INDIRA BAI versus NAND KISHORE

Citation: [1990] SUPP. 1 S.C.R. 349 · Decided: 05-09-1990 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Judgment (excerpt)

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INDIRA BAI 
A 
v. 
NAND KJSHORE 
SEPTEMBER 5, 1990 
[K. JAGANNATHA SHETTY AND R.M. SAHA!, JJ.] 
B 
Indian Evidence Act,. 1872: Section 115-Estoppel-Basis of the 
principle-Applicability in regard to right of pre-emption-Exception in 
case it involves public right or interest. 
Rajasthan Pre-emption Act, 1966: Section 8-Rights of pre-
C 
emptor-Operation of rule of estoppel or waiver against such rights-
Non-service of notice by vendor-Effect of 
The appellant purchased certain properties by way of registered 
sale deeds. She constructed therein a godown and a two-storeyed build-
itJg with the knowle4ge and assistance of the respondent, who did not 
D 
§ay ~nY.thing about (he commo!l passage and had never expressed his 
intentfon to pre-empt the sales. 
Soon after the constructioIJ was over, the respondent sent a notice 
to the appellant claiming his right to pre-empt the sale. The appellant 
gave a reply to the notice. However, respondent filed a suit for pre-
E 
emption in reh1tion to (he sai4 properties. The appellant pleaded that 
the respondent was es(opped from cll!iming the pre-emption. Principle 
of waiver was also pleaded, rite Trial Court dismissed the suit of the 
respon!!en!, !!!ld he preferre!l an appeal ltefore tile District J!l!lge which 
w;is a!so <!is!l!!sse!l- -
~espondent preferred a regular second appeal before lite High 
court. The High Court allowed the appeal holding that the principles of 
estoppel and waiver had no application against the pre-emptor to pre-
empt the suit, and set aside tile orders of the Courts llelow, 
f 
Aggrieved against the High Court's order the appellant has pre-
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ferred this appeal, by special leave. 
Allowing the appeal, this Court, 
HELD: I. I Estoppel is. a rule of equity t1•nvi11g out of fl!irne~ 
s\rildng on behavi()ur deficient in good faith. I! operates as a check on 
H 
349 
A 
B 
c 
D 
350 
SUPREME COURT REPORTS 
I 1990) Supp. 1 S.C.R. 
spurious conduct by preventing the inducer from taking advantage and 
assailing forfeiture already accomplished. It is invoked and applied to 
aid the law in administration of justice. Bu! for it great many injustice 
may have been perpetrated. [162D-E) 
1.2 Legal approach of the High Court, that no estoppel could arise 
unless notice under Section 8 of the Rajasthan Pre-emption Act was 
given by the seller and pre-emptor should have had occassion to pay or 
tender price ignores the fallacy that Estoppel need not be specifically 
provided as it can always be used as a weapon of defence. [162G-H) 
2. There can be no estoppel against statute. Equity usually 
follows law. Therefore, that which is illegal cannot be enforced by 
resorting to rule of estoppel. Such an extension may be against public 
policy. The distinction between validity and illegality or the transaction 
being void is clear and well known. The former can be waived by 
express or implied agreement or conduct. But not the latter. [163D & F-G] 
Shalimar Tar Products Ltd. v. H.C. Sharma, AIR 1988 SC 145; 
Equitable Life Assurance Society of the United States v. Reed, 14 AC 
587; Bishan Singh v. Khazan Singh, AIR 1958 SC 838 and Radha 
Kish an v. Shridhar, AIR 1960 SC 1369, referred to. 
3. The provision in the Pre-emption Act requiring a vendor to 
E serve notice on persons having right of pre-emption is condition of 
validity of transfer, and therefore a pre-emptor could waive it. Failure 
to serve notice as required under the Act does not render the sale made 
by vendor in favour of vendee ultra vires. The test to determine the 
nature of interest, namely, private or public is whether the right which 
is renunciated is the right of party alone or of the public also in the sense 
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that th'e general welfare of the society is involved. If the answer is latter 
then it may be difficult to put estoppel as a defence. The Act does not 
provide that in case no notice is given the transaction shall be void. The 
objective is to intimate the pre-emptor who may be interested in getting 
himself substituted. It does not debar the pre-emptor from giving up 
this right. Rather in case of its non-exercise within two months, may be 
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for financial reasons, the right stands extinguished. It does not pass on 
to anyone. No social disturbance is caused. It settles in purchaser. 
Giving up such right, expressly or impliedly cannot therefore be said to 
involve any interest of community or public welfare so as to be in 
mischief of public policy. [163H; 164A-C] 
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Jethmal v. 

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