Court, stands established for the following reasons:
(a) The copy of Jamabandi" (Exh.DE) issued to Muhammad Sharif, respondent Muhammad Afsar, appellant, by Nazar Muhammad, Patwari, for the purposes of the sale of the land, according to the learned Judge, provides sufficient proof to the effect that Muhammad Sharif, by this conduct of Muhammad Afsar, was made to believe that lady vendors" entitlement extended to 34 Kanals and 9 Marlas of land and Muhammad Sharif in good faith believing it to be correct also acted upon it;
(b) Muhammad Afsar"s presence at the time of execution of sale deed (Exh.DC) and attestation of the deed as a witness coupled with his thumb impression on the receipt (Exh.DD), on the basis of which a part of sale consideration amounting to Rs.3,000 was paid to the ladies, created estoppel for Muhammad Afsar to institute a suit to avoid the sale deed on the basis of their entitlement less than the sale made; and
(c) Reliance was also placed on the statements of Nazar Muhammad and Said Ahmed, P.Ws. on the basis of which it was held by the learned Judge that the appellant arranged the sale and, therefore, it would be unjust to allow him to deny the rights of respondents Nos:2 and 3 (lady vendors) to sell the land.
In view of the above, the learned Judge is of the opinion that the conduct of Muhammad Afsar made Muhammad Sharif to believe that the lady, vendors were entitled to sell land rri6asuring 34 Kanals 9 Marlas and since the representation was also acted upon in good faith by Muhammad Sharif, believing it to be correct, Muhammad Afsar was estopped to challenge the sale deed.
5. The sale deed bears the alleged thumb impression of Muhammad Afsar as an attesting witness. Muhammad Afsar, in his statement, denied his thumb impression on this document, (Exh.DC). Therefore, heavy burden lay on Muhammad Sharif to prove that the document bears Muhammad Afsar"s thumb impression; this could be done in convincing way by examining an expert, which has not been done. Besides, mere attestation of sale deed in no way would create estoppel for Muhammad Afsar to challenge the sale deed, if the sale deed i , otherwise a defective one.
6. It is settled principle of law that attestation of a deed by itself would not estop a man to challenge the validity of the sale deed except that he would not be allowed to deny that he witnessed the execution of the deed. The attestation of a 1 document as a witness does not mean that such a person has consented to the transaction which the document effects or admitted the contents of the document as correct or made any representation on the basis of which other person changed his position or acted upon it. This view prevailed in Bhagwan Singh v. Ujagar Singh AIR 1928 PC 20. It was observed in that case:
"This does not conclude the matter, for attestation of a deed by itself estops a man from denying nothing whatever except that he witnessed the execution of the deed, and by itself it does not show that he consented to the transaction which the document effects."
7. We have also looked into the statements of Nazar Muhammad, Patwari, and Said Ahmad. Said Ahmad nowhere states that Muhammad Afsar has put his thumb impression on the sale deed. Likewise he does not say in a clear way that receipt (ExhDD) bears the thumb impression of Muhammad Afsar. In these circumstances, in the absence of the statement of an expert, the statements of these two witnesses do not inspire confidence to be believed. Nazar Muhammad, Patwari, only says that a copy of Jamabandi" (Exh.DE) was issued to Muhammad Afsar which bears his signature. He nowhere says that contents were explained away to Muhammad Afsar or he, in any other way, was made conversant of the fact that the copy enters the ownership of the lady vendors to the extent of 34
Kanals 9 Marlas. The statement only conveys that the copy of the Jamabandi" was issued to him. How this fact would create estoppel for Muhammad Afsar to institute a suit if the sale deed otherwise was in excess of the entitlement of the lady vendors, we fail to understand. The statement of Muhammad Afsar also fails to say that the lady vednors were entitled to sell 34 Kanals 9 Marlas of land.
8. Thus, we find no material to suggest that Muhammad Sharif was induced by Muhammad Afsar in any way to believe that the lady vendors have had entitlement in the land to the extent of 34 Kanals 9 Marlas. In the circumstances, there arises no question of estoppel for Muhammad Afsar to challenge the correctness of the deed. The law of estoppel would only be applicable when it was proved that another person by a representation made or by conduct, amounting to representation, has induced to believe an act to be true and on that belief acted upon it and in the absence of such a representation such a person would not have believed so. In such circumstances and not otherwise the person who made the representation would not be allowed to deny or repudiate the effect of his statement or his former conduct. But in the instant case, no such situation is established or available to attract the principle of estoppel.
9. To us, what is enacted in section 115 is the rule of evidence by which a person is not allowed to plead contrary of a fact or a state of things which he formerly asserted as existing and made the other party to believe it as such and then acted on it on such belief. The rule, at times, is viewed as a substantive rule of law and comes into play whenever a person causes another to believe a thing to be true and act upon such belief and alter his position. It follows that to create estoppel there must be firstly; a representation of an existing fact as distinct from a mere promise de future made by one party to the other; and secondly, the other party believing it must have been induced to act on the faith of it; and thirdly, the party must have so acted to his detriment.
10. Therefore, to rely on doctrine of estoppel, the Court is to be satisfied that a person has caused the other person to believe a state of fact to be true and the other person, it must be established not only believed it so but has also acted on it to his prejudice. All these requirements must co exist to attract the doctrine of estoppel.
11. Therefore, where the opposite party has not acted to his detriment on the basis of any representation, estoppel can neither be created nor pleaded. In other words to constitute an estoppel, the following elements must be present:
(i) a representation of concealment of material facts;
(ii) such representation must have been made with the knowledge of real facts;
(iii) the party to whom it was made must have been ignorant of the matter;
(iv) the intention of the person making the representation was that the other party should act upon it;
(v)the other party was thereby induced to act upon it; and
(vi) he did so to his detriment.
We are supported in our view in Ram Singh v. Baldco Prasad AIR 1932
All. 643, Lal Khan v. Allah Ditta PLD 1950 Lah. 196, Govindsa Marotisa v. Ismail AIR 1950 Nag. 22 and Draupadi Beherani v. Sambari Behera AIR 1958 Orissa 242.
In Ram Singh v. Baldeo Prasad AIR 1932 All. 643 it has been held:
"In order to operate as estoppel under the aforesaid section, three conditions must be fulfilled: (1) there must be a representation made by the opposite party with a view to cause belief, (2) the representation should have been believed under circumstances that its falsity could not be ascertained in spite of due diligence and (3) actions arising out of such belief. There can be no estoppel where truth is accessible. Again, there can be no estoppel in the absence of representation or conduct amounting to such. Further, there can be no estoppel where a party is not misled and has not been induced to do something detrimental to his interest owing to the action of the other party."
In Lal Khan v. Allah Ditta PLD 1950 Lah. 196 it was observed:
"The doctrine of estoppel rests upon the principle that the person invoking it has relied upon a declaration, act, or omission, of another person, and has thereby been induced to change his position to his detriment."
In Govindsa Marotisa v. Ismail AIR 1950 Nag. 22 it has been held:
"The rule is that a representation to ground an estoppel must be clear and unambiguous."
In Draupadi Beherani v. Sambari Behera AIR 1958 Orissa 242 it is said:
"Estoppel thus operates merely as a personal disqualification and does not bind any one who claims by an independent title. A person may be so estopped although he was acting in good faith or without full knowledge of the circumstances or under a mistake or misapprehension. The misrepresentation to operate as an estoppel must be of a matter of fact.
An erroneous expression of opinion that an adoption was valid in law cannot lead to an estoppel. Mere acquiescence in an adoption, or mere presence at an adoption, does not create an estoppel or even subsequent conduct recognising the adoption."
12. It may be noted that estoppel deals with the question of fact and not with the question of right. In other words there is no general rule of law that a man is estopped from asserting the right which he has said that he will not assert. It may be that a man who agrees not to assert a right may, in some circumstances, be bound by his agreement, but that is a different matter and it is based on the contract of relinquishment of one"s rights and not on estoppel. Qutub ud Din v. Muhammad Siddique PLD 1969 Lah. 418 owns this view. It has been held in that case:
"It is clear from a plain reading of the section that to estop a person from asserting his right, it is necessary to prove that he had made representation intentionally to another person. Mere silence or failure to object may not amount to intentional representation in every case."
13. The principle of estoppel, broadly speaking, is based on equity and good conscience and the object is to prevent fraud and secure justice between parties by promoting honesty, good faith and preventing the parties from approbating and reprobating at the same time. Identical view we find in R.S. Maddanappa v. Chandramma AIR 1965 SC 1812. It is observed in that case:
"The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel, if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation."
14. There is another important aspect of the case to be looked into. Amended written statement only says that Muhammad Afsar, appellant, is estopped to institute the suit. No particulars to constitute estoppel are entered in the written statement. The pleadings as such create no estoppel; because the estoppel ought to be pleaded with sufficient clarity; there should be distinct pleadings stating the facts on which estoppel is founded. Without definite allegations in the pleadings, a party cannot be permitted to resort to the plea of estoppel. In Shaikh Abdul Rahim v. Mst. Barira AIR 1921 Pat. 166 (2), it was held:
"The rule of estoppel is a rule of evidence and ought to be pleaded with sufficient clearness."
Chandi Charan Nath v. Samala Bibi AIR 1918 Cal. 917, Kanhayalal Pyarelal v. Bhaiyalal Kishorelal AIR 1934 Nag. 51 and Associated Publishers (Madras) Ltd. v. K. Bashyam alias "Arya " AIR 1961 Mad. 114 also own identical statement of law. In Chandi Charan Nath v. Samala Bibi AIR 1918 Cal. 917 it has been held:
"It is absolutely necessary to plead estoppel if it is intended to rely on it. This is not a technical rule of pleading, but a matter of substance. For if estoppel is pleaded it may be possible for the other side to show that there could be no estoppel, the real facts being known."
In Kanhayalal Pyarelal v. Bhaiyalal Kishorelal AIR 1934 Nag. 51 it is observed:
"To sustain the plea of estoppel, which is not a pure question of law but a mixed one of fact and law, there should have been distinct pleadings by the defendants stating the facts on which an estoppel could be founded."
In Associated Publishers (Madras) Ltd. v. K. Bashyam alias "Arya" AIR 1961 Mad. 114, the law is enunciated to the effect:
"A question of estoppel is a mixed question of fact and law, and without definite allegations m the pleadings a party should not be permitted to resort to the plea of estoppel."
It, therefore, follows that the language upon which the estoppel is founded must be precise and unambiguous. It must be such as will be reasonably l understood in a particular sense by the person to whom it is addressed. Such a statement is not available in this case.
15. The question of estoppel in clarity is to be raised in pleadings to enable a Court to come to a conclusion whether the principle of estoppel is or is not applicable to the case. The Court will refuse to go into the matter if such a recourse is not adopted. Purgan Pande v. Dhanpat Tewari AIR 1919 Pat. 309 owns this view. It has been held in that case:
"A question of estoppel can only be raised by pleading and that if no question of estoppel has been raised in the pleadings, the Court will refuse to go into the matter, because after all the doctrine of estoppel is merely an extension of the doctrine of admission which depends on the facts of each case, and that the Court is clearly unable to examine the facts unless those facts are pleaded."
16. Our conclusion, therefore, is that estoppel is to set up in the written statement with clarity and where no such case of estoppel is set up in the written statement (as is done in the present case), the case of estoppel cannot be allowed to be put forward at the hearing. We find also this statement of law in Lai Mohan Prasad v. Govind Sahu AIR 1940 Pat. 620 and Hassan Ali v. Azmaluddin PLD 1963 Dacca 486. In Lai Mohan Prasad v. Govind Sahu AIR 1940 Pat. 620, it has been observed:
"Where no case of estoppel under section 41 is set up in the written statement the case should not be allowed to be put forward at the hearing."
In Hassan Ali v. Azmaluddin PLD 1963 Dacca 486 it has been held:
"Where no case of estoppel under section 41. of the Transfer of Property Act is set up in the written statement, it cannot be allowed to be put forward at the time of the hearing of the suit."
17. The result is that where estoppel is not pleaded in specific terms, any evidence contrary to the pleadings is not to be looked into. Therefore, a question of estoppel which ultimately depends on questions of fact, unless put clearly in issue, cannot be raised in arguments. We find this law in Safar Ali v. Mohesh Lai Chowdhury AIR 1916 Cal. 924 wherein it has been held .
"A question of estoppel, which ultimately depends on questions of fact, unless put clearly in issue, cannot be raised in arguments."
Therefore, even assuming the pleadings to be proved and absolutely correct, the pleadings being ambiguous and having no particulars to suggest estoppel, cannot be said to have created any impediment or bar for Muhammad Afsar to institute the suit to challenge the validity of the sale deed.
18. Besides, the question of estoppel must be decided on common law principle of construction. It should be strictly construed and any point in doubt must be decided against estoppel. This statement of law we find in Nihal Sing v. Narain Singh AIR 1924 Lah. 469. It has been held in that case:
"The estoppel must be very strictly interpreted and any point in doubt must be decided against the estoppel."
19. Our conclusion, therefore, is that in the instant case there is no convincing evidence to support the plea that the appellant has in any way made a representation which induced respondent, Muhammad Sharif, to believe that the land measuring 34 kanals 9 marlas was under the ownership of the lady vendors, namely, Mst. Gulab Begum and Mst. Mansha Begum. We, therefore, cannot subscribe to the contention of the learned counsel for the respondent that Muhammad Afsar, appellant, had made any representation. on the basis of which Muhammad Sharif, vendee respondent, was induced to purchase the land considering the same to be of the lady vendors. The evidence on this issue, as discussed above, does not inspire confidence to be believed. The copy of the record of rights appended with the sale deed purported to have been issued to Muhammad Afsar (though Muhammad Afsar denies the same), does not furnish evidence to create estoppel for Muhammad Afsar to challenge the sale deed. It can at the best be said that copy was received by Muhammad Afsar. It can neither be assumed nor said that Muhammad Afsar knew or was made conversant of the entries of the copy showing the lady vendors to be the owners of land measuring 34 kanals 9 marlas. There is also no evidence to suggest that Muhammad Afsar made any representation on the basis of which Muhammad Sharif, while acting upon such representation, changed his position to his detriment.
20. Then we have the alleged thumb impression of Muhammad Afsar on the receipt (Exh. DD) wherein an amount of Rs.3,000 is said to have been received by the lady vendors as a part of sale consideration. In the first instance there is no proof that the thumb impression is of Muhammad Afsar. Muhammad Afsar denied his thumb impression on the receipt. Besides, there is no evidence to show that Muhammad Afsar is a literate person capable to read the receipt or the receipt was read over to him. Therefore, in the absence of an expert to show that receipt carries the thumb impression of Muhammad Afsar, it cannot be said that Muhammad Afsar affixed his thumb impression on the receipt. Even otherwise; if we assume that the receipt bears the thumb impression of Muhammad Afsar, it would not create estoppel for Muhammad Afsar to challenge the sale deed. At the most it would show that a consideration in the amount of Rs.3,000 passed hands as a part consideration for some sale. The remaining evidence in support of estoppel is in the shape of his alleged thumb impression on the sale deed (Exh.DC) Muhammad Afsar denied to have put his thumb impression on the sale deed. But assuming that the sale deed carries the thumb impression of Muhammad Afsar as an attesting witness, it would in no way constitute estoppel. It would only be a proof that the sale deed was executed. It can never be said that Muhammad Afsar knew the entries in the sale deed.
21. The law is well set that the attestation of a deed estops a man from denying nothing whatsoever except that he has witnessed the execution of the deed. It conveys neither directly nor by implication, any knowledge of the contents of a document and it ought not to be put forward for the purpose of establishing that a man consented to the transaction which the document effects. There is host of case law in support of this proposition. Mst.Lakhpati v. Rambodh Singh AIR 1915 All. 255, Kanhu Lai Marwari v. Palu Sahu AIR 1920 Patna 1; Pandurang Krishnaji v. M. Tukaram AIR 1922 PC 20;Udai Bhan Singh v. Gajendra Singh AIR 1923 All. 28, Hamidmiya Sarfuddin v. Nagindas Jivanji AIR 1933 Bom. 217 and Mst. Jasodar Dusadhin v. Mt. Sukurmani Mehtrani AIR 1937 Patna 353 are some of the authorities which own this view. Thus, where a person attests a deed whereby property in dispute was transferred by the vendor to the vendee; he does not thereby waive his right to avoid the sale deed.
22. Therefore, attestation itself does not create any estoppel nor it can be said that a person knew that a particular belief would arise and he signed the deed with the intention to create it. This view we find in Raibhan Laxmanji v. Mamdeo Punjaji AIR 1952 Nag. 96 wherein it is said:
"Attestation itself, does not create any estoppel nor does the belief of other parties as to the meaning of attestation affect the man who has placed his signature as a witness, unless, it can be established, which has not been done in the present case, that he knew that that belief would arise and signed with that intent."
23. In the instant case, as said earlier, even if we assume that Muhammad Afsar, appellant, attested the sale deed, there is nothing to hold that he knew that the belief would arise that the land entered in the sale deed belongs to the lady vendors and he signed the deed with the intent to create such a belief in Muhammad Sharif, and Muhammad Sharif, in turn, acted upon such belief to his detriment. Therefore, mere attestation by a relative of an executant (as is done in the present case) does not necessarily import his concurrence with the transaction. The transaction would not convey the impression that he made a representation with regard to the contents of the sale deed to the vendee and the vendee, on such a representation, had acted upon it to his detriment. For example, a person"s relationship with the mortgagor cannot by itself necessarily have the effect of fixing the former with the knowledge of the contents of the " deed so as to make out a case of estoppel against him. Likewise, attestation of a will by a son will not operate as estoppel against him. Ram Gopal v. Lal Mohan Lal AIR 1960 Punjab 226 has identical statement of law. In this case it has been I; observed:
"Mere attestation of a deed does not by itself impute to the attesting witness any knowledge of its contents. Similarly, a person"s relationship with the mortgagor cannot by itself necessarily have the effect of fixing the former with the knowledge of the contents of the deed so as to make out a case of estoppel against such a person."
24. Attestation by itself, as said earlier, does not operate as estoppel, but it can so operate coupled with other circumstances. It may be stated here that there is no room for any application of the doctrine of estoppel outside the provisions of section 115 of the Evidence Act in Azad Kashmir and Pakistan. This view we find in Lal Khan v. Allah Ditta PLD 1950 Lah. 196 wherein it has been held:
"There is no room for any application of doctrine of estoppel outside the provisions of section 115 of the Indian Evidence Act in this country."
25. Therefore, unless a person is found guilty of either an overt act or of an act of omission which is likely to induce the other side to believe that he is entitled to commit the particular act complained of, there can be no question of estoppel. Ram Dat v. Chhotak AIR 1928 Oudh 23 owns this view. In this case it was observed:
"Unless a person is found guilty of either an overt act or of an act of omission which is likely to induce the other side to believe that he is entitled to commit the particular act complained of, there can be no question of estoppel: plea of estoppel can be maintained only if the conduct of the person against whom estoppel is alleged, is found to be fraudulent."
26. The conclusion to which we arrive is:
(a) Where there is no declaration, act or omission which intentionally caused or induced the other person to believe a thing to be true which in fact was not true, there can be no estoppel.
(b) A party to be estopped must have intentionally induced a belief in the other party as to certain state of facts with the intention that on the faith W of that belief it may act in a certain way. Where a party does not, by his representation, induce that belief, there is no estoppel.
(c) Section 115 does not apply to a case in which belief, otherwise caused, has been only allowed to continue by reason of any omission on the part of the person against whom estoppel is sought to be raised.
27. Before concluding, let us now have brief survey as to what do we mean by "intentionally caused or permitted another person to believe a thing to be true and to act upon such belief". The words "intentionally caused or permitted another person to believe a thing to be true and to act upon such belief" in section 115 clearly suggest that the party against whom estoppel is pleaded must actually have an intention that the particular person pleading estoppel should believe a certain thing to be true and should act upon such belief. If, therefore, such an intention was never in the mind of the party against whom estoppel is pleaded, a plea of estoppel would not sustain. The essence of the doctrine of estoppel, therefore, is that the defendant would have been misled. Where a person is I misled and there is not any such representation made by the opposite party, no I estoppel is created against the latter.
Therefore, in the instant case even if we assume that Muhammad Sharif was misled to believe that the land in totality belonged to the lady vendors, there is no evidence to show that it was due to any representation made by Muhammad Afsar which made Muhammad Sharif to change his position. Therefore, the question of estoppel against Muhammad Afsar cannot be pleaded.
28. Where all that was alleged (as is done in the present case) was that the plaintiff was present and did not object to the attestation of mutation in favour of the defendant, no estoppel can be said to have been created within the meaning of section 115 of the Evidence Act against the plaintiff. Qutub ud Din v. Muhammad Siddique PLD 1969 Lah. 418 owns the same view. In that case it was held:
"All that was alleged was that the plaintiff was present and did not object to the attestation of the mutation in favour of the defendants. This falls far short of creating estoppel within the meaning of section 115 against the plaintiff."
In the instant case there is no evidence to show that the appellant had made any representation to the vendee, Muhammad Sharif, and there is nothing to show that Muhammad Afsar represented anything to anybody or permitted Muhammad Sharif to believe or disbelieve anything.
29.There is another aspect of the case. Section 115 of the Evidence Act does not apply where the statement relied upon as creating estoppel is made to a person who knows the real facts and is not misled by the untrue statement. So was held in Firm Lorind Chand Lachhman Das v. Punjab National Bank Ltd., Sargodha AIR 1940 Lah. 254. It has been held in that case.
"Section 115 does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be no estoppel where the truth of the matter is known to both parties."
30. In the instant case Muhammad Sharif must have looked into the relevant record to ascertain the acreage of the ownership of the lady vendors. In a case where the defendant is deemed to have known what his legal rights were, any representation by a person would not create estoppel. Mere representation of a matter of legal inference from the facts known to both the parties is not a ground of estoppel. There can be no estoppel where truth appears on the face of the proceedings. If a party had the means of knowledge of the real state of affairs,. there can be no estoppel.
31. Here the record clearly reflected the true position and there should have been no mistake about the acreage of the land or the ownership of the lady vendors if the record would have been minutely perused. Thus, where a father has purchased the property in the name of his son and the opposite party pleads estoppel when the father claims the property to be his self acquired.property, the plea of estoppel cannot be sustained; if the party could have known the real state of affairs if it had tried to do so.
32. The above critical survey of the doctrine of estoppel would show that the High Court erroneously held that Muhammad Afsar was estopped to challenge the sale deed. The approach made to the doctrine of estoppel is a clear departure from the settled law on the point.
33. Before parting with the case, we may make a reference to the written arguments submitted by Mr. Muhammad Yunus Surakhvi, the learned counsel for the respondent, which were received very late. We have looked into the written arguments. It is agreed by Mr. Yunus Surakhvi that estoppel should be specifically pleaded but he submits that at times if it is proved from the evidence, omission to plead specifically cannot be considered to be fatal for a party to rely on doctrine of estoppel.
We need not go in details to rebut the argument advanced by Mr. Yunus Surakhvi for the reason that as discussed above, the evidence also fails to prove any estoppel. In the written arguments, Haji Ghulam Rasool v. The Chief Administrator of Auqaf PLD 1971 SC 376; Malik Ghulam Jilani v. The Province of Punjab PLD 1979 Lah. 564; Mallah v. Assistant Commissioner/Collector, Faisalabad 1979 CLC 400 and an unreported judgment of this Court entitled Muhammad Yasin v. Jan Muhammad Civil Appeal No.58 of 1985 decided on 1 4 1989, have also been referred to us.
34. We have gone through these cases. The enunciation of law made in the above cases is distinguishable and has nothing common with the facts of the present case. In the unreported case of this Court, it was only said that this Court, under section 42 A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and under rules 3 and 4 of Order XLIII of the Supreme Court Rules, has wide powers to consider an order suo motu if it feels that the same has resulted in patent injustice. No such situation is available in the present case to attract the aforesaid provisions. The other cases pertain to doctrine of estoppel which we have discussed elaborately above.
In the result we feel advised to accept this appeal. Resultantly, the judgment of the High Court dated 18 4 1986, whereby the appeal of respondent Muhammad Sharif was accepted, stands vacated and the judgment of the District Judge passed on 30 9 1985 stands restored. However, since the property is joint, the possessory decree in favour of the appellant will be joint in character. In the circumstances of the case we make no order as to costs.
M.BA./261/S.CA. Appeal accepted.
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