Case: C. Beepathumma &amp; Others Vs. V.S. Kadambolithaya &amp; Others

he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it:"(See Maitlands lectures on Equity Lecture18)The same principle is stated in White and Tudors Leading cases in Equity Vol, 1 8th Edn, at n. 444 as follows:"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both ...... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."18. The Indian courts have applied this doctrine in several cases and a reference to all of them is hardly necessary.We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya, ILR 52 Mad 556 : (AIR 1929 Mad 502 FB) where after referring to the passage quoted by us from White and Tudor, courts Trotter, G. J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial committee in Rangaswami Gounden v. Nachiappa Gounden, ILR 42 ) Mad 523: (AIR 1918 PC 196).Recently, this court has also considered the doctrine in Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327 .19. The short question is whether, in the words of the Scottish lawyers Kunhi Pakki can be said to have approbated Exs. P-1 and P-2(a) and therefore his successors-in-title cannot now reprobate them. In this connection, Exs. P-3 and P-4 quite clearly show that Kunhi Pakki considered that he was bound by Ex. P-2(a) and the mortgagors were bound by Ex. P-2. His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex. P-1. In Ex. P-3, he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs. P-2 and P-2(a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to the 3-16 share of Cheriamma but, to the entire 7-16 share of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs. P-6 and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2.Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendant 8.20. The next point that was urged was that the High Court and the Court below should not have awarded mesne profits against the appellants till they were paid the full price of redemption including the compensation for improvements. The trial court had found that an amount of Rs. 4,089-2-0 was due to defendant No. 8. This amount was increased by the High Court to Rs. 6,625-7-0. This was a substantial increase and even though the plaintiffs had earlier deposited the entire amount for redemption including the sum of Rs. 4,089-2-0, they cannot be said to have fulfilled the condition on which redemption was to be allowed to them, Under Ex. P-1 from which we have quoted the relevant passage earlier, it was agreed that the sum of 1250 varahas and the value of improvements would be paid in one lump sum. In the subsequent documents also the same term was included. The respondents contend that interest on the extra amount of compensation for improvement has been awarded by the High Court and this makes it equitable that the appellants should pay mesne profits for the period of their possession after the deposit of the amount found by the trial Judge in court. No question of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs. 17,000/-. The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/- per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]To understand this contention, it is necessary to give a short history of the Law of Limitation between the years 1842 and 1902. In 1842 when Ex.was executed there was no law prescribing a period of limitation for the redemption of a usufructuary mortgage such limit came in 1859 for the first time and a period of 60 years from the date of the mortgage was prescribed. it is this statute which seems to have been the cause for the execution of Exs.); the mortgagees were perhaps afraid that the mortgage could be redeemed at any time within 60 years from the date of the mortgage of 1842. The last date for redemption thus was 1902. By getting the term Certain for 40 years, the date for redemption was shifted by them to 1902 and redemption could not take place till that year. The mortgagors also benefited, because they obtained a release of some properties and received Rs. l00/in cash. The period of 60 years was repeated in the Act of 1871; but it contained a rider that if during the period of 60 years, there was an acknowledgment then the period would run from the date of that acknowledgment. Article 148 of the Limitation Act as it stands today was introduced by the Act of 1877. It makes the 60 years period run from the time when redemption isis no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it. This suit was filed in 1944 and the Act of 1877 governs it.There is no doubt that Kunhi Pakki was not directly bound by Exs.(a). Mr. Desai is right in contending that as Kunhi Pakki was a minor and no guardian signed on his behalf, Ex.(a) cannot be used to show either an acknowledgment by him or an extension of the term of the original usufructuarybinding Kunhi Pakki in this way, no question of extending the period of limitation or of acknowledgment arises, and S. 3 of the Limititation Act is not in the way because time would run only from 1902. This result follows because the mortgagors could not redeem the property including the share of Kunhi Pakki for 40 years from 1862.In this connection, Exs.quite clearly show that Kunhi Pakki considered that he was bound by Ex.and the mortgagors were bound by Ex.His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex.he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs.a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to theshare of Cheriamma but, to the entireshare of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs.and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex.in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex.was independent of Ex.and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendantquestion of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs.The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well.