Appeal No 270 of 1955
Appeal by special leave from the judgment and decree dated March 24 1952 of the Judicial Commissioner s Court Vindhya Pradesh in First Appeal No 16 of 1958
Appeal by special leave from the judgment and decree dated March 24 1952 of the Judicial Commissioner s Court Vindhya Pradesh in First Appeal No 16 of 1952
LK Jha A D Mathur and R Patnaik for the appellant
NC Chatterjee and D N Mukherjee for respondent No 1 1961
March 16
The Judgment of P B Gajendragadkar K Subba Rao K N Wanchoo and J R Mudholkar JJ was delivered by Mudholkar J A K Sarkar J delivered a separate Judgment MUDHOLKAR J This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act 1949 is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl
1f of article 19 of the Constitution
But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of  the plaintiff respondent No 1 by Mr N C Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant
of special leave to appeal to him he withdrew the price of pre emption which was deposited by the respondent No 1 in the court below
He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that therefore he cannot be heard to say that the decree is erroneous
In short Mr Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate
In support of his contention learned counsel has relied upon the well known case of Tinkler vs Hilder 1 and other cases which follow that decision or which proceed on the same reason as that in Tinkler s case 1
Those decisons are Banku Chandra Bose vs Marium Begum  a Ramendramohan Tagore vs Keshabchandra Chanda 2 Mani Ram vs Beharidas 3 section K Veeraswami Pillai vs Kalyanasundaram Mudaliar  Ors
4 Venkatarayudu vs Chinna 5 and Pearce vs Chaplin 6
The two English decisions just referred to and some of the Indian decisions were considered in Venkata
rayudu vs Chinna 5
Dealing with them Venkatasubba Rao J observed as follows What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other a person cannot adopt one part and repudiate another
For instance if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party 1  2 Cal
4 AIR 1927 Mad 1009
1a 1915 3 AIR 1955 Raj
5 6  1846 9 QB 802 361 there is no intention to benefit the latter except on the terms mentioned in the order itself
If the party receives the costs his act is tantamount to adopting the order 
According to Halsbury this rule is an application of the doctrine that a person may not approbate and reprobate 13 Halsbury para 508   
In other wordsto allow a party who takes a benefit under such an order to complain against it would be to permit a breach of faith
The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in volved in these cases
What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal
The appellant did not seek to execute the decree and indeed the decree did not confer a right upon him to sue out execution at all
The decree merely conferred a right upon the plaintiff respondent No 1 to deposit the price of pre emption and upon his doing so entitled him to be substituted in the sale deed in place of the vendee
The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No 1 cannot clearly amount to an adoption by him of the decree which he had specifically challenged in his appeal
Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety
How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any benefit thereunder No doubt he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree
It is only in the nature of compensation to the vendee for the loss of his property
46 362 For this reason the principle of the aforesaid decision would not apply to such a decree
A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand J in Sundara Das vs Dhanpat Rai 1
What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed
No reference is made by the learned judge to the decisions in Tinkler s case 2 and in Pearce s case 3 and therefore this decision and other similar decisions are of little assistance in considering the argument advanced by Mr Chatterjee
It seems to us however that in the absence of some statutory provision or of a well recognised principle of equity no one can be deprived of his legal rights including a statutory right of appeal
The phrase approbate and reprobate is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election namely that no party can accept and reject the same instrument per Scrutton L J in Verschures Creameries vs Hull and Netherlands Steamship
 Co4
The House of Lords further pointed out in Lissenden vs C A V Bosch Ltd 5 that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument
In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory right of appeal conferred upon him by the Workmen s Compensation Act
Lord Maugham after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents
Neither estoppel nor release in the ordinary sense was suggested
Nothing was less served than 1 1907 P R No 16
2  3  1846 9 QB 802 4 5 1940 AC 412
363 the principles either of equity or of justice pp 421 422
Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the formula to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from
No doubt as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal
But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment and the only conflicting right is the statutory right to seek to set aside or amend that judgment and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co 1
According to Lord Blanesburgh when an order appealed against and later set aside has been acted upon in the meantime any mischief so done is undone by an appropriate order
Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable
Thus according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler s case 2 is
based may apply
Referring to this case and three other similar cases Lord Atkin observed In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case and if they did lead to that result should not be followed
428 429
3 The Lissenden case has thus in clear terms 1 21849 4 Ex 187  3 364 indicated what the limitations of the Scotch doctrine are
If therefore what was laid down in this case is the common law of England according to its highest judicial tribunal it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions
It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler s case 1 to cases like the present
In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order
Here the appellant by withdrawing the preemption price has not taken a benefit de hors the merits
Besides this is not a case where restitu tion is impossible or inequitable
Further it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate
In the case before us there was no such choice before the appellant and therefore his act in withdrawing the preemption price cannot preclude him for continuing his appeal
We therefore overrule the preliminary objection
The appeal will now be set down for hearing on merits
The costs of this hearing will be costs in the appeal
SARKAR J
It seems to me that the objection to the maintainability of this appeal must succeed
The appellant having taken the benefit of the decree cannot now challenge its validity
The decree was passed in a suit for preemption brought in May 1951 by the respondent Baijnath whom I will call the respondent
against the appellant the purchaser of certain property and the vendors the other respondents who have not appeared in this appeal
The suit was dismissed by the trial Court but 1  365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh on March 241952
The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property as Rs 3000 and directed the respondent to pay this sum into court within four months
The respondent duly paid this sum into court
The appellant obtained special leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent
The present appeal arises under this leave
The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months
In view of Or
XX r 14 of the Code of Civil Procedure the decree in spite of its informality must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that in default of such payment the suit would stand dismissed with costs
Now there is not the slightest doubt that in with
drawing the money from court the appellant had acted entirely on his free choice he had in no way been compelled to do so nor been induced thereto by any act of the respondent
The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant
The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest
He has all along been in possession of the property since he purchased it on June 7 1950 and he has been in enjoymeint of the money also sine he withdrew it from court on November 14 1953
It seems to me that on these facts the appellant cannot proceed with the appeal
He cannot be permitted to pursue inconsistent courses of conduct
By withdrawing the money he has of his free choice 366 adopted the decree and must therefore be precluded from challenging its validity
He had no right to the money excepting such as the decree gave him
Having exercised that right he cannot be heard to say that the decree was invalid and therefore the right which he had exercised had never existed
The rule is well established in England as well as in our country that a litigant is not permitted such inconsistent courses of conduct and so far as I am aware never been departed from
As early as 1849 in Tinkler vs Hilder 1 Pollock C B in dealing with a rule to set aside an order said It might be discharged simply on this narrow ground that under the circumstances of this case the party applying to set aside the order in question in point of fact has adopted it by taking something under it
In King vs Simmonds 2 and Pearce vs Chaplin 3 the same line of reasoning was adopted
It is true that in these cases the orders were said to have been adopted because costs for the payment of which they had provided had been received
It is also true that the orders were not such to which the parties directed to pay the costs were entitled as a matter of right
But all these do not seem to me to make any difference
The question is are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it I should suppose that for this purpose costs are as much benefit as anything else given by the order
Likewise when the orders were discretionary or such to which there was no right ex debito justitiae there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted
For deciding such inconsistency I am unable to discover that the discretionary nature of the order has any materiality
Coming to more recent times we get the case of Dexters Ld
vs Hill Crest Oil Co Ld
There a person who had taken money under an award made in a commercial arbitration in accordance with which a 1  3 1846 9 Q B 802
2  4 1926 1 KB 348 367 judgment had been entered in a special case stated to court was held precluded from appealing from that judgment
This it will be noticed was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award
Scrutton L J observed p 358 It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right
I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam 1 a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit
Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal 2 Banku Chandra Bose vs Marium Begum 3 Humrybux Deora vs Johurmull Bhotoria 4 and Venkatarayudu vs Chinna 5
Hurrybux Deora s case 4 was an appeal from a decree in a suit for the redemption of a mortgage
The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property and had thereafter filed the appeal asking that he was entitled to more
Rankin C J who delivered the judgment of the Court held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had therefore no application
This was plainly right
The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough
As has been said he was not blowing hot and cold but only blowing hotter see per Greer LJ in Mills vs Duckworth 6
Referring to King vs Simmonds 7 Pearce vs Chaplin 8 and Tinkler vs Hilder 9 which I have earlier 1  4832 3 5 32 1
7  1846 9 QB 802
9 1849 4 Exc 1187  368 cited Rankin CJ said p 714 that they are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite Party at whose instance the order was made
He was of the view that this basis did not exist in the case which he had before him
Rankin CJ also referred to another old English case namely Kennard vs Harris 1
 There a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award
Rankin CJ said with reference to this case that p 713 A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award
He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only
It may be that Rankin CJ was making a distinction which is obviously correct between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case the adoption of a part by a party would not preclude him from challenging another part which was independent
Rankin CJ did not think and if I may say so with respect correctly that the principle of Kennard vs Harris 1 had any application to the facts of the case before him for there no part of the judgment was sought to be challenged by the appeal excepting perhaps an independent part which by implication rejected the appellant s claim to a larger sum
In Venkatarayudu s case 2 Venkatasubba Rao J after discussing various cases to some of which I have referred observed p 141 What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other 1  1824 2 B  C 80 2 369 a person cannot adopt one part and repudiate another
It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal
Here we have a decree which is one and indivisible
The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money
The appellant has no right to the money whatsoever independent of the decree he had no right to compel the respondent to purchase the property from him on payment of a price
Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price
The appellant could have drawn out the money only on the basis that the decree had been properly passed
Therefore by withdrawing the money he adopted its correctness and cannot now say it is incorrect
It seems to me that the observation of Venkatasubba Rao J in Venkatarayudu s case 1 P 141 that  to allow a party who takes a benefit under such an order to complain against it would be to permit a breach of faith would apply fully to the conduct of the appellant
So would the observations of Rankin C J in Hurrybux Deora s case 2 on King vs Simmonds 3 Pearce vs Chaplin 4 and Tinkler vs Hilder 5
The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition that is to say as to the payment of money into court imposed upon the respondent at whose instance the order was made that the obligation to pay money was a term or condition imposed upon the respondent is manifest because the decree provided that if the money was not paid the suit would stand dismissed with costs
Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts
Therefore what 1 3  2 4 1846 9 QB 802
5  47 370 Rankin C J said in regard to Kennard vs Harris which turned on an award namely that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside would also be applicable
I find it impossible to conceive that this judgment consists of several parts or that such parts are severable
The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai 2
That was also a case of pre emption
There however the plaintiff who had obtained the decree for pre emption in his favour had executed that decree and obtained possession of the property concerned
The defendant appealed from the decree but was unsuccessful
in the first appellate court
He then appealed to the Chief Court at Lahore and when the appeal was pending there withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court
The Chief Court held that this lid not preclude the defendant from proceeding with the appeal before it
The facts of that case were substantially different from those before us
It may be said that the defendant having been compelled to part with the property was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree
That cannot be said in the present case
Whether on the facts Sunder Das s case 2 was rightly decided or not is not a matter on which I feel called upon to express any opinion
If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal I am unable to agree with it
It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment in that case
I do not think that Sunder Das s case 2 is of sufficient authority to warrant a departure from the principle uniformly followed by the courts
1  2 1907 PR
No 16
371 It is necessary however before I conclude to refer to the comparatively recent case of Lissenden vs C A V Bosch Ltd 1
That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated
The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company 2 had held somewhat reluctantly that the workman having accepted money under the award could not challenge its validity by an appeal
In Johnson s case 2 it appears to have been held that a workman could not
accept part of an award and claim to amend another part for that would be an attempt to approbate and reprobate the award and this could not be allowed
The House of Lords in Lissenden s case 1 held that Johnson s case 2 had been wrongly decided and that the workman before it was entitled to proceed with the appeal
The reason for this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief
The case therefore was the same as that before Rankin C J in Hurrybux Deora vs Johurmull Bhotoria 3
The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award
That however cannot be said in the case before us now
The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against  approbating and reprobating
It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election
It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was therefore not applicable to a case like the 1 1940 AC 412
2 3 372 one the House of Lords had before it
It was also pointed out that the common law principle of election had no application either for it depended on the h existence of two rights or remedies one alone of which could be chosen and in the case of an appeal there were no two rights or remedies
I do not think the observations of the House of Lords on the doctrine against approbating and reprobating affect the question before us
All the learned Judges who delivered opinions in the case including Lord Atkin who expressed himself with some reservation accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal see p 420429 430 and 434
Lissenden s case 1 does not therefore in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal
It seems to me that the courts in England have taken the same view of Lissenden s case 1
In Baxter vs Eckersley 2 the Court of Appeal expressly approved of the principle laid down in Dexter s case3
In Banque Des Marchands De Moscou vs Kindersley 4 Evershed M R referring to the phrases approbating and reprobating and blowing hot and blowing cold said at p 119 These phrases must be taken to express first that the party in question is to be treated as having made an election from which he cannot resile and second that he will not be regarded at least in a case such as the present as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent
These two cases it will be observed were decided after Lissenden s case 1
All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly 1 3 2 4 373 established
I think for the reasons earlier mentioned that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal
I wish however to make it clear that the applicability of the rule will depend on the facts of each case it will depend on whether there has been actual inconsistency
I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent
That is all that I decide
Before leaving the case I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle
It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal
There is as much inconsistency in the present case as there would have been if the appellant had withdrawn the money before he had obtained the leave
For these reasons I would dismiss the appeal with costs
By COURT In accordance with the majority judgment the preliminary objection is overruled
The appeal will now be set down for hearing on merits
Preliminary objection overruled
Appeal set down for hearing


Summary:
In a suit instituted by the respondent for the enforcement of the right of pre emption against the appellant the trial court dismissed the suit but on appeal a decree was passed on March 24 1952 under which upon the respondent paying the amount found payable as purchase money into court within four months his title to the property would be deemed to have accrued from the date of the payment into court
The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20 1953 confining the appeal to the constitutional point raised therein that the Rewa State Pre emption Act 1949 was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in article 191f of the Constitution of India
In the meantime the respondent deposited the price of pre emption into court within the time fixed in the decree and on November 14 1953 the appellant withdrew the money from court
The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whetber the appellant was precluded from proceeding with the appeal on the ground that by withdrawing the pre emption price he must be deemed to have accepted the decree and that he could not therefore be heard to say that the decree was erroneous
The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate
Held Sarkar J dissenting that the act of the appellant in withdrawing the pre emption price did not amount to an adoption by him of the decree which he had specifically challenged in his appeal and in the absence of some statutory provision or of a well recognised principle of equity he could not be deprived of his statutory right of appeal
Accordingly the appellant was not precluded from proceeding with the appeal
The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detrimental to him on the ground that he cannot be allowed to approbate and reprobate is applicable only to cases where the 359 benefit conferred by the order is something apart from the merits of the claim involved
A vendee in a pre emption suit against whom a decree is passed has a right to be paid the pre emption price before the decree becomes effective but the price cannot be characterised as a benefit under the decree it is only in the nature of compensation to the vendee for the loss of his property
Tinkler vs Hilder   VerschuYes Creameries vs Hull and Netherlands Steamship CO  Lissenden vs C A V Bosch Ltd  Venkatarayudu vs Chinna and Sundra Das vs Dhanpat Rai 1907 PR No 16 considered
Per Sarkar J The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed
By withdrawing the money he adopted its correctness and cannot now say it is incorrect
The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot therefore be allowed to proceed with the appeal
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