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PETITIONER: CHHAGANLAL KESHAVLAL MEHTA

       Vs.

RESPONDENT: PATEL NARANDAS HARIBHAI

DATE OF JUDGMENT11/12/1981

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1982 AIR  121            1982 SCR  (2) 166  1982 SCC  (1) 223        1981 SCALE  (3)1861

ACT:      Suit for  redemption of  mortgage-order  XXXIV  Rule  I Civil Procedure  Code-Right of  a co-mortgagor to redeem his own share,  section 60 of the Transfer of Property Act scope of-Abatement by  death of  parties-order XXlll  Rule 2 Civil Procedure Code.      Estoppel by  canduct-Section 115  of the  Evidence Act- Difference between admission and estoppel explained.

HEADNOTE:      Motibhai created  two mortgages  in respect of the same property in  the years 1871 and 1893 in favour of one Nanaji who died somewhere between 1 890 and 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.      Mortgagor Motibhai  also died  leaving behind  his  son Chimanrai. 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  who later on conveyed his right, title and  interest  in  the  property  to  the  respondent- plaintiff Narandas  Haribhai Patel.  During the life time of Chimanrai, Ganpatram,  the  mortgagee  had  sent  a  notice, Exhibit 77  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   and  6th  October  1933  to  Taralaxmibai daughter of Chimanrai and to Chhotiba, the widow to the same effect.  Both   Chhotiba  and   Taralaxmibai  denied   their liabilities. Narandas  after the purchase of the mortgagor’s

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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 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 of estoppel. The appeal and the cross-objection filed by the parties were 167 allowed by  the Assistant  Judge holding  that plaintiff had purchased the equity of 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-interest. He further  held that  the  suit  was  barred  by  time  and estoppel, and  that defendant  No. 1 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  defendant No.  I but dismissed as abated against defendant No.  2 and  it was  held that  the respondent  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  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.  1  also  filed  a  cross- objection. 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.      Dismissing the appeal, the Court ^      HELD: 1.  Under section  60 of the Transfer of Property Act, 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. [173 G]      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 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 mortgage  amount should be paid to the mortgagees who are actually before the court. [174 D-F]      Motilal Yadav  v. Samal  Bechar  (1930)  54  Bom.  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

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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]      3:2. A person may be a necessary party in a suit but he may not be a necessary party in the appeal. [175 A] 168      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  been   action  on   the  faith  of  that declaration,  act   or  omission,   that  is   lo  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  mis- representation 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 he  was aware  of the real state of affair or had means  of knowledge,  there can  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 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  or  untrue.  But  estoppel creates an  absolute bar.  Estoppel deals  with questions of facts 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 principle that there can be no estoppel against a statute. [175G, H- 176 B]      4:3. In the instant case (i) the ingredients of section 115  of  the  Evidence  Act  have  not  been  fulfilled.  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 lt is difficult to say that  defendant No.  ] has moved his position on account of the  representation made by The mortgagor or his heirs or assignees, [176 G-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1867 of 1970.      From the  judgment and  order dated  the 18th February, 197() of the Gujarat High Court in Letters Patent Appeal No. 6/60.      S. S.  Sheth, Ravinder  Narain, J.  B. Dadachanji, O.C. Mathur and Mrs. Anjali K. Verma for the Appellant.      Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta

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for the Respondent.      The Judgment of the Court was delivered by      MISRA, J. The present appeal by certificate is directed against the  judgment  of  the  High  Court  of  Gujarat  at Ahmedabad in 169 Letters Patent  Appeal No.  6 of  1966  dated  the  18th  of February, 1970 decreeing the suit for redemption.      The property  in  dispute,  situated  in  Baroda  City, originally belonged  to Motibhai Bapubhai Shibandi Baxi (for short Motibhai).  He created  a mortgage  with possession of the disputed  property  in  favour  of  one  Nanaji  Balwant Pilkhanewala (for  short Nanaji)  in 1871  for a  sum of Rs. 800. In  1890 a second 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  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 Chhotelal)  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 (for short Chhaganlal Mehta.)      Mortgagor Motibhai.  also died  leaving behind  his son Chimanrai Motibhai  Baxi (for  short  Chimanrai).  Chimanrai died leaving  behind  his  widow  Chhotiba  and  a  daughter Taralaxmibai. On  September  12,  1950  Taralaxmi  sold  her right, title  and interest  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  Haribhai  Patel  (for short Narandas).      It appears  that during  the  life  time  of  Chimanrai Ganpatram the  mortgagee had  sent a  notice, Ext. 77, dated 15th of  April, 1913  to Chimanrai  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  needed and the same should be got done by him or he should pay the mortgage amount and  redeem the  property. On  receipt of this letter Chimanrai made the following endorsement:           "During the  lifetime of  my father,  I had become      separated from  him without  taking  any  kind  of  the      moveable or  immovable property  belonging to  him  and      even 170      after his  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 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 Redeem the mortgage in question. On this notice

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similar endorsement  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  Ganpatram.  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 property of his father, Motibhai, during his lifetime and hence  she had no concern with the property of Motibhai. It was further stated that her own mother Chhotiba was alive (in  October  1933)  and,  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   For  the   mortgagee’s  rights,  Chhaganlal Keshavlal  Mehta,   as  the   1st  defendant,  and  Vamanrao Laxmanrao Nirkhe, as the 2nd defendant.      The claim was resisted by. the 1st defendant on grounds that the  plaintiff had  no right  to redeem inasmuch as his predecessor in  interest, Chimanrai,  his widow Chhotiba and his daughter  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.  1  was  not  in possession of the property as a mortgagee but as an absolute owner thereof.  The defendant  No.  1,  who  claims  through Ganpatram’s son  Chhotalal, was  also an  absolute owner and continued to  remain in  possession from 1933-34 as such. As an abso- 171 lute owner he carried out repairs to the mortgaged property. He 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  prove that  he had purchased the property benami  in   the  name  of  Shantilal  and  that  afterwards Shantilal had  passed deed  of conveyance 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 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-O  and, therefore,  if the  plaintiff was  to  be allowed to  redeem the  property he  would have  to pay that amount in  addition to  the mortgage consideration. The suit was dismissed  by the  trial court  on the  ground that  the plaintiff had no right to redeem.      Feeling aggrieved  the plaintiff went up in appeal, and

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the defendant  No. 1  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 redemption benami in the name of Shantilal and that Shantilal had executed a deed of conveyance,  Ext. 66,  in favour  of the  plaintiff  and, 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 defendant No. I challenged the remand order by 172 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.      Consequent upon  the order  of remand  the Joint  Civil Judge,  Jr.  Division,  decided  other  issues  against  the plaintiff. 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 to the  plaintiff or his predecessor in interest. He further held that the suit was barred by time and estoppel, and that defendant No.  I had  spent a substantial amount on repairs. On these  findings  he  again  dismissed  the  suit  by  his judgment dated 21st of August, 1958.      The plaintiff again took up the matter in appeal,      It appears  that during  the  pendency  of  the  appeal Vamanrao, 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 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  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 defendant No. 1 on repairs and that the suit  was neither  barred by  time nor  by estoppel. The appeal was, however, dismissed as against defendant No. 2.      The defendant  No. 1 challenged the judgment and decree of the  Assistant Judge  before the  High Court and only two contentions were  raised before  it: (1)  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 extinguished because of abatement of the suit against Vamanrao and his heirs, the suit against defendant No. 1, the other co-mort- 173 gagee, must  be dismissed;  and (2) that the suit was barred by 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

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title to  the plaintiff.  In the result the plaintiff had no right to  file the  suit for  redemption. A  learned  Single Judge who heard the appeal repelled the first contention 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 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  certificate  of fitness for  appeal to  this Court.  The learned counsel for the appellant was raised the same two contentions before us. We take up the first point first.      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 :           "Nothing in  this section  shall entitle  a person      interested 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 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  I 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 174      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  of  the  remaining  mortgaged property, viz.,  the houses.  When the  plaintiff filed  the suit he  impleaded both  the mortgagees as defendants Nos. 1 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 property to  the 1st defendant. A similar statement was made by Mr.  Oza, counsel for the plaintiff in the High Court who further  stated   that  in  no  event  hereafter  would  the plaintiff seek 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 severance of the two properties by Ganpatram  was recognised  by the 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 mortgagor for  redemption of the property, 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  mortgage  as  against  those

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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 Yadav v Samal Bechar.(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,  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 there is no difficulty in the suit proceeding against the surviving defendant No. 1 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 it was incumbent  on  the  plaintiff  to  have  impleaded  all  the mortgagees as  a party. But if the defendant did not contest the suit at any stage, 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  justified in  holding that  the suit  against the surviving defendant  No.  I  was  maintainable  despite  the abatement of  the suit  against the  2nd defendant. We fully endorse the  view taken  by the  Division Bench  of the High Court.      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 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 been referred  to in  the  earlier  part  of  the  judgment. Whether these endorsements amount to relinquishment of their 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 in somebody. Accordingly, after the death of Motibhai his property 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  defendant-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 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  endorsements would amount to estoppel.      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  or  untrue.  But  estoppel

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creates an absolute bar. In this state of 176 the legal  position, if the endorsement 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  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 the death of Motibhai his son Chimanrai succeeded in law.      To bring  the case  within the  scope  of  estoppel  as defined in  section ]  I 5  of the Evidence Act: t I ) there must be a representation by a person or his authorised agent to another  in any  form a declaration, act or omission; (2) 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 representation must have  been meant to be relied upon; (4) there must 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 misrepresentation 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 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.      None of  these conditions  have been  satisfied in  the instant case,  for example,  no representation  was made  to defendant  No.  1.  Therefore,  he  cannot  plead  estoppel. Secondly, 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 has  moved his  position on  account of the representation  made  by  the  mortgagor  or  his  heirs  or assignees. On the facts and circumstances of this case it is not possible to hold that 177 ingredients of  section 115  of the  Evidence Act  have been fulfilled. 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. S.R.      Appeal dismissed. 178