JUDGMENT R. S. Thakur, J.—This Regular Second Appeal arises out of the judgment and decree passed by the learned Additional District Judge, Mandi, Kullu and Lauhal Spiti Districts, dated March 11, 1976, in camp at Kullu, whereby he dismissed the suit of Shetu, appellant in this appeal, against Dolu (hereinafter referred to as the contesting respondent) and one Kalmu while accepting the appeal of the contesting respondent Dolu. 2. The facts in brief are that the appellant as plaintiff instituted a suit in the court of the Senior Sub-Judge, at Kullu, with the averments that one Hudi, since deceased, was inter alia, owner of 3 bighas and 16 biswas of land (hereinafter referred to as the suit land), described in the plaint, said Hudi was issueless and his family consisted only of himself and his wife. Since they were both in old age, they depended upon others to serve and look after them and for this purpose said Hudi alienated substantial part of his landed property and in fact had also us fructuously mortgaged the suit land in favour of Kalmu who was defendant No. 2 in the suit. Since the appellant was serving said Hudi and his wife, said Hudi executed a registered gift deed in favour of the appellant on October 22, 1970 in lieu of past and future service. The mutation qua the said gift, however was not attested as said Hudi colluded with the revenue officer concerned. Besides, said Hudi was also won-over by the contesting defendant to his side and induced said Hudi to execute a will in his favour and the will was actually executed by him in favour of the contesting respondent on June 30, 3972 whereby he not only bequeathed his entire estate in favour of the contesting respondent but also the suit land which said Hudi had earlier gifted in favour of the appellant. Said Hudi died thereafter and then on the basis of the will the entire estate of Hudi including the aforesaid suit land was mutated in favour of the legatee, the contesting respondent. Said Hudi died thereafter and then on the basis of the will the entire estate of Hudi including the aforesaid suit land was mutated in favour of the legatee, the contesting respondent. The plaintiff in the suit then challenged this bequest by Hudi qua the suit land, in favour of the contesting respondent and claimed a relief of declaration that by virtue of the registered gift-deed in his favour, dated October 22, 1970, he had become full and exclusive owner of the suit land and said Hudi had no right whatsoever to bequeath the same in favour of the contesting respondent and was in possession thereof as such and in case he was found to be out of possession then he also prayed for a decree of possession as well. 3. The suit was resisted by the contesting respondent only in the written statement he took up the plea that since at the time of attestation of mutation in respect of the gift in favour of the appellant, the appellant had made a statement that he would not have the gift since the donor Hudi declined to agree to the attestation of mutation in his favour, the appellant shall be deemed, under law, to have waived his rights under the gift and he was, therefore, estopped from filing the suit on the basis of the gift deed in his favour. It was also asserted that since the gift was based upon the condition that the appellant would render service to the donor and his wife and the appellant failed to fulfil this condition of the gift, the gift stood revoked and, therefore, this suit land which was the subject matter of the gift was rightly included by said Hudi in the property which he (Hudi) bequeathed in favour of the contesting respondent by virtue of the will. 4. On the pleadings of the parties, the trial Court framed the following issue:— 1. Whether the plaintiff failed to render service to Shri Hudi donor as contemplated in gift deed, dated 22-10-1970 ? O. P. D. 2. Whether the plaintiff waived his rights under the gift deed by making statement before the Revenue Officer on 16-4-1971 ? O. P. D. 3. Whether the plaintiff is in possession of the suit land, if so, its effect ? O. P. D. 4. Relief. 5. O. P. D. 2. Whether the plaintiff waived his rights under the gift deed by making statement before the Revenue Officer on 16-4-1971 ? O. P. D. 3. Whether the plaintiff is in possession of the suit land, if so, its effect ? O. P. D. 4. Relief. 5. While discussing—issues No. 1 and 2 together, the trial Court came to the conclusion that there was no doubt that when subsequent to the registration of gift deed qua the suit land in favour of the appellant the mutation in respect thereof was being attested, the donor Hudi had declined to give his consent to the attestation of mutation on the ground that the appellant was not serving him and the appellant had stated before the attesting authority that since the donor had declined the gift, he did not require the same and in view of that the mutation was rejected. He, how ever, came to the conclusion that this act on the part of the appellant did not amount to abandonment of his rights under the gift-deed by the appellant as—this could be done only by a duly registered relinquishment-deed and this also did not amount to any waiver on the part of the appellant so as to estop him to institute the suit on the basis of the gift deed and, therefore, since the rights of the appellant remained intact under the gift deed, he was entitled to institute the suit. He thus held both these issues against the contesting respondent and thus decreed the suit in favour of the appellant. 6. The contesting respondent then challenged this finding before the learned Additional District Judge who vide the impugned judgment disagreed with the findings of the trial Court and held that since the impugned gift in favour of the appellant was a conditional one, namely, to serve and maintain the donor and his wife and in the same gift-deed it was stipulated that in case the donee, failed to discharge this obligation, the gift would be treated as having been revoked, the gift stood revoked when the appellant failed to discharge the obligation of maintenance undertaken by him. This, according to the first appellate court, was further confirmed by the appellant by making a statement before the revenue officer while holding the attestation of mutation proceeding by saying that he would not accept the gift and later on he even delivered the original gift deed which the donor had executed in his favour, back to the donor and the tant- amounts to the appellant having waived his rights under the gift and this waiver therefore, created estoppel in his way to institute the present suit. The first appellate court consequently dismissed the suit of the appellant with costs throughout. 7. This finding of the first appellate court has been assailed by the learned Counsel for the appellant in this appeal before me. His first contention was that once the gift duly registered qua the suit land was made in favour of the appellant by the donor Hudi which was also accepted by— donee, the appellant, it could be revoked only by the donor by instituting a proper suit in this behalf during his life time and that too on proof of the fact that the donee had refused to serve and maintain the donor and his wife, and the first appellate court was in error in holding that the appellant shall be deemed to have waived his rights under the gift when at the time of attestation of mutation he made a statement that in case the donor was declining to get the gift mutation attested, he also would not accept such gift. 8. The learned Counsel for the contesting respondent on the other hand has supported the finding of the appellate court. He has contended that the donor would have been driven to institute a suit of revocation of the gift only in case the appellant had not made a statement before the mutating officer that he would not accept the gift if the donor was resenting it but by making such a statement the donor was made to act to his detriment by not instituting such a suit on the basis of this categorical statement of the appellant that he would not accept the gift and even requested to the rejection of the mutation in his favour and the appellant was, therefore, debarred from instituting the suit by waiver and promissory estoppel and— in support of his contention he has cited AIR 1979 SC 621, Mis. Motilal Padampat Sugar Mills Co Ltd. v. The State of Uttar Pradesh and others, and AIR 1952 Madras 687, Chunduru Kanniah Gupta and another v. Pallam- parthi Subbarami Reddi. 9. I have considered these rival contentions of the learned Counsel for the parties. The gift-deed which was registered on October 22, 1970, shows that the suit—land was gifted by Hudi in favour of the appellant in lieu of service and maintenance and it was further stipulated therein that in case the donee failed to serve and maintain the donor the donor would be entitled to either get a monthly maintenance from the donee or would take back the gifted land. It was also stated that the suit land was at that time in the possession of mortgagee and that the donee would be entitled to get the possession of the suit land on redeeming the same. 10. The proceedings of mutation, dated April 16, 1971 (Ex. D-3) show that the attesting officer that is, the Assistant Collector Second Grade, has made an endorsement in his own hand which when translated into English would read as follows :— "In the public gathering Sh. Saran Dass Lambardar concerned identified the donor Hudi and the donee Shetu as present in person. The donor has declined to get the mutation attested. The donee Shetu has stated that since the donor Hudi had declined the gift, therefore, he also did not want such a gift and the instant mutation is, therefore, rejected." 11. Now in the background of these facts the question that arises for determination is whether the doctrine of waiver or promissory estoppel can be deduced therefrom. It appears that in the instant case the waiver and estoppel have been treated as if they were synonyms terms in law which is not so. Their lordships of the Privy Council in AIR 1935 Privy Council 79, Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish (Japan Cotton Trading Co., Ltd.,), have distinguished the two terms in the following manner : "Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action or (to put in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action or (to put in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorised agent of his to the plaintiff or some one on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act upon the faith of the statement. On the other band, waiver is contractual, and may constitute a cause of action ; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principals rights, then (subject to any other question such as consideration) the principal will be bound but, he will be bound by contract not by estoppel, There is no such thing as estoppel by waiver." In short the rule of estoppel would arise only if one party makes a statement of the existence of certain facts to the other with the intention that the other party should act upon the faith of that statement and the other party does act upon the faith of that statement, that other party who acted in these circumstances is then entitled to plead estoppel against the first party in case this acting of the second party on the faith of the statements has given it a cause of action against the first party and the first party then seeks to destroy that cause of action by asserting certain facts which tend to destroy the same. In the case of waiver, on the other hand, it is a contractual relation between the parties whereby one of the parties or its agent, subject to consideration, agrees to waive is right. 12. In the case of waiver, on the other hand, it is a contractual relation between the parties whereby one of the parties or its agent, subject to consideration, agrees to waive is right. 12. In the instant case, I am of the opinion that once this gift by the donor Hudi in favour of the appellant came into existence on account of its due execution and registration which facts have not been denied, the gift become valid and final. It is now an established law that mutation proceeding is not a judicial proceeding and it neither decides any title nor is it an evidence of exclusion from property. Even if it was a conditional gift, namely, subject to service and maintenance, the donor Hudi and his wife and the appellant (donee) failed to perform this condition of the gift, the said gift could be revoked only by resorting to the provisions of section 126 of the Transfer of Property Act, by instituting a suit with the specific allegations that the donee had failed to fulfil the conditions incorporated in the gift deed and in no other way. After all even if this version of the contesting respondent is accepted, that the appellant violated the terms on which the gift was made, it only amounts to the gift being voidable and not void. In the instant case it is apparent that the donor Hudi does not appear to have served even a notice upon the appellant when he failed to fulfil the condition of the gift not to speak of filing a suit for revocation of the gift. Even at the time when the mutation in respect of this gift was rejected, there is an endorsement that the donor had declined to get the mutation attested without even making a passing reference that he was doing so as the appellant failed to serve or maintain him. No doubt in an earlier proceeding on the same point which took place on January 20, 1971, said Hudi purport to have made such statement before the attesting officer orally but that is of no moment since, admittedly, at that time the appellant (donee) was not present. 13. The first appellate court has also made not that the appellant had returned the original deed of gift (Ex. 13. The first appellate court has also made not that the appellant had returned the original deed of gift (Ex. D-l) to the donor Hudi later on but it failed to appreciate that this was done in the circumstances when a serious dispute had arisen between the donor and the donee and as per the statement of the appellant, the donor had even made a complaint against him (donee) in the police station concerned for recovery of this original gift-deed. 14. Under these circumstances, there is no question of estoppel or waiver in the case in hand. In fact the issue of estoppel is irrelevant in the facts of the present case since no such estoppel can be pleaded against law. As I have already observed, a gift like the one in hand can be revoked only by resorting to the provisions of section 126 of the Transfer of Property Act through a properly instituted suit and in no other manner and if the donor did not choose to do so, no estoppel can be allowed to be pleaded even it it is assumed that the donor eschewed from instituting a suit as the appellant had made certain statement to him in order to induce the donor to act upon those statements and he did act upon such statements. I am of opinion, however, that as a matter of fact no such statement in the instant case can be ascribed to the appellant. Even if the appellant made this statement that if the donor Hudi declined to get the mutation of gift attested he did not want such a gift, it was not by way of making the statement to the donor so that he may not take up proper proceedings to revoke the gift in his favour. It was rather by way of protest. So far as the waiver is concerned, that too, I am afraid, cannot be said to have come into existence on the facts and in the circumstances of the case. Obviously, as already observed the waiver is a creature of a contractual relations between the parties whereby the person against whom waiver is sought to be pleaded has unequivocally undertaken to waive his right against the other contracting party subject to certain consideration as there could be no contractual relations without any consideration. Obviously, as already observed the waiver is a creature of a contractual relations between the parties whereby the person against whom waiver is sought to be pleaded has unequivocally undertaken to waive his right against the other contracting party subject to certain consideration as there could be no contractual relations without any consideration. In the instant case obviously no such contract came into existence between the parties which could give right to the donor or the contesting respondent to plead waiver against the appellant. 15. It may also not be out of place to mention here that on breach of the condition of the gift deed regarding service or maintenance, the stipulation inter se the donor and donee was not the revocation of the gift alone but the donor had also reserved his right to claim a monthly maintenance in the alternative from the appellant. Under these circumstances, to say that breach of this condition entailed automatic revocation of the gift, as the first appellate court has held, is obviously erroneous, 16. In view of the above, I find merit in the appeal and the same is, therefore, accepted. Consequently, the judgment and decree passed by the first appellate court vide its judgment, dated March 11, 1976, are set aside and those passed by the trial Court, dated May 31, 1975, are restored. In the circumstances of the case, however, the parties are left to bear their own costs throughout. Appeal allowed.