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PETITIONER: SHA MULCHAND & CO.  LTD.(IN LIQUIDATION)

       Vs.

RESPONDENT: JAWAHAR MILLS LTD.

DATE OF JUDGMENT: 09/12/1952

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND BOSE, VIVIAN HASAN, GHULAM

CITATION:  1953 AIR   98            1953 SCR  351  CITATOR INFO :  RF         1954 SC 526  (36)  R          1964 SC 752  (14)  R          1965 SC 540  (9)  F          1967 SC 990  (4)  RF         1969 SC 474  (2)  R          1969 SC1335  (8,9,10)  RF         1977 SC 282  (17)

ACT:  Company-Forfeiture  of  shares-Necessity  of  due  notice- Application  by shareholder to rectify  register-Long  delay Acquiescence,  waiver  and laches-Abandonment  of  right  to question    validity    of    forfeiture-Application     for rectification  of register-Limitation Limitation Act,  1908, Arts. 48, 49, 120,181, applicability of Companies Act, 1913, ss. 38, 247.

HEADNOTE:     A private limited company of which G and S were the only two  members owned 5,000 shares in a Mill.  The company  did not  pay  the calls and the 5,000 shares held by  them  were forfeited  on  the 5th September, 1941, and  re-allotted  to other   persons  on  the  16th  November.   Notice  of   the forfeiture was sent to the company on the 10th September but this was returned undelivered.  In the meantime the  company was  struck off the Register under s. 247 of  the  Companies Act with effect from 9th September.  On the application of S the  company  was restored to the Register and  an  Official Receiver  was appointed on 16th February, 1945, to  wind  it up.  On the 5th March, 1946, the Official Receiver took  out a  summons  calling upon all parties to show cause  why  the share  register  of  the Mills should not  be  rectified  by restoring the name of the company to the register in respect of the 5,000 shares, as the forfeiture thereof was  invalid. The  trial  Judge held that the forfeiture was  invalid  for want  of  sufficient  notice, that  the  plea  of  estoppel, acquiescence  and laches raised by the Mills was  untenable, and  that  the application as governed by Art.  120  of  the Limitation Act and was not time-barred, and ordered that, as the advocates had agreed to such a course, 5,000 new  shares

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may  be  issued to the company.  The High  Court  on  appeal found that the forfeiture was invalid, that the  application was  not  time barred and that no  acquiescence,  waiver  or estoppel  had  been established, but held that  the  company had,  by  the  conduct  of G and S and  the  long  delay  in reviving  the company, abandoned its right to challenge  the forfeiture  and that there was also no legal basis on  which the order passed by the trial Judge could be supported.   On further appeal:    Held,  (i)  if the facts on record were  insufficient  to sustain  a plea of waiver, acquiescence or estoppel as  held by  both  the lower Courts, a plea of abandonment  of  right which  is  an  aggravated form of  waiver,  acquiescence  or laches and akin to estoppel cannot be sustained on the  same facts. 46 352 (ii) Whatever be the effect of mere waiver, acquiescence  or laches  on  the part of a person on his claim  to  equitable remedy  to enforce his- rights under an executory  contract, mere  waiver, acquiescence or laches which does, not  amount to  an  abandonment of his right or to an  estoppel  against him,  cannot disentitle that person from claiming relief  in equity in respect of his executed interests.     Prendergast  v. Turton ([18411 62 E.R. 807), Clarke  and Chapman  v.  Hart  ([1858] 6 H.L.C.  632),  Jones  v.  North Vancouver  Land  and  Improvement  Co.  ([1910]  A.C.   317) explained.   Garden  Gully United Quartz Mining  Company  v. Hugh Mclister ([1875] 1 App.  Cas. 39) relied on.    (iii)  There  was no evidence in the case of any  conduct on  the part of S or G subsequent to the date of  forfeiture and  anterior  to  the Mills changing its  position  to  its detriment, upon which a plea of abandonment of the right  to challenge the forfeiture could be based.    Smith, Stone and Knight v. Birmingham Corporation ([1939] 4 All E.R. 116) distinguished.    (iv)   On a proper construction of the statements made by the counsel,   the  form of the order to which  the  counsel had agreed could not     be challenged by the Mills.    (v)    The application was not governed by Arts. 48 or 49 of  the Limitation Act as a claim for rectification  of  the register  simpliciter does not necessarily involve  a  claim for  the return of the share scrips and there was no  prayer in  the  ease  for return of the scrips.     (vi) Article 181 applies only to applications under  the Civil  Procedure  Code,  and even if the  said  article  was applicable,  time began to run under the article  only  from the date on which the company knew of the forfeiture of  the shares;  and  as  the company bad  no  knowledge  until  9th September,  1941,  when it became defunct, and  the  company came  to life again only on 16th February,  1945,  knowledge could  not be imputed to the company before the latter  date and the application was therefore not barred under Art. 181.    (vii)  If  Art. 181 does not apply the only article  that could  apply  was Art. 120 and even under that  article  the application was not barred. Hansraj Gupta v. Official Liquidators, Dehra Dun,  Mussoorie Electric Tramway Co. ([1933] 60 I.A. 13), Hurdutrai  Jagdish Prasad  v. Official Assignee of Calcutta ([1948]  52  C.W.N. 343)  approved.   Asmatali  Sharif  v.  Mujahar  Ali  Sardar ([1948] 52 C.W.N. 64) and Sarvamangal Dasi v. Paritosh Kumar Das (A.I.R. 1952 Cal. 689) doubted.    BOSE J.-Waiver and abandonment are in their primary  con- text  unilateral  sets and except where statutory  or  other limitations  intervene unilateral acts in themselves  cannot

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effect  a  change  in  legal  status.   Consequently  it  is fundamental that 353 abandonment  and  waiver cannot unilaterally bring  about  a change in legal status in the absence of either a  statutory mandate  or  an  act of acceptance, express  or  implied  by another person.    There  is also a fundamental difference between  executed and executory interests in this connection.  A man who has a vested  interest and in whom the legal title lies does  hot, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there  is something more, namely inducing another  party  by his words or conduct to believe the truth of that  statement and to act upon it to his detriment, that is to say,  unless there is an estoppel, pure and simple.  It is only in such a case  that the right can be lost by what is  loosely  called abandonment  or  waiver, but even then it is not  the  aban- donment  or waiver as such which deprives him of  his  title but the estoppel which prevents him from asserting that  his interest  in the shares has not been  legally  extinguished, that  is to say, which prevents him from asserting that  the legal  forms which in law bring about the extinguishment  of his  interest  and pass the title which resides  in  him  to another, were not duly observed.

JUDGMENT:  CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 of 1951., Appeal from the Judgment and Order dated March 11, 1949,  of the  High Court of Judicature at Madras  (Satyanarayana  Rao and Viswanatha Sastri JJ.) in Original Side Appeal No. 3  of 1947,  &rising out of the Judgment and Order dated  November 15,  1946,  of  Clark J. and made in  the  exercise  of  the Ordinary  Original Civil Jurisdiction of the High  Court  in Application No. 599 of 1946.    M.    C.  Setalvad  (Attorney -General  for  India)  (A. Balasubramanian, with him) for the appellant.  N. Baja Gopala Iyengar for the respondent.   1952.   December 9. The Judgment of Mehr  Chand  Mahajan, Das and Ghulam Hasan JJ. was delivered by Das J. Vivian Bose J. delivered a separate Judgment.  DAS  J.-This appeal arises out of an application  made  by the  Official Receiver representing Sha Mulchand  &  Company Ltd.  (in  liquidation)  under  section  38  of  the  Indian Companies  Act  for  rectification of the  register  of  the Jawahar Mills Ltd.  Sha Mulchand & Company Ltd. (hereinafter referred to as  " the Company") was incorporated in 354 1937 as a private limited company.  At all material times it consisted  of two members,.  T. V. T.  Govindaraju  Chettiar and   K.   N.  Sundara  Ayyar.   The  Jawahar   Mills   Ltd. (hereinafter  called " the Mills") was also incorporated  in 1937  with  an authorised capital of Rs.  10,00,000  divided into  one  lac shares of Rs. 10 each.  The Company  was  the managing  agent of the Mills from its inception and  applied for  and was allotted 5,000 ten-rupee shares Nos. 1.5048  to 20047  on which Rs. 5 per share had been paid.  The  Company continued to act as the managing agent of the Mills till the 30th  June,  1939, on which date it  resigned  the  managing agency.  Prior to the Company’s resignation the two  members of the Company had entered into an agreement with one M.  A. Palaniappa  Chettiar,  a partner of  the  incoming  managing

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agency firm, up on certain terms which need not be  referred to in greater detail.   Within  two months after the change of  managing  agents, the  Mills made two calls, namely, one on the  22nd  August, 1939, for Rs. 2 per share payable on the 1st October,  1939, and  the other on the 1st October, 1939, for Rs. 3  payable, on  the 1st December, 1939.  The Company did not pay  either of  the  calls.   On the  23rd  January,  1940,  Govindaraju Chettiar  was  adjudged  insolvent  on  the  application  of Sundara Ayyar.  This insolvency of Govindaraju Chettiar  was eventually annulled in 1944.  During this period Govindaraju Chettiar,  in law’, ceased to be a director of the  Company, although  it  is alleged that he nevertheless  continued  to take part in the management of the Company.  By  a  resolution of the Board of Directors of  the  Mills passed  on  the 12th August, 1940, the new  managing  agents were  empowered to give notices to such persons as  had  not paid the allotment money and the call money within the  date fixed  and  to intimate them that in  default  their  shares would  be’  forfeited.   A notice was  issued  on  the  16th September,  1940,  and two copies thereof are said  to  have been sent to Sundara Ayyar and Govindaraju Chettiar. 355   No payment having been made, the 5,000 shares held by the Company  were  forfeited  by a resolution of  the  Board  of Directors  of  the Mills.  The auditor of the  Mills  having pointed out that the purported forfeiture was irregular  and illegal, this forfeiture was cancelled.   By  a  resolution  passed  by  circulation  on  the  26th February, 1941, the Board of Directors of the Mills resolved that  a notice be sent to the Company informing it  that  it was in arrears with calls to the extent of Rs. 25,000,  that the  amount must be paid on or before the 31st March,  1941, and  that,  in default, its shares would  be  forfeited.   A notice dated the 15th March, 1941, was accordingly addressed to  the  Company and sent by registered  post  with  acknow- ledgment  due.   It  appears that the  notice  was  actually posted  on  the  17th  March,  1941,  and  was  received  by Govindaraju  Chettiar on the 20th March, 1941.  The  Company did  not  pay the arrears of calls.  On the  5th  September, 1941,  the Board of Directors of the Mills resolved  that  " the  5,000 shares Nos. 15048-20047 standing in the  name  of the  Company  have been forfeited." On the  10th  September, 1941, the Mills wrote a letter to the Company informing  the latter that the Directors of the Mills bad at their  meeting held on the 5th September, 1941, forfeited the 5,000 shares. There  is  no  dispute that this letter which  was  sent  by registered  post  was  returned  undelivered.   On  the  1st October, 1941, an entry was made in the share ledger of  the Mills  recording  that the 5,000 shares of the  Company  had been  forfeited.   On the 16th November, 1941,  these  5,000 shares  were reallotted to 14 different persons and  on  the 17th  November,  1941,  a letter was  sent  to  the  Company intimating that the forfeited shares had been reallotted and calling  upon the Company to send back to the Mills all  the documents  relating to the original allotment of  the  5,000 shares to the Company.  In the meantime on the 26th  August, 1941,  by  an  order made by the Registrar  of  Joint  Stock Companies  the  Company  was  struck  off  the  register  of companies under section 247 356 of  the Indian Companies Act.  This order of ’the  Registrar was published in the Official Gazette on the 9th  September, 1941,  i.e., four days after the shares were  forfeited  and one day before the notice intimating the fact of  forfeiture

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was sent in a registered cover which was, however,  returned undelivered.  Under section 247 (5) of the Indian  Companies Act the Company stood dissolved on and from the date of such publication.   The  Mills having come to know of the dissolution of  the Company  applied  to the High Court (O.P. No.  10  of  1942) praying  that  the name of the Company be  restored  to  the register  of companies and that after such  restoration  was duly  advertised  the Company be wound up by the  Court.   A similar application was made on the 11th December, 1941,  by the  Income-tax authorities (O.P. No. 11 of 1942).   On  the 23rd  February,  1942,  Sundara  Ayyar  filed  an  affidavit contending,  amongst other things that the Directors of  the Mills had no power to forfeit the shares.  On the 2nd April, 1942, however, O.P. No. 10 of 1942 was compromised, and  the Mills  received  Rs.  11,000  from  Sundara  Ayyar  in  full satisfaction  of their -claim against the Company.   On  the 25th  June, 1942, O.P. No. 11 of 1942 was  also  compromised and  Sundara  Ayyar  paid up the  claim  of  the  Income-tax authorities.   The  two  petitions for  restoration  of  the Company were accordingly dropped.    On  the  27th  June, 1942, Sundara Ayyar  filed  a  suit against  the Mills and others including Palaniappa  Chettiar claiming  a declaration that the forfeiture by the Mills  of the  5,000 shares was illegal and inoperative and  directing the  Mills to pay to the plaintiff and the  third  defendant representing the estate of Govindaraju Chettiar the value of the  forfeited shares with dividend or interest thereon  and directing  Palaniappa Chettiar to pay the plaintiff and  the third  defendant the sum of Rs. 25,000.  This suit was  dis- missed  on  the  17th November, 1943,  on  the  ground  that Sundara  Ayyar,  who  was only a  member  of  the  dissolved Company, had no locus standi and could 357 have  no relief personally.  Sundara Ayyar filed  an  appeal therefrom  which was dismissed as against the Mills but  the case  was remanded to the trial Court for the trial  of  his claim as against the fourth defendant, Palaniappa Chettiar.    During the pendency of Sundara Ayyar’s appeal he on  the 12th  August,  1944,  filed O.P. No. 199  of  1944  for  the restoration  of the Company.  On that application  an  order was  made on the 16th February, 1945, that the name  of  the Company  be restored to the register of companies, that  the Company  be deemed to have continued in existence as if  its name  had  never been struck off, that such  restoration  be advertised and that the Company be wound up by the Court and the Official Receiver do forthwith take charge of the assets and liabilities of the Company.  It was further ordered that the Official Receiver do recognise that as between the Mills and the Company, the Mills should be regarded as having been duly  paid  only  Rs. 11,000 out of the total  debt  of  Rs. 25,550  due’  to the Mills.  By an order made  on  the  21st January,  1946, leave was given to the Official Receiver  to take appropriate steps regarding the 5,000 shares  purported to have been forfeited by the Mills.  Accordingly on the 5th March,  1946,  the  Official Receiver, in the  name  of  the Company,  took  out  the present summons  calling  upon  all parties  concerned to show cause why the share  register  of the  Mills should not be rectified by restoring the name  of the Company to the said register in respect of 5,000  shares numbering  15048-20047  and why such  other  alternative  or consequential relief should not be granted to the  applicant as  might be just and necessary in the circumstances of  the case.   The  Mills contended, in opposition to that  application,

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that  the  shares  had been  properly  forfeited,  that  the Company was, on the principles of estoppel, acquiescence and laches, precluded from challenging the forfeiture, that  the application  was  barred by limitation and that  the  shares having  already been allotted to other persons, who had  not been made 358 parties  to the application, order for rectification of  the register in respect of those shares could be made.   The summons came up for hearing before Mr. Justice Clark. The learned Judge, by his judgment dated the 15th  November, 1946, held that the notice dated the 15th March, 1941, which was  posted  on the 17th March, 1941, and delivered  on  the 20th  March 1941, and on which the resolution of  forfeiture passed  on the 5th September, 1941, was founded, was not  in conformity with the provisions of articles 29 and 30 of  the articles  of  association of the Company which  required  14 clear days’ notice.  The learned judge further held that the plea  of  estoppel, acquiescence and laches  was  untenable, that  article 49 of the Limitation Act did not apply  either expressly  or by way of analogy to the  present  application and that article 120, which prescribed a period of six years from  the  date  when the right to sue  accrued,  would,  by analogy,  apply  to  the present  proceedings  and  that  so applied  the present proceedings must be held to  be  within time.   Having  disposed  of the controversy  on  the  above points  it remained to consider the form of the order  which could  properly  be made on the application.   It  is  quite clear that the specific shares having already been  allotted to  14  different persons and those persons not  being  then before the Court, the Court could not then and there  direct rectification  of the register by restoring the name of  the Company  to  the share register of the Mills in  respect  of those -identical shares.  There was nevertheless nothing  to prevent  the Court even at that stage to give notice of  the application  to  the  persons to whom the  shares  had  been reallotted  and/or those who were holding the shares at  the time  and after thus adding them as parties thereto to  make the appropriate order of rectification and, if thought  fit, to also award damages to the Company.  There were,  however, 16,000 shares of Rs. 10 each yet unissued.  After discussing the  matter with learned advocates on both sides  to  which, discussion a reference will be made hereafter the 359 learned  Judge,  in the belief that the  advocates  for  the parties  had  agreed as to the form of the  order,  directed that  the Mills do rectify their register by  inserting  the name  of the applicant Company as owner of 5,000 shares  out of  the  unissued  shares of Rs. 10 each and  that  on  such insertion  the  Company do on or before  the  15th  January, 1947, pay to the Mills Rs. 25,000, being the amount of calls in arrears.    Pursuant  to  further directions given  by  the  learned Judge  on  the  7th January, 1947, the  Mills  on  the  10th January,  1947,  received  Rs.  25,000  and  allotted  5,000 shares.  Although the Mills thus acted upon the order  they, nevertheless,  on  the 6th February, 1947, filed  an  appeal against the order.  That appeal came up for hearing before a Bench consisting of Satyanarayana Rao and Viswanatha  Sastri JJ.   It was not disputed before the appeal Court  that  the forfeiture was invalid, but the contentions urged were  that by  reason  of  the irregularity  the  forfeiture  was  only voidable  and not void and that as the forfeiture  was  only voidable it was open to the Company to waive or abandon  its right to dispute the validity of the forfeiture and that  in

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fact,  by  its conduct, it had done so, that  the  claim  to rectify  the register was barred by limitation and  that  in any  event rectification was impossible because  the  shares were   not  available  in  specie,  the  same  having   been reallotted  to other persons.  The learned Judges  by  their judgment   dated  the  11th  March  1949,  held  that   the- forfeiture was invalid, that the application was not  barred by  limitation  for  it was covered by article  120  of  the Limitation Act.  The learned Judges recognised that where  a period  of  limitation  was  prescribed  for  a  suit  or  a proceeding  mere  delay was no bar unless it was of  such  a character  as would lead to an inference of  abandonment  of the  right  or unless it: was established  that  the  person against  whom  the action or proceeding was  instituted  was actually  prejudiced by reason of such delay.   The  learned Judges agreed with the 47 360 trial Court that no plea of acquiescence, waiver or estoppel had  been  established  in the present  case.   The  learned Judges,   nevertheless,   thought  that  the   question   of abandonment  of the right and prejudice to the appellant  by reason  of  the delay stood on a  different  footing.   Then after   referring  to  certain  conduct  on  the   part   of Govindaraju  Chettiar and Sundara Ayyar the  learned  Judges concluded  that by reason of the long delay in reviving  the Company  and in taking proceedings under section 38  of  the Indian  Companies  Act  the Mills had been  induced  to  put themselves in a situation in which it became impossible  for them  to restore the Company to the register in  respect  of those 5,000 shares and that in view of this conduct, if  the applicants  were Govindaraju Chettiar and Sundara Ayyar,  it would  have  been  a case in which relief  would  have  been refused  in  the light of the principles which  the  learned Judges  deduced from the judicial decisions referred  to  by them.   Then  referring to the decision in  Smith,  Stone  & Knight v. Birmingham Corporation (1) and certain text  books the learned Judges took the view that it was too late in the day to adhere to the strict formalism laid down in Salomon’s case (2) and that as the tendency of modern decisions was to lift  the  veil of corporate personality and  disregard  the corporate  form,  the conduct of its only  two  members  had disentitled   the  company  from  claiming  the  relief   of rectification.   The learned Judges further held that  there was  no legal basis on which the form of the order could  be supported.   On reading the judgment of the trial Judge  and after  hearing the senior advocate appearing for  the  Mills the  learned  Judges felt unable to agree that  the  learned advocate had agreed to the substitution of, the 6,000 out of the  unissued  shares for the 5,000 forfeited  shares.   The resilt was that the appeal was allowed and the order of  the trial  Judge  was set aside.  The Company  by  its  Official Receiver  has  now  come up before  this  Court  with  leave granted by the High Court (1) (1939) 4 All E. R. 116. (2) [1897] A. C. 22. 361 under sections 109 and 110 of the Code of Civil Procedure.   The  appeal  Court,  it will be  observed,  reversed  the decision  of the trial Judge and decided the appeal  against the  Company  on  two grounds only,  namely,  (1)  that  the Company had by the conduct of its two members abandoned  its right to challenge the forfeiture, and (2) that the form  of the  order could not be supported as one validly made  under section  38  of  the  Indian  Companies  Act.   The  learned

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AttorneyGeneral,  appearing in support of this  appeal,  has assailed  the soundness of both these grounds.  The  learned Attorney-General  contends, not without considerable  force, that having, in agreement with the trial Coury, held that no plea   of   acquiescence,  waiver  or  estoppel   had   been established  in this case, the appeal Court should not  have allowed  the Mills to raise the question of  abandonment  of right  by the Company, inasmuch as no such plea of  abandon- ment  had  been  raised either in the  Mills’  affidavit  in opposition  to  the Company’s application or  in  the  Mills grounds  of appeal before the High Court.  Apart from  this, the  appeal Court permitted the Mills to make out a plea  of abandonment  of right by the Company ,as distinct  from  the pleas  of  waiver, acquiescence and estoppel and  sought  to derive  support for this new plea from the well known  cases of Prendergast v. Turton(1), Clark & Chapman v. Hart(2)  and Jones  v.  North Vancouver Land and Improvement,  Co.(3).  A perusal of the relevant facts set out in the several reports and the respective judgments in the above cases will clearly indicate that apart from the fact that some of them  related to collieries which were treated on a special footing, those cases  were really cases relating to waiver or  acquiescence or estoppel.  Indeed in Clarke’s case (2) while Lord Chelms- ford referred to the decision in Prendergast’s case(1) as  a case of abandonment of right, Lord Wensleydale read it as an instance  of acquiescence and estoppel.  Unilateral  act  or conduct of a person, (1) 62 E.R. 807.                 (3) [1910] A.C. 317. (2)  6 H.L.C. 632; 10 E.R. I443. 362 that  is  to sky act or conduct of one person which  is  not relied  upon by another person to his detriment, is  nothing more than mere waiver, acquiescence or laches, while act  or conduct of a person amounting to an abandonment of his right and  inducing another person to change his position  to  his detriment certainly raises the bar of estoppel.   Therefore, it  is  not intelligible how, having held that  no  plea  of waiver,  acquiescence  or estoppel had been  established  in this case, the appeal Court could, nevertheless, proceed  to give  relief to the Mills on the plea of abandonment by  the Company  of  its rights.  If the facts on  record  were  not sufficient  to sustain the plea of waiver,  acquiescence  or estoppel,  as hold by both the Courts, we are unable to  see how  a plea of abandonment of right which is  an,aggravated, form of waiver, acquiescence or laches and akin to  estoppel could  be  sustained  on  the  self-same  facts.    Further, whatever  be  the  effect of mere  waiver,  acquiescence  or laches  on  the part of a person on his claim  to  equitable remedy to enforce his rights under an executory contract, it is  quite  clear,  on the  authorities,  that  mere  waiver, acquiescence or laches which does not amount to an  abandon- ment  of  his right or to an estoppel  -against  him  cannot disentitle  that  person from claiming relief in  equity  in respect  of his executed and not merely executory  interest. See  per Lord Chelmsford in Clarke’s case (1) at  page  657. Indeed,  it has been held in The Garden Gully United  Quartz Mining Company v. Hugh McLister(2) that mere laches does not disentitle the holder of shares to equitable relief  against an invalid declaration of forfeiture.  Sir BarnesPeacook  in delivering  the  judgment of the Privy Council  observed  at pages 56-67 as follows:-   There is no evidence sufficient to induce their Lordships to  hold that the conduct of the plaintiff did amount to  an abandonment  of his shares, or of his interest  therein,  or estop  him  from  averring  that  he  continued  to  be  the

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proprietor  of  them.   There certainly is  no  evidence  to justify such a conclusion (1) 6 H.L.C. 632: 10 E.R. 1443. (2) L. R.1 App.  Cas. 39. 363 with  regard to his conduct subsequent to the  advertisement of  the  30th of May, 1869.  In this case, as  ’In  that  of Prendergast  v.  Turton(1),  the  plaintiff’s  interest  was executed.   In other words, he had a legal interest  in  his shares  and  did not require a declaration of trust  or  the assistance of a Court of Equity to create in him an interest in  them.  Mere laches would not, therefore, disentitle  him to equitable relief:, Clarke and Chapman v. Hart(2).  It was upon  the ground of abandonment, and not upon that  of  mare laches, that Prendergast v. Turton(1) was decided."   Two  things are thus clear, namely, (1) that  abandonment of  right  is much more than mere  waiver,  acquiescence  or laches  and  is something akin to estoppel if  not  estoppel itself,  and  (2) that mere waiver, acquiescence  or  laches which is short of abandonment of right or estoppel does  not disentitle the holder of shares who has a vested interest in the  shares from challenging the validity of  the  purported forfeiture of those shares.  In view of the decision of  the Courts below that no case of waiver, acquiescence, laches or estoppel has been established in this case it is  impossible to  hold  that the principles deducible  from  the  judicial decisions  relied upon by the appeal Court have  disentitled the  Company  to relief in this case.  The matter  does  not rest  even  here.  Assuming., but not  conceding,  that  the principle  of  piercing the veil  of  corporate  personality referred  to  in  Smith, Stone & Knight  v.  The  Birmingham Corporation  (3) can at all be applied to the facts  of  the present case so as to enable the Court to impute the acts or conduct  of  Govindaraju Chettiar and Sundara Ayyar  to  the Company,  we  have  yet to inquire  whether  those  acts  or conduct  do establish such abandonment of rights  as  would, according  to the decisions, disentitle the  plaintiff  from questioning  the  validity of the purported  declaration  of forfeiture.  There can be ’no question that the abandonment, if any, must be inferred from acts or conduct of the Company as  such’  or, on the above principles, of its  two  members subsequent to (1) 62 E.R. 807.           (3) (1939) 4 All E.R. 116. (2)  6 H.L.C. 632: 10 E.R. I443. 364 the date of the forfeiture, for it is the right to challenge the  forfeiture  that is said to have been  abandoned.   ’In order to give rise to an estoppel against the Company,  such acts or conduct amounting to abandonment must be anterior to the  Mills’  changing its-position to  its  detriment.   The resolution  for forfeiture was passed on the 6th  September, 1941.   The five thousand forfeited shares were allotted  to 14  persons  on-the  16th November, 1941,  and  it  is  such ,allotment  that  made it impossible for the Mill&  to  give them back to the Company.  In order, therefore, to sustain a plea  of abandonment of right or estoppel, it must be  shown that the Company or either of its two members had done  some act  and/or had been guilty of some conduct between the  6th September,  1941, and the 16th November, 1941.  No such  act or  conduct  during such period has been or can  be  pointed out.   On being pressed advocate for the Mills refers us  to the conduct of Sundara Ayyar in opposing O.P. No. 10’of 1942 filed by the Mills and O.P. No. 11 of 1942 by the Income-tax authorities  for  restoring the Company to the  register  of companies  and it is submitted that such  conduct  indicates

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that  Sundara  Ayyar  had  accepted  the  validity  of   the forfeiture.   This was long after the Mills  had  reallotted the forfeited shares.  Further, a perusal of paragraph 9  of the  affidavit in opposition filed by Sundara Ayyar in  O.P. No.  10 of 1942 will clearly show that he not only  did  not accept the forfeiture as valid but actually repudiated  such forfeiture  as wholly beyond the competence of the Board  of Directors  of  the  Mills.   The  reason  for  opposing  the restoration of the Company may well have been -that  Sundara Ayyar  desired, at all cost, to avoid his eventual  personal liability as a shareholder and director of the Company.   In any case, Sundara Ayyar did make it clear that he challenged the  validity of the purported forfeiture of shares  by  the Mills and in this respect this case falls clearly within the decision  in  Clarke’s case (1) relied upon  by  the  appeal Court.  The only other conduct of Sundara Ayyar relied on by learned advocate for the Mills in (1)  6 H.L.C. 632; 10 E.R. 1443. 365 support of the appeal Court’s decision on this point is that Sundara  Ayyar  proceeded with his suit  against  Palaniappa Chettiar even after his suit as well as his appeal had  been dismissed  as  against  the Mills.  In  that  suit  Sundara. Ayyar sued the Mills as well as Govindaraju Chettiar and the Official Receiver of Salem representing the latter’s  estate and Palaniappa Chettiar.  In the plaint itself the  validity of the forfeiture was challenged.  The claim against Palani- appa  Chettiar was in the alternative and it was founded  on the  agreement  of  the  30th  June,  1939.   The  suit  was dismissed as against the Mills only on the technical  ground that Sundara Ayyar had no locus standi to maintain the suit. The  contention  of  the Company  that  the  forfeiture  was invalid  and  the  claim  for  rectification  of  the  share register  of the Mills by restoring the name of the  Company cannot  possibly  have  been  affected  by  this   decision. Sundara Ayyar’s claim against Palaniappa Chettiar was  based on  the  agreement  of  1939 and it  was  formulated  as  an alternative personal claim.  In view of the clear allegation in  the  plaint  that the forfeiture  was  invalid  and  not binding  on  the Company, the continuation of  the  suit  by Sundara   Ayyar  to  enforce  his  personal  claim   against Palaniappa Chettiar cannot be regarded as an abandonment  by Sundara  Ayyar of the right of the Company.  It must not  be overlooked that the Company stood dissolved on that date and Sundara  Ayyar had no authority to do anything on behalf  of the  Company.   In  our  opinion there  is  no  evidence  of abandonment of the Company’s right to challenge the validity of the purported forfeiture.   The  second point on which the appeal Court  decided  the appeal  against the Company was that the form of  the  order made  by  the  trial Court could not  be  supported  as  one validly  made under section 38 of the Indian Companies  Act. It  will be recalled that having disposed of all the  points of  controversy  against  the Mills and  in  favour  of  the Company  the  trial Judge had to consider the’ form  of  the order Which could properly be made in favour of the 366 Company.    In  the  summons  the  Company  had  asked   for rectification  of the register by restoring the name of  the Company to the register in respect of 5,000 shares numbering 15048 to 20047.  It was agreed by learned advocates on  both sides  before  the  trial  Court  that  it  would,  in   the circumstances,   be   impossible  to  make  an   order   for rectification  with respect to those specific shares  which, as already stated, had been reallotted to other persons  who

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were  not  parties to the proceedings.  The Mills  had  also reduced  its capital by having the face value of the  84,000 shares  which  had been issued reduced by  repaying  to  the shareholders  Rs.  5  in respect of each  of  those  shares. There  were, however, 16,000 unissued shares of Rs. 10  each which   were  not  affected  -by  the   reduction.    While, therefore, it was clearly impossible for the Court to direct that  the  Company  should be replaced on  the  register  in respect  of  its  original shares, the  Court  could,  under section  38, give notice to the persons to whom  the  shares had  been reallotted or those claiming under them  and  make them parties to the proceedings and then make an appropriate order for’ rectification and, if necessary, also direct  the Mills  to  pay damages under that section.  This  being  the situation learned advocate for the Mills had to decide  upon his  course of action.  What happened in Court  will  appear from  the following extract from the judgment of  the  trial Court:-  " It is agreed by both parties that the proper order  will be for the applicant Company to be placed on the register in respect  of  5,000 of the unissued rupees 10  shares  and  I order  accordingly.  In this case as the parties consent  to the matter being disposed of, by allotting to the  applicant unissued shares, there can, it seems to me, be no order  for payment  of  the  dividends.   Counsel  for  the  respondent Company   leaves   the  solution  of  this   difficulty   to me......................... The suggestion of the  applicant Company  is that it is prepared to forego any claim  to  the accrued  dividends if it is not required to pay interest  on the outstanding call money.  This seems to me to be a very 367 reasonable  suggestion........... I direct accordingly  that on  insertion of the name of the applicant Company as  owner of  6,000of the unissued shares the applicant Company  shall pay  to  the respondent company only Rs.  25,000  being  the amount of calls in arrears."    The  appeal Court, however, went behind this  record  of the  proceedings that took place before the trial Court  and heard the learned senior advocate as to what had happened in Court  and after hearing the senior advocate for  the  Mills found  itself unable to agree with the contention  that  the learned   advocate   for  the  Mills  had  agreed   to   the substitution  of  5,000  unissued  shares  for  the   shares forfeited.  No affidavit of the learned senior advocate  was filed  before the trial Court for the rectification of  what is  ’low alleged to have been wrongly recorded by the  trial Judge,  as  suggested by the Privy Council  in  Madhu  Sudan Chowdhri  v. Musammat Chandrabati Chowdhrain (1)  and  other cases   referred  to  in  Timmalapalli  Virabhadra  Rao   v. Sokalchand Chunilal & Others (2).  While we do not  consider it  necessary  or desirable to lay down any  hard  and  fast rule,  we certainly take the view that the course  suggested by  the  Privy  Council should  ordinarily  be  taken.   It. appears  that at the time when the application was made  for leave  to appeal to the Federal Court an affidavit sworn  by G.  Vasantha  Pai, the junior advocate for  the  Mills,  was filed  before  the  Court  dealing  with  that  application. Paragraph 5 of that affidavit runs as follows:-   "During the trial every question was argued on behalf  of the respondent company and no point was given up.  This will be clear -from the fact that till we reached the penultimate paragraph  of  the  judgment beginning ’It  now  remains  to consider, etc.’ all the issues are dealt with by the learned Judge.  The agreement was on the specific form of the  order on  the  basis  of  his  Lordship’s  judgment  and   without

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prejudice to the respondent company’s rights.  What (1) (1917) 21 C. W. N. 897. (2) (1951) 1 M. L. J. 244. 48 368 was  agreed  to  was  "Proper order" on  the  basis  of  his Lordship’s  judgment which by then had been  dictated.   The respondent  company no more consented to the order that  the appellant  consented to have his application dismissed  when its  counsel agreed that it was impossible to make an  order in terms of the Judge’s summons."   The  appeal  Court  understood the  stand  taken  by  the learned senior advocate as follows:-   " He seems to have &greed only as an alternative that  if all  his  contentions were overruled and the  learned  Judge thought  that notwithstanding the difficulty in the  way  of granting the relief for rectification the applicant  company should  be  restored  to  the  register,  the  only   shares available  being the 16,000 shares of Rs. 10 each  unissued, the  applicant company could be recognised as a  shareholder in respect of 5,000 out of those shares................."   It  is quite clear from the judgment of the trial  Court, paragraph  5  of  the junior advocate’s  affidavit  and  the statement of the learned senior advocate as recorded by  the appeal Court that the agreement was solely and simply as  to the  specific  form of the order, without prejudice  to  the Mills’ right to challenge the correctness of the findings of the  trial Court on the material -issues.  In  other  words, all  that  learned advocate for the Mills desired  to  guard himself  against was that the agreement should not  preclude the Mills from preferring an appeal against the decision  of the learned Judge on the merits.  The reservation was as  to the  right of appeal challenging the findings on the  merits and  the  agreement was only as to the form  of  the  order. This  limited  agreement certainly implied  that  the  Mills agreed to be bound by the order only if the Mills failed  in their  appeal on the merits’ In short, the  consent  covered only  the form of the order and nothing else so that if  the Mills succeeded in their appeal the order would go, although advocate has agreed to its form but that if the Mills failed in their contention as to the correctness of the findings of the learned trial Court on the 369 different questions on merits it would no longer be open  to them  to challenge the order only on the ground of the  form of  the order.  In our judgment the Mills cannot attack  the form of the order to which their counsel consented.   Learned advocate for the Mills has raised the question of limitation.   He  referred us to articles 48 and 49  of  the Limitation  Act  but did not strongly  press  his  objection founded  on those articles.  We agree with the  trial  Court and  the  Court of appeal that those two  articles  have  no application to this case.  A claim for the rectification  of the  register  simpliciter does not  necessarily  involve  a claim  for the return of the share scrips and in  this  case there  was, in fact, no prayer for the return of  shares  or the  scrips and, therefore, these two articles can  have  no application.  Learned advocate, however, strongly relies  on article  181 of the Limitation Act.  That article has, in  a long  series of decisions of most, if not all, of  the  High Courts, been held to govern only applications under the Code of Civil Procedure.  It may be that there may be  divergence of  opinion  even  within  the  same  High  Court  but   the preponderating view undoubtedly is that the article  applies only to applications under the Code.  The following  extract

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from the judgment of the Judicial Committee in Hansraj Gupta v.  Official  Liquidators,  Dehra  Dun  Mussoorie   Electric Tramway Company Limited (1) is apposite:-   "  It  is  common ground that the only  article  in  that schedule which could apply to such an application is article 181  :  but  a series of  authorities  commencing  with  Rai Manekbai  v. Manekji Kavasji (2) have taken ’the  view  that article  181 only relates to applications under the Code  of Civil  Procedure, in which case no period of limitation  has been  prescribed for the application.  But even  if  article 181 does apply to it, the period of limitation prescribed by that article is three years from the time when the right  to apply accrued, which time would be not earlier than the (1) (1933) 60 I.A. 13 at p. 20. (2) (1883) 7 Bom. 213. 370 date  of  the  winding  up  order,  March  26,  1926.    The application  of the liquidators was made on March 26,  1928, well within the three years.  The result is that from either point  of  view  the  application  by  the  liquidators,  if otherwise  properly made under and within the provisions  of section  186 of the Indian Companies Act, is not  one  which must  be  dismissed  by reason of section 3  of  the  Indian Limitation  Act.   It is either an application  made  within time,  or it is an application made for which no  period  of limitation is prescribed.  The case may be a casus  omissus. If  it be so, then it is for others than their Lordships  to remedy the defect."   Learned advocate for the Mills, however, points out  that the  reason  for holding that article 181  was  confined  to applications  under the Code was that the article should  be construed  ejusdem generis and that, as all the articles  in the  third  division of the schedule to the  Limitation  Act related  to applications under the Code, article 181,  which Was  the residuary article, must be limited to  applications under  the Code.  That reasoning, it is pointed out,  is  no longer applicable because of the amendment of the Limitation Act by the introduction of the present articles 158 and 178. These  articles  are  in the third  division  which  governs applications  but they do not relate to  applications  under the  Code  but  to  one  under  the  Arbitration  Act   and, therefore, the old reasoning can no longer hold good.  It is urged  that  it  was  precisely  in  view  of  this  altered circumstance   that  in  Asmatali  Sharif  v.  Mujahar   Ali Sardar(1)  a  Special  Bench  of  the  Calcutta  High  Court expressed the opinion that an application for pre-emption by a  non-notified co-sharer should be governed by article  181 of  the  Limitation Act.  A perusal of that  case,  however, will show that the Special Bench did not finally decide that question  in  that case.  In Hurdutrai  Jagadish  Prasad  v. Official  Assignee  of Calcutta(2) a Division Bench  of  the Calcutta High Court consisting of Chief Justice Harries  and Mr. Justice Mukherjea who had delivered (1) (1948) 52 C.W.N. 64. (2) (1948) 52 C.W.N. 343. 371 the judgment of the Special Bench clearly expressed the view that  article  181 of, the Limitation Act  applied  only  to applications  under  the Civil Procedure Code  and  did  not apply  to an application under section 56 of the  Presidency Towns  Insolvency  Act Mukherjea J. who also  delivered  the judgment  of the Division Bench explained  the  observations made  by him in the Special Bench case by pointing out  that the entire procedure for an application under section 26 (F) of  the  Bengal  Tenancy  Act was  regulated  by  the  Civil

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Procedure  Code  and, therefore, an  application   for  pre- emption was, as it were, an application made under the Civil Procedure  Code.   Subsequently  in  Sarvamangala  Dasi   v. Paritosh  Kumar Das(1) G.N. Das J. who was also a member  of the Special Bench in the first’ mentioned case expressed the opinion,  while  sitting singly, that article  181  was  not confined  to  applications under the Code.   His  Lordship’s attention does not appear to have been drawn to the case  of Hurdutrai  Tagadish  Prasad(2).  It does not  appear  to  us quite  convincing, without further argument, that  the  mere amendment  of articles 158 and 178 can ipso facto alter  the meaning  which,  as a result of a long  series  of  judicial decisions of the different High Courts in India, came to  be attached  to  the language used in article 181.   This  long catena  of decisions may well be said to have, as  it  were, added  the words " under the Code " in the first  column  of that article.  If those words had actually been used in that column  then a subsequent amendment of articles 158 and  178 certainly  would  not  have affected  the  meaning  of  that article.  If, however, as a result of judicial construction, those words have come to be read into the first column as if those  words  actually  occurred  therein.  we  are  not  of opinion,   as  at  present  advised,  that  the   subsequent amendment  of  articles  158 and 178  must  necessarily  and automatically have the effect of altering the long  acquired meaning  of article 181 on the sole and simple  ground  that after the amendment the reason on which the old construction was founded is no longer available.  We need (1) A.I.R. 1952 Cal. 689. (2) (1948) 52 C.W.N. 343. 372 not,  however, on this occasion, pursue the matter  further, for  we  are of the,opinion that even if  article  181  does apply to the present application it may still be said to  be within  time.  The period of limitation prescribed  by  that article is three years from the time when the right to apply accrues." It is true that a further notice after the  shares are  forfeited, is not necessary to complete the  forfeiture of the shares See Knight’s case(1)], but it is difficult  to see how a person whose share is forfeited and whose name  is struck out from the register can apply for rectification  of the register until he comes to know of the forfeiture.   The same terminus a quo is also prescribed in Article 120 of the Limitation  Act.   In  O.R.M.O.  M.SP.  (Firm)  v.   Nagappa Chettiar(2) which was a suit to recover trust property  from a  person who had taken it, with notice of the trust,  by  a transaction  which was a breach of trust, the Privy  Council approved  and applied the principles of the  earlier  Indian decisions  referred to therein to the case before  them  and held that the time began to run under article 120 after  the plaintiff came to know of the transaction which gave him the right  to  sue.  On the same reasoning we  are  prepared  to extend  that  principle  to the  present  application  under article 181.  If article 181 applies then time began to  run after  the Company came to know of its right to sue.  It  is not  alleged  that  the Company had  any  knowledge  of  the forfeiture  between  the  5th  September,  1941,  when   the resolution  of forfeiture was passed and the 9th  September, 1941,  when  the  Company became defunct.   After  the  last mentioned  date  and  up to the  16th  February,  1945,  the Company  stood dissolved and no knowledge or notice  can  be imputed  to the Company during this period.  Therefore,  the Company must be deemed to have come to know of its cause  of action  after  it  came  to  life  again  and  the   present application was certainly made well within three years after

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that event happened on the 16th February, 1945.  If  article 181 does not apply then the only article that can (1) (1867) L.R. 2 Ch.  App. 321. (2) I.L.R. [1941] Mad. 175. 373 apply by analogy is article 120 and the application is  also within  time.   In either view this  application  cannot  be thrown out as barred by limitation.    The result, therefore, is that this appeal must succeed. We  set aside the judgment and decree of the High  Court  in appeal-and  restore  the  order of  the  trial  Court.   The appellant will be entitled to the costs of the appeal in the High Court as well as in this Court.   BOSE  J.-I  agree  with the  conclusions  of  my  learned brothers and also with their reasoning generally but lest it be  inferred that I am assenting to a far wider  proposition than is actually the case, I deem it advisable to clarify my position about abandonment and waiver.  Though the  usage of these words in cases of the present kind has the sanction of high authority, they are, in my opinion, inapt and  mislead- ing  in this class of case.  In order to appreciate this  it will be necessary to hark back to first principles.   In  the first place, waiver and abandonment are in  their primary context unilateral acts.  Waiver is the  intentional relinquishment of a right or privilege.  Abandonment is  the voluntary  giving  up  of one’s  rights  and  privileges  or interest  in property with the intention of  never  claiming them again.  But except where statutory or other limitations intervene,  unilateral  acts never in  themselves  effect  a change in legal status because it is fundamental that a  man cannot  by  his  unilateral action  affect  the  rights  and interests  of  another except on the basis of  statutory  or other authority.  Rights and obligations are normally inter- twined and a man cannot by abandonment per se of his  rights and interests thereby rid himself of his own obligations  or impose  them on another.  Thus, there can be no  abandonment of  a tenancy except on statutory grounds (as, for  example, in the Central Provinces Tenancy Act, 1920) unless there  is acceptance, express or implied, by the other side.  It  may, for  example  in  a case of tenancy, be  to  the  landlord’s interest to keep the tenancy alive and so also in the case 374 of  shares of a company.  It may be to the interests of  the company and the general body of shareholders to refrain from forfeiture  if,  for  example, the  value  of  unpaid  calls exceeds the market value of the shares.  Such a position was envisaged  in Garden Gully United Quartz Mining Co. v.  Hugh McLister(1).   So  also  with  waiver.   A  long  catena  of illustrative cases will be found collected in B. B.  Mitra’s Indian  Limitation  Act, Thirteenth Edition, pages  447  and 448.    This   fundamental   concept   brings   about    another repercussion.   Unless other circumstances intervene,  there is a locus paenitentiae in which a unilateral abandonment or waiver  can  be  recalled.  It would  be  otherwise  if  the unilateral  act  of abandonment in itself, and  without  the supervention  of other matters, effected a change  in  legal status.   In point of fact, it is otherwise when, as in  the statutory  example  I have quoted, the  law  intervenes  and determines  the tenancy.  It is, therefore, in  my  opinion, fundamental that abandonment and waiver do not in themselves unilaterally   bring  about  a  change  in   legal   status. Something else must intervene, either a statutory mandate or an act of acceptance, express or implied, by another person, or,  as  Lord  Chelmsford  put it in  Clarke  &  Chapman  v.

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Hart(1),  acts  which are equivalent to an  agreement  or  a licence,  or an estoppel in cases where an estoppel  can  be raised.     Next,  there is, in my view, a  fundamental  difference between  an executory interest and an executed one.  In  the former,  it is necessary to resort to equitable  reliefs  to get  enforced  a  right which is not at the  date  a  vested right:  cases of specific performance and declaration  of  a trust  are  examples,  so  also a  prayer  for  relief  from forfeiture.   In  cases of this kind,  conduct  which  would disentitle  a  person to equitable relief is  relevant.   No hard  and  fast rule can or should be laid down as  to  what such  conduct should consist of but among the  varieties  of conduct  which  Courts have considered  sufficient  in  this class of case is conduct which amounts to laches (1)  (1875-76)  1  App.  Cas. 39. at 57 (2) (1858)  10  E.R. 1443 at 1452 and 1453. 375 or  where  there has been a standing by or  acquiescence  or waiver  or  abandonment of a right, particularly  when  this would  prejudicially  affect third parties.   This  sort  of distinction  is brought out by Lord Chelmsford in  Clarke  & Chapman v. Hart(1).   The  position is different when the interest is  executed and  the man has a vested interest in the right, that is  to say, when he is the legal owner of the shares with the legal title to them residing in him.  This legal title can only be destroyed  in  certain  specified ways.  It is  in  my  view fundamental  that  the  legal  title  to  property,  whether moveable  or  immoveable,  cannot pass from  one  person  to another  except in legally recognised ways, and normally  by the  observance  of  certain  recognised  forms.   Confining myself  to  the present case, one of the ways in  which  the title to shares can pass is by forfeiture; but in that  case an  exact procedure has to be followed.  A second way is  by transfer  which  imports agreement. There again there  is  a regular  form  of procedure which must be gone  through.   A third is by estoppel, though, when the position is analysed, it  will be found that it is not the estoppel as such  which brings  about  the  change.   The  expressions  abandonment, waiver  and so forth, when used in a case like the  present, are only synonyms for estoppel and despite hallowed usage to the  contrary, I prefer to call a spade a spade and put  the matter  in its proper legal pigeon hole and call it  by  its proper legal name.  These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature.  A man who has a vested interest and  in whom  the legal title lies does not, and cannot,  lose  that title by mere laches, or mere standing by or even by  saying that  he has abandoned his right, unless there is  something more, namely inducing another party by his words or  conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an  estoppel, pure  and simple.  It is only in such a case that the  right can (1) 10 E.R. 1443 at 1452 and  1453. 376 be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such  which deprives  him of his title but the estoppel  which  prevents him  from asserting that his interest in the shares has  not been  legally extinguished, that is to say,  which  prevents him  from asserting that the legal forms which in law  bring about the extinguishment of his interest and pass the  title which resides in him to another, were not duly observed.

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 Fazl  Ali J. and I endeavoured to explain this in  Dhiyan Singh  v.  Jugal Kishore (1).  What happens  is  this.   The person  estopped  is not allowed to deny  the  existence  of facts, namely the actings of the parties and so forth  which would in law bring about the change in legal status,  namely the  extinguishment of his own title and the transfer of  it to another, for estoppel is no more than a rule of  evidence which prevents a man from challenging the existence or  non- existence of a fact.  Once the facts are ascertained, or  by a fiction of law are deemed to exist, then it is those facts which bring about the alteration in legal status; it is  not the estoppel as such nor is it the abandonment or waiver per se.  I prefer therefore to adhere to what I conceive is  the proper legal nomenclature.  As I understand it, estoppel was the  basis of the decision in Clarke & Chapman v. Hart  (2). See  Lord Wensleydale’s judgment at page 1458 and  the  Lord Chancellor’s at page 1453 ; so also. in Garden Gully  United Quartz Mining Company v. Hugh McLister (3).   That  there is no sufficient ground for estoppel in  this case  is  shown by the facts set out in the judgment  of  my learned brothers.  I agree that the appeal must succeed.              Appeal allowed. Agent for the appellant: S. Subramaniam. Agent for the respondent: M. S. E. Aiyangar. (1) [1952] S.C.R. 478 at 485.  (3) 1 App.  Cas. 39 at 56 and 57, (2)  10 E.R. 1443. 377