Holding

The Court held that the mortgage is indivisible, a co‑mortgagor cannot redeem only his share, and the heirs' endorsements do not meet the requisites of estoppel, so the plaintiff’s right to redeem stands.

Summary

Motibhai created two mortgages on his property; after his death the mortgagor's heirs and successive mortgagees transferred their interests, and the plaintiff, Narandas Haribhai Patel, purchased the equity of redemption from the heir Taralaxmibai and sued the mortgagees for redemption. The issues were whether a co‑mortgagor could redeem only his share under Section 60 of the Transfer of Property Act, whether the suit abated against a deceased defendant whose heirs were not joined, and whether the heirs' endorsements on mortgagee notices amounted to estoppel under Section 115 of the Evidence Act. The Supreme Court held that the mortgage is indivisible, a co‑mortgagor cannot redeem a proportionate share, and the endorsements did not satisfy the elements of estoppel; consequently the plaintiff’s right to redeem was not barred by estoppel or limitation. The appeal was dismissed, confirming the lower court’s decree in favour of the plaintiff.

Issues considered

Whether a co‑mortgagor may redeem only his share of the mortgaged property under Section 60 of the Transfer of Property Act.
Whether the suit abates against a deceased defendant when his heirs are not impleaded.
Whether the endorsements by the mortgagor’s heirs constitute estoppel under Section 115 of the Evidence Act.
Whether the plaintiff, as purchaser of the equity of redemption, has a right to sue for redemption.
Whether the suit is barred by limitation.

Legislation cited

Code of Civil Procedure, 1908s. Order 34 Rule 1
Indian Evidence Act, 1872s. 115
Transfer of Property Acts. 60

Subjects

mortgageredemptionco‑mortgagorindivisibilityestoppellimitationcivil procedureevidence acttransfer of property act

Judgment

A

·-
166

CHHAGANLAL KESHAVLAL MEHTA
v.
PATEL NARANDAS HARIBHAI
B December 11, 1981

(V. BALAKRISHNA ERADI AND R. B. MISRA, JJ.]

Suit for redemption of mortgage-Order XXXIV Rule I CM/ Procedure
Code-Right of a co-mortgagor lo redeem his own share, section 60 of the Transfer
c of Property Act, scope of-Abatement by death of parties-Order XXlll Rule 2
Civil Procedure Code.

Estoppel by conduct-Section ll5 of the Evidence Act-Difference between
admission and estoppel, explained.
-
Motibhai created two mortgages in respect of the same property in the years
1871 and 1893 in favour o-f one Nanaji who died somewhere between I 890 and
D 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.
E
Mortgagor Motibhai also died leaving behind his son Cbimanrai. 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 'Nho later on conveyed his right, title and interest in
the property to the respondent-plaintiff Narandas Haribhai Patel. During the
life time of Chimanrai, Ganpatrnm, the mortgagee had sent a notice, Exhibit 77
F 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 aod 6th October 1933 to Taralaxmibai daughter of Chimanrai
G and to Chhotiba, the widow to the same effect. Both Chhotiba and
Taralaxmibai denied their liabilities. Narandas after the purchase of the mort-
gagor's 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
H 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 ef estoppel. The appeal and the cross-objection filed by the parties were
C.K. MEHTA V. P. N. HARIBHAI 167

allowed by the Assistant Judge holding that plaintiff bad purchased the equity of A
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 inlerest. He further held that the suit was barred by time and estoppel, and B
that defendant No. I 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 defendent No. 1
but dismissed as abated against defendent No. 2 and it was held that the respon-
dent 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
c
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. I also filed a cross-objec-
tion. 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 .
D
.. Dismissing the appeal, the Court

HELD : I. Under section 6) of the Transfer of Property Act, a co-
mortgagor cannot be permitted to rejeem his own share of the mortgaged
properly only on payment of proportionate part of the amount remaining due.
In other words, the integrity of the mortgage cannot be broken. [173 G] E
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 i 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 mort- F
gage amount should be paid to the mortgagees who are actually before the
court. [174 D-F]

Motilal Yadav v. Sama! Bechar, (1930) 54 :Born. 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 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) H
3:2. A person may be a necessary party in a suit but he may not be a
necessary party io the appeal. [175 A]
168 SUPREME COURT REPORTS [1982] 2 S.C.R.

A 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
B 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; (vi) the
misrepresentation 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 be was aware of the real state of affairr or had mean& of knowledge, there can
c 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 estoppcl 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 admis>ions by
D proving that they are either mistaken or untrue. But estoppel creates an absolute
bar. Estoppel deals with questions of fans 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 princiole that there can be no estoppel against a statute.
f175G, H-176 BJ

4:3. In the instant case (i) the ingredients of section 115 of the Evidence
E Act have not been Julfilled. 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. It is
difficult to say that defendant No, I bas moved his position on account of the
representation made by the mortgagor or his heirs or assignees. (176 G-H]

F CIVIL APPELLATE JURISDICTION: Civil Appeal No. !S67 of 1970.

From the judgment and order dated the 18th February, 1970
of the Gujarat High Court in Letters Patent Appeal No. 6/60.

S. S. Sheth, Ravinder Narain, J. B. Dadachanji, 0. C. Mathur
G and Mis. Anjuli K. Vernrn for the Appellant.

Gautham Philip, P. H. Parekh and Mrs. Vincua [Sen Gupta for
the Respondent.
The Judgment of the Court "'as delivered by
H
MISRA, J. The present appeal by certificate is directed against
the judgment of the High Court of Gujarat at Ahmedabad in
C.K. MEHTA v. P.N. HARJBHAI v. (Misra, J.) 169

Letters Patent Appeal No. 6 of 1966 dated the 18th of February, A
1970 decreeing the suit for redemption.

The property in dispute, situated in Baroda City, orginally
belonged to Motibhai Bapubhai Shibandi Baxi (for short Motibhai).
He created a mortgage with possession of the disputed property in
favour of one, Nanaji f Balwant Pilkhanewala (for short Nanaji) in B
1871 for a sum of Rs. 800. In 1890 a isecond 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 c
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 D
, Chhotelal) sold away his rights as a mortgagee in possession in
.'{~. respect of the rest of the properties which still remained with him,
to Chhaganllitl Keshavlal Mehta (for short Chhaganlal Mehta.)

Mortgagor Motibhai ' also died leaving behind his son
Chimanrai Motibhai Baxi (for short Chimanrai). · Chimanrai died E
)..
leaving behind his widow Chhotiba and a daughter Taralaxmibai.
On September 12, 1950 Taralaxmi sold her right, title and interest
1' 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 Har.bhai Patel (for short
- Narandas). F
It appears that during the life time of Chimanrai Ganpatram
the mortgagee had sent a notice, Ext. 77, dated 15th of April, 1913
to Cbimanrai 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 G
needed and the same should be got done by him or be should pay
the mortgage amount and redeem the property. On receipt of this
letter Cbimanrai made the following endorsement :

"During the lifetime of my father, I had become H
separated from him without taking any kind of the move-
able or immoveable property belonging to him and even
. 170 SUPREME COURT REPORTS [ 1982] 2 s.c.R.
A after bis 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
B 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
c redeem the mortgage in question. On this notice similar endorse-
ment 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 Ganptrafll. 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 pro-
. perty of his father, Motibhai, during his lifetime and hence she had
no concern with the property of Motibhai. It was furthe~ stated
that her own mother Chhotiba was alive (in October 1933) and,
E 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
of the mortgagee's rights, Chhaganlal Keshavlal Mehta, as the 1st
F defendant, and Vamanrao Laxmanrao Nirkhe, as the 2nd defendant,

The claim was resisted by the !st defendant on grounds that
the plaintiff had no right to redeem inasmuch as his predecessor in
interest, Chimanrai, his widow Chhotiba and his daughter
G 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. I was not
in possession of the property as a mortgagee but as an absolute
H owner thereof. The defendant No. I, who claims through
Ganpatrdm's son Chhotalal, was also an absolute owner and conti-
nued to remain in possession from 1933-34 as such. As an abso-
C.K. METHA v. P.N. HARIBHAI v. (Misra, J.) 171

lute owner he carried out repairs to the mortgaged property. He A
y)_..4 +
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 c
prove that he had purchased the property benami in the name of

- Shantilal and that afterwards Shantilal had passed deed of conve-
yance 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 D
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. 3374-2-0 and, therefore, if the plaintiff was to be
allowed to redeem the property he would have to pay that amount E
in addition to the mortgage conside~ation. The suit was dismissed
by the trial court on the ground that the plaintiff bad no right to
redeem.

Feeling aggrieved the plaintiff went up in appeal, and the
F
defendant No. I 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 redemp-
tion benami in the name of Shantilal and that Shantilal had executed
a (deed of conveyance, Ext. 66, in favour of the plaintiff and, G
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 defendent No. I challenged the remand order by
H
172 SUPREME COURT REPORTS (1982] 2 S.C.R.

A 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.
B
Consequent upon the order of remand the Joint Civil Judge,
Jr. Division, decided oti:J.er issues against the p·laintiff. 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
c to the plaintiff or his predecessor in interest. He further held that
the suit was barred by time and estoppel, and that defendent No. l
had spent a substantial amouat on repairs. On these findings he
again dismissed the suit by his judgment dated 21st of August,
1958.
-
D The plaintiff again took up the matter in appeal,

It appears that during the pendency of the appeal Vai:nanrao,
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
E 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
F 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 defen-
dant No. l on repairs and that the suit was neither barred by time
nor by estoppel. The appeal was, however, dismissed as against
defendant No. 2.
G
The defendant No. 1 challenged the judgment and decree of
the Assistant Judge before the High Court and only two contentioni
were raised before it: (I) 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
H extinguished because of abatement of the suit against Vamanrao
and hii heiri, the 1mit against defendant No. 1, the other co-mort-
C.K. MEHTA v. P.N. HARJBHAI (Misra, J.) 173

gagee, must be dismissed; and (2) that the suit was barred by A
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 title to the plaintiff. In the
result the plaintiff had no right to file the suit for redemption. A B
learned Single Judge who heard the appeal repelled the first con-
tention 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 c
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 certi-
ficate of fitness for appeal to this Court. TheJlearned counsel for
the appellant has raised the same two contentions before us. We
take up the first point first. D

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 : E
.>.,
"Nothing in this section shall entitle a person interes-
ted 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
F
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 l 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
H
174 SUPREME COURT REPORTS {1982] 2 S.C.R.

A 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
B of the remaining mortgaged property, viz., the houses. When the
plaintiff filed the suit he impleaded both the mortgagees as defen-
dants Nos. I 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 pro-
..
perty to the I st defendant. A similar statement was made by
c Mr. Oza, counsel for the plaintiff in the High Court who further
stated that in no event hereafter would the plaintiff se11k 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 seve-
-
rance of the two properties by Gan pa tram was recognised by the
D 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 mort-
gagor for redemption of the propert1, 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
E 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. This principle was recognised in a Full Bench
decision in Motilal Ycdav v Scm1il B£Char.(1) If one of the defen-
dants in a suit dies and his heirs are not brought on record the suit
F 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. Jn 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. I
G 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 [as it was incum-
bent on the plaintiff to have impleaded all the mortgagees as a
H party. But if the defendant aid not contest the suit at any stage,

(I) [1930] 54 Born. 625.
C.K. MEHTA v. P.N. HARIBHAI (Misra, J.) 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 justi-
fied in holding that the suit against the surviving defendant No. 1
was maintainable despite the a!:Jatement of the suit against the 2nd
defendant. We fully endorse the view taken by the Division Bench
of the High Court. B

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 c
- 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 be~n referred to in the earlier part of the judgment.
Whether these endorsements amount to relinquishment of their
I)
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
E
in somebody. Accordingly, after the death of Motibhai his pro-
perty 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 defendallt·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
F

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 endorse-
ments would amount to estoppel. G
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 H
or untrue. But estoppel creates an absolute bar. In this state of
176 SUPREME COURT REPORTS [1982] 2 S.C.R

A the legal position, if the endor~ement 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
B 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 1he dtalh of NotiH2i his rnn Chimanrai succeeded in law. . ..
To bring the case within the scope of estoppel as ; defined in
c section 115 of the Evidence Act : (1) there must be a representation
by a person or his authorised agent to another in any form a
declaration, act or omission; (7.) 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 repre-
sentation must have been meant to be relied upon; (4) there must
D 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 misrepresen-
E tation 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
F it was designed can avail himself of it. A person is entitled to plead
estoppel in bis own individual charactn and not as a repres<:ntative -
of his assignee.

None of these conditions have been satisfied in the instant
case, for example, no representation was made to defendant No. I.
G Therefore, be cannot plead estoppel. Secondly, the representation
was not regarding a fact but regarding a right of which defendent
No. I or his predecessor in interest had full knowledge or could
have known if he bad cared to know. It is difficult to say that
defendant No. I bas moved his position on account of the represen-
H tation made by the mortgagor or his heirs or assignees. On the
facts and circumstances of this case it is not possible to hold that
C.K. MEHTA v. P.N. HARIBHAJ (Misra, J.) 177

ingredients of section 115 of the Evidence Act have been fulfilled. A
,,.... . 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.
B
S.R. Appeal dismissed.

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