Sections 115–117 IEA vs Sections 121–123 BSA — Estoppel, Tenant Estoppel and Estoppel of Acceptor, Bailee or Licensee

In India, the estoppel provisions of the Indian Evidence Act, 1872 (IEA), Sections 115–117, became Sections 121–123 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) on 1 July 2024. The one substantive change is in Section 122: tenant estoppel now runs "during the continuance of the tenancy or any time thereafter".

At a glance

These are rules of evidence in civil and criminal proceedings alike; no offence or First Schedule classification is attached to them.

What changed

• Expanded — tenant estoppel (s.116 IEA → s.122 BSA). IEA: "shall, during the continuance of the tenancy, be permitted to deny". BSA: "shall, during the continuance of the tenancy or any time thereafter, be permitted to deny". The object of the bar is unchanged: the landlord's title "at the beginning of the tenancy".
• Identical — the licensee limb (s.116 IEA → s.122 BSA). "no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given." The India Code text of the IEA prints "there of"; the BSA prints "thereof", as do the Supreme Court's own reproductions of s.116 in Bansraj (p. 339) and Thangappan (p. 722).
• Minor edit — heading of s.122. India Code text of the IEA: "Estoppel of tenants and of licensee of person in possession". BSA: "Estoppel of tenant and of licensee of person in possession". Thangappan reproduces the IEA heading as "Estoppel of tenant", so the difference may lie in the India Code transcription rather than the enacted text.
• Identical — the general rule (s.115 IEA → s.121 BSA). The operative words, including "by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief", are unchanged. So is the illustration: A falsely leads B to believe land belongs to A, B buys it, A later acquires title, and "He must not be allowed to prove his want of title." The Gazette prints the illustration as one paragraph; the India Code text splits it in two.
• Minor edit — Explanations to s.123. The operative words of s.117 IEA and s.123 BSA are the same. "Explanation (1)" and "Explanation (2)" become "Explanation 1" and "Explanation 2"; their text is unchanged.
• Unchanged placement. All three sections sit in Chapter VIII, headed "Estoppel", in both Acts.

Statutory text (relevant extract)

Extract — Section 122, BSA (tenant limb):

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property;

Extract — Section 116, IEA (tenant limb, changed words):

… shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property;

Extract — Section 121, BSA:

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

How it works

Section 121 — estoppel by representation. Four elements appear in the text:

1. A declaration, act or omission by one person.
2. It intentionally caused or permitted another to believe a thing to be true.
3. The other person acted upon that belief.
4. The bar applies in a suit or proceeding between the two of them or their representatives. It binds "he" and "his representative"; on a reading of the text, it does not bind strangers.

In B.L. Sreedhar the Supreme Court described estoppel as based on the maxim that a party is not to be heard to allege the contrary (p. 611), and held that although described as a rule of evidence it "may have the effect of creating substantive rights as against the person estopped" (p. 612).

Section 122 — tenant and licensee. Two limbs:

1. Tenant limb. Persons bound: the tenant of immovable property and any "person claiming through such tenant". Period: "during the continuance of the tenancy or any time thereafter". What cannot be denied: that the landlord had "at the beginning of the tenancy, a title to such immovable property".
2. Licensee limb. Person bound: one who "came upon any immovable property by the licence of the person in possession". What cannot be denied: that the licensor "had a title to such possession at the time when such licence was given". The focus is possession, not ownership (Bansraj, pp. 340–341).

Section 123 — acceptor, bailee, licensee. An acceptor cannot deny that the drawer had authority "to draw such bill or to endorse it". A bailee or licensee cannot deny that the bailor or licensor had authority "at the time when the bailment or licence commenced". Explanation 1 preserves the acceptor's right to show the bill was not really drawn by the person who appears to have drawn it. Explanation 2 lets a bailee who has delivered the goods to someone else prove that person's right as against the bailor.

What this means in practice

For a landlord suing for eviction or rent. Plead the tenancy and the tenant's entry under it. Under s.122 the tenant cannot dispute your title as it stood when the tenancy began. On a reading of the new words, that bar is no longer confined to the period of the tenancy; it also applies "any time thereafter", for example after notice to quit.

For a tenant. The bar concerns title "at the beginning of the tenancy". Thangappan (pp. 722–723) held that where the landlord loses title after the tenant's induction and the tenant faces eviction by a paramount title holder, a denial of title is not covered by s.116. Section 122 keeps the words "at the beginning of the tenancy"; on a reading of the text, that exception survives. A denial of the landlord's title from the very inception, as in Thangappan, remains barred. Vashu Deo (pp. 178–179) held that a tenant's obligation to restore possession ends once the landlord is evicted by a paramount title holder, and that the party setting up that defence must prove it.

For a licensee. If you came on the premises by leave of the person then in possession, you cannot dispute that person's title to possession at the date of the licence (s.122, second limb). An argument that the licensor was not the owner misses the point on which Bansraj turned.

For a party relying on s.121. Prove the representation, that it was intended to be (or knowingly permitted to be) believed, and your action on it. The bar operates only between the parties and their representatives.

For an advocate in a pending case. Check the date the proceeding was instituted. Proceedings pending on 1 July 2024 apply s.116 IEA without "or any time thereafter" (s.170(2) BSA).

Judgments that still matter

BSA ss.121 and 123 repeat the operative words of IEA ss.115 and 117, and the licensee limb of s.122 repeats s.116. On a reading of the text, judgments on those words remain relevant. Judgments on the tenant limb must be read with the added words "or any time thereafter". None of the judgments below construes the BSA.

S. Thangappan v. P. Padmavathy, [1999] Supp. 1 S.C.R. 715 — 24 August 1999. Two-Judge Bench (A. P. Misra and N. Santosh Hegde JJ.). A tenant inducted in 1962 stopped paying rent, claiming a temple was the true owner. The Court held that s.116 "puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy" (p. 722). It added that if the landlord loses title after the tenant's induction and the tenant is threatened with eviction by a subsequently acquired paramount title, the denial is not covered by the estoppel (p. 723). The tenant's denial here went back to the inception and was "forbidden under Section 116" (p. 723). The appeals were dismissed (p. 724). Why it matters now: it marks the boundary of the bar — title at the beginning of the tenancy — which s.122 keeps.

Vashu Deo v. Bal Kishan, [2002] 1 S.C.R. 171 — 11 January 2002. R. C. Lahoti J. delivered the judgment of a two-Judge Bench (with Brijesh Kumar J.). A sub-tenant claimed to have attorned directly to the owner after the owner sued his tenant. The Court identified three features of the rule of estoppel in s.116. The tenant is estopped from disputing the landlord's title at the beginning of the tenancy. The estoppel "continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord". And s.116 is not the whole law of estoppel between landlord and tenant (p. 178). It held that the rule applies between a tenant and a sub-tenant, and "ceases to have applicability once the tenant has been evicted" (p. 178). The appeals were dismissed (p. 183). Why it matters now: the BSA's "or any time thereafter" is textually wider than "so long as the tenancy continues". How it sits with the surrender and eviction limits in Vashu Deo is a question the Supreme Court has not yet answered in any judgment read for this page.

B.L. Sreedhar and Ors. v. K.M. Munireddy (Dead) and Ors., [2002] Supp. 4 S.C.R. 601 — 5 December 2002. Arijit Pasayat J. delivered the judgment of a two-Judge Bench (with Shivaraj V. Patil J.). A father who had consented to a re-grant of family land to his son later challenged sales made by the son. The Court said the general rule of estoppel "is enacted in Section 115" (p. 610). It described estoppel as a rule of evidence that may create substantive rights against the person estopped (pp. 612–613). It upheld the High Court's finding that estoppel applied, and the appeals were dismissed (p. 618). Why it matters now: it is a full statement of the general rule whose words s.121 BSA repeats.

Bansraj Laltaprasad Mishra v. Stanley Parker Jones, [2006] 2 S.C.R. 334 — 16 February 2006. Arijit Pasayat J. delivered the judgment of a two-Judge Bench (with Tarun Chatterjee J.). A person let into premises under a leave-and-licence agreement later pleaded he had been in possession earlier under someone else. The High Court's Division Bench dismissed the licensor's suit, stressing the licensor's lack of title. The Supreme Court held that the Division Bench had "erroneously laid stress on title … which has no relevance in the background of what is stated in Section 116"; "the stress is on the possession of the person who is in possession of the immovable property" (pp. 340–341). It remanded the matter to the Division Bench for fresh disposal without expressing a view on the merits (p. 341). Why it matters now: the licensee limb of s.122 BSA is word for word the same.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". The BSA came into force on 1 July 2024 (S.O. 849(E), 23 February 2024). A suit pending on that date applies s.116 IEA, without "or any time thereafter". Whether the new words reach a tenancy that ended before 1 July 2024, in a suit filed after that date, is a question the texts do not answer expressly. See which law applies to an offence before 1 July 2024 for the transition provisions across the three new codes.

Frequently asked questions

What are the BSA equivalents of Sections 115, 116 and 117 of the Evidence Act? From 1 July 2024, Section 115 IEA (estoppel) is Section 121 of the Bharatiya Sakshya Adhiniyam, 2023, Section 116 IEA (estoppel of tenant and licensee) is Section 122 BSA, and Section 117 IEA (estoppel of acceptor of a bill of exchange, bailee or licensee) is Section 123 BSA. All three sit in Chapter VIII, headed Estoppel.

What changed in tenant estoppel under Section 122 BSA? Section 116 IEA barred a tenant from denying the landlord's title at the beginning of the tenancy "during the continuance of the tenancy". Section 122 BSA says "during the continuance of the tenancy or any time thereafter", so on its words the bar also runs after the tenancy has ended. The licensee limb and the rest of the text are unchanged.

Is the general rule of estoppel in Section 121 BSA different from Section 115 IEA? No. The words are the same: when one person has, by declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon that belief, neither he nor his representative may deny its truth in a suit or proceeding between them. The illustration about land sold by a person without title is also repeated.

Can a tenant challenge the landlord's title if the landlord later loses it? In S. Thangappan v. P. Padmavathy ([1999] Supp. 1 S.C.R. 715, pp. 722-723) the Supreme Court held that Section 116 IEA bars denial of the landlord's title at the beginning of the tenancy, but not a denial based on the landlord losing title afterwards, where the tenant faces eviction by a paramount title holder. Section 122 BSA keeps the words "at the beginning of the tenancy".

When did tenant estoppel end under the old law? In Vashu Deo v. Bal Kishan ([2002] 1 S.C.R. 171, p. 178) the Supreme Court said the estoppel continues so long as the tenancy continues and unless the tenant has surrendered possession, and that it ceases once the tenant has been evicted. Whether the words "or any time thereafter" in Section 122 BSA change that has not been decided in any judgment read for this page.

Does a licensee have to prove the licensor's title? No. The second limb of Section 122 BSA bars a person who came on immovable property by the licence of the person in possession from denying that person's title to possession when the licence was given. In Bansraj Laltaprasad Mishra v. Stanley Parker Jones ([2006] 2 S.C.R. 334, pp. 340-341) the Supreme Court held that the stress is on possession, not title.

Can the acceptor of a bill of exchange deny the drawer's authority? No. Section 123 BSA, repeating Section 117 IEA, bars the acceptor from denying that the drawer had authority to draw or endorse the bill. Explanation 1 lets the acceptor deny that the bill was really drawn by the person by whom it purports to have been drawn.

Which Act applies to an eviction case pending on 1 July 2024? Section 170(2) BSA provides that any application, trial, inquiry, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. Such a case applies Section 116 IEA, without the words "or any time thereafter".

Related

• Sections 17–31 Evidence Act vs BSA — admissions and confessions
• Section 112 Evidence Act vs Section 116 BSA — presumption of legitimacy
• Sections 91–92 Evidence Act vs BSA — documentary evidence and exclusion of oral evidence
• Sections 101–104 Evidence Act vs BSA — burden of proof
• Criminal trespass and property disputes — BNS 329–334 vs IPC 441–462
• Evidence Act to BSA — full section mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Chapter VIII, Sections 121, 122 and 123; Sections 25 and 170; commencement from footnote 1 to Section 1 of the official text.
• Indian Evidence Act, 1872 (India Code text): Chapter VIII, Sections 115, 116 and 117; Section 31.
• Judgments read in full text (Veritect Supreme Court corpus, with the report PDFs): S. Thangappan v. P. Padmavathy (S_1999_1_715_724_EN.md); Vashu Deo v. Bal Kishan (2002_1_171_183_EN.md); B.L. Sreedhar and Ors. v. K.M. Munireddy (Dead) and Ors. (S_2002_4_601_618_EN.md); Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006_2_334_341_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.