Vol. 12 · pages 591–595

570 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES authorised agent of his to the Plaintiff or some one on his behalf. (ii) With the intention that the Plaintiff should act upon the faith of the statement. and (iii) The Plaintiff does act upon the faith of the statement. § Statement must amount to representation. (1) Representation may be by word or by conduct, A. If it is by word it may be active misrepresentation made deliberately with a knowledge of their falsehood. Illus.McCance vs. London and Nother Western Railway Co., (1861)7 H. & N. 477. M entered into a contract with the Railway Co., to carry his horse in trucks which should be reasonably fit and proper for the carriage of horses from Edge Hill near Liverpool, to Wolverhampton. The Railway agreed to provide trucks which should be reasonably fit and proper. M filled in a declaration form in which he stated that the value of a horse did not exceed £10 per horse. Under the system followed by the Railway there were modes of transporting horses. One was to send them in trucks allowing the owner to place as many horses as he liked in each truck. The other was to send them in horse boxes, each horse being placed in a separate stall. The rate of carriage by the latter mode being three times as much as when carried by the former mode. There was a further rule that the Railway would take horses above the value of £10 in trucks. In transit some horses were injured owing to the defective state of the trucks provided by the Railway. The damage sustained by M on the basis that the value of each horse was £10 came to £25 which amount the Railway Company was agreeable to pay as they admitted that the trucks were defective. The Plaintiff claimed that the real value of a horse was £40 and the damages came to £55. This is a case of active misrepresentation.

571LAW OF EVIDENCE Illus. (2) Munnoo Lal vs. Lalla Choonee Lal. 1. I.A. 144 Reep Singh was in debt but possessed considerable Estate. M had been his Banker. On 9th October 1863 M obtained a mortgage from R of a property to secure a debt of Rs. 20,000 owed by R. On 9th August 1863 R sold the same property to C. When negotiations for the purchase took place between R and C, M was present and took part in same and in answer to inquiries by C gave him to believe that he had no lien upon the Estate. In 1868 M filed a suit against C to enforce the payment of his mortgage bond. He was estopped. This is also a case of active misrepresentation. B. Representation may be innocent misrepresentation Illus. Gould vs. The Bacup Local Board. (1881)50 L.J.(M.C.)44. Certain premises belonging to Gould were kept in a very insanitary condition. The Board asked him to do certain improvements which he refused to do. The Board then served a noice upon him staring that if he did not carry out the improvements within a given time the Board would execute them. There were two modes of recovering the expenses which were prescribed by the Act, one was by Section 213 and another by Section 240. Section 213 allowed the Board to recover them by additions to the local rate levied by the Board and Section 240 allowed them to recover them independently in lump sum. In the notice served upon Gould it was stated that the recovery would be under Section 213. But in the suit the Board sought to recover the amount as provided by section 240. The Board was estopped. This is a case of innocent misrepresentation. (2) Representation may be by words or may be by silence. Silence under certain circumstances may be eloquent and may amount to a representation as good and as real as is made by the spoken word. But every case of silence cannot be taken as equivalent to speech. Because the law does not require a person to speak out what is in his mind on each and every occasion. The law requires

572 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES a person to speak only when there is a duty upon him to speak and to disclose his mind. Otherwise silence is golden. Silence therefore to raise an estoppel must imply an obligation to speak. In considering the effect of silence it has to be seen whether there was any occasion for words and any reasonable occasion for silence. This ought to be done before relying on silence as a legitimate ground for inference. (1896) A. C. 231 (238) 2 Br. C.C. 400(419) 6 Bom. L.R. Illus. (1) Silence no ground for Estoppel. 10 Bom. L.R. 297. A decree was obtained against the father by a judgment creditor. In execution the property was managed by the Collector and the proceeds were sent to the creditor. While this was going on, the father died and the son inherited the property. The Joint Creditor sought to execute the decree against the son who contended that he was not liable as the debts were improper. It was contended that the son was estopped because his silence was representation that he accepted the decree ; Held that it was not because there was no duty. Illus. (2) Silence ground for Estoppel 15 I. A. 171. Sale by Court in Execution proceedings by a proclamation which described the rights of the Judgment-debtor very imperfectly. The result is that the property worth of Rs. 40,000 sold for Rs. 20,000. Suit was brought by the Joint Debtor to set aside the sale. Contention was that silence was Estoppel. Held it was, as there was a duty to come forward and get the proclamation corrected. Representation may be by conduct 1. Conduct may amount to representation or it may not— (i) Where it does amount to representation 19 I. A. 203. (ii) Where it does not. 19 I. A. 221.

573LAW OF EVIDENCE II. Conduct is either Active or Passive. Passive conduct is either (1) Indifference. (2) Acquiescence. Passive conduct to raise an estoppel must amount to acquiescence. It must not merely be conduct of indifference. Conduct of Acquiescence may be described as follows— “If a person having a right and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce a person committing the act, and who might otherwise have abstained from it, to believe that he asserts to its being committed, is a conduct which amounts to conduct of acquiescence”. 2 Bh. 117 (123)41 E.R. 886. Imp. 45 Bom. I. L R. 80. 14 All. 362 (364). Acquiescence may occur while the act acquiesced in is in progress or it may occur only after it has been completed. For the purposes of Estoppel it must occur while the infringement is in progress. Ch. D. 286 (314). Points to be noted. 1. Misrepresentation must be as to existing facts and not of mere intention. 5 R. L. Cases 185. Illus.— I. A person has a legal right but between the time of its creation and that of his attempt to enforce it, he has made representation of his intention to abandon it. 2. There can be no estoppel where the truth of the matter is really known to both parties.

574 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 30 Cal. 539 P. C. Mohori Bibee vs. Dharemdas Chose. On the 20th of July 1895 Damodar Das executed a mortgage in favour of one Brahma Dutt, a money lender. Brahma Dutt was absent throughout the transaction and the transaction was carried through by his attorney Kedar Nath, the money being found by Dedraj the local manager of Brahma Dutt. While the transaction was going on, the mother of Damodar Das wrote a letter to Kedar Nath the attorney that Damodar Das was a minor and any one advancing him any monies would do so at his own risk. On the date of the mortgage Kedar Nath took a long declaration from Damodar Das that he was major. On the 10th September 1895 the mother filed a suit for cancellation of the Deed of Mortgage on the ground that D was a Minor. Contention of B was that D was estopped. Held he was not because facts was known to B. Actually knowing the fact is different from having the means of knowing it. L. R . 20 Ch. D. 1. Redgrave vs. Hurd. The Plaintiff represented that his business brought in about £ 300 a year and produced 3 Summaries showing about 2/3rd of that together with some papers which Defendant did not examine. Upon the faith of this Defendant signed an agreement to purchase the Plaintiffs business and paid a deposit. Finding the business worthless he refused to complete and Plaintiff sued him for specific performance. Contention of Plaintiff was that Defendant was estopped from alleging that the representation of Plaintiff was false because he had the means of knowing the truth. Jessel M. R. P. 21. “Where one person induces another to enter into a contract by a material representation which is untrue, it is no defence to an action to rescind the contract that the person to whom the representation was made, had the means of discovering or might with reasonable deligence have discovered that it was untrue. It must be shown either that he had knowledge of the facts contrary to the representation, or that he stated in terms or shewed clearly by his conduct, that he did not rely on the representation.”