http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: BHAU RAM

       Vs.

RESPONDENT: B.   BAIJNATH SINGH AND OTHERS

DATE OF JUDGMENT: 16/03/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR 1327            1962 SCR  (1) 358  CITATOR INFO :  R          1965 SC 241  (18)  D          1967 SC 940  (10,11)  RF         1972 SC2162  (3)  F          1983 SC 786  (30)

ACT: Appeal-Maintainability-Decree  for   Pre-emption-Pre-emption amount  deposited into court-Amount withdrawn  by  defendant Whether  defendant  can  challenge  the  decree  thereafter- Approbation  and  Reprobation-Rewa  State  Pre-emption  Act, 1949.

HEADNOTE: 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 Art. 19(1)(f) 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

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  v.   Hilder,  (1849)  4 Ex.  187:  154  E.R.  1176, VerschuYes Creameries v. Hull and Netherlands Steamship CO., [1921] 2 K.B. 608, Lissenden v. C. A. V. Bosch Ltd.,  [1940] A.C. 412, Venkatarayudu v. Chinna, A.I.R. 1930 Mad, 268  and Sundra Das v.  Dhanpat Rai, 1907 P.R. 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. Case law reviewed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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. L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N.C. 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. (1)(f) of  Art. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

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 v. 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 v. Marium Begum (’a);  Ramendramohan Tagore  v. Keshabchandra Chanda (2); Mani Ram  v.  Beharidas (3);  S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar  & Ors. (4); Venkatarayudu v. Chinna (5) and Pearce v.  Chaplin (6). The  two English decisions just referred to and some of  the Indian  decisions  were  considered in  Venkata.  rayudu  v. 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)   [1949] 4 Ex. 187: 154 E.R. 1176.               (2)   [1934] I.L.R. 61 Cal. 433.               (4)   A.I.R. 1927 Mad. 1009.               (1a) (1915] 21 C.W.N. 232.               (3)   A.I.R. 1955 Raj. 145.               (5)   A.I.R. 1930 Mad. 268.               (6) [1846] 9 Q.B. 802:  115  E. R. 1483.               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  words,to  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

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 v. 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 v. Hull and Netherlands Steamship., Co.,(4).  The House of Lords further pointed out in Lissenden v. 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)   (1849) 4 Ex. 187: 154 E.R. 1176.               (3)   (1846) 9 Q.B. 802: 115 E.R. 1483.               (4) [1921] 2 K.B. 608.   (5)  [1940] A.C- 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

             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 v.  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."(pp. 428-429).    (3)               The Lissenden case   has thus in clear terms (1) 28  B.W.C.C. 162. (2)(1849) 4 Ex- 187; 154 E.R. 1176. (3) [1940] A.C. 412. 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.,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

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)  (1849) 4 Ex. 187: 154 E.R. 1176. 365 on  appeal  it  was decreed  by  the  Judicial  Commissioner Vindhya  Pradesh,  on March 24,1952.  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. 3,000  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 v. Hilder  (1),

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

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  v. Simmonds  (2)  and Pearce v. 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. v.  Hill  Crest Oil Co. Ld. (4).  There a  person,  who  had taken money under an award made in a commercial  arbitration in accordance with which a (1)  (1849) 4 Exch. 187: 154 E.R. 1176. (3)  (1846) 9 Q B 802. (2) (1845) 7 Q.B. 289. (4) [1926] 1 K.B- 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 v. 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 v. Harendra Lal (2), Banku Chandra Bose  v. Marium  Begum (3), Humrybux Deora v. Johurmull Bhotoria  (4) and Venkatarayudu v. 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,  L.J., in Mills v. Duckworth (6).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

Referring to King v. Simmonds (7), Pearce v. Chaplin (8) and Tinkler v. Hilder (9) which I have earlier (1) [1937] A.C. 473, 483.(2) (1910) 12 C.L.J. 556. (3) (1916) 21 C.W.N. 232.(4) (1929) 33 C.W N. 711. (5) (1930) 58 M.L.J. 137(6)) [1938] 1 All E. R. 318 32 1. (7) (1845) 7 Q.B. 289.(8) (1846) 9 Q.B. 802. (9) (1849) 4 Exc 1187:   154 E.R. 1176 368 cited,  Rankin, C.J., 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,  C.J.,  also referred to another old  English  case, namely,  Kennard v. 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,  C.J.,  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,  C.J.,  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, C.J., did not think, and if I may  say so with respect, correctly, that the principle of Kennard v. 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; 107 E.R. 580. (2)  (1930) 58 M.L.J. 137- 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

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 v. Simmonds (3), Pearce v. Chaplin  (4)  and Tinkler v. 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)  (1930) 58 M.L.J. 137. (3)  (1845) 7 Q.B. 289. (2)  (1929) 33 C.W.N. 711. (4)  (1846) 9 Q.B. 802. (5)  (1849) 4 Exch. 187: 154 E.R. 1176. 47 370 Rankin,  C.  J., said in regard to Kennard v.  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  v. 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)  (1824) 2 B. & C. 801: 107 E.R. 580. (2)  1907 P.R. No 16. 371 It is necessary, however, before I conclude, to refer to the comparatively  recent  case of Lissenden v. C. A.  V.  Bosch

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

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  v.  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  v.  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) A.C. 412.          (2) [1913] 2 K.B. 111 (3)  (1929) 33 C.W.N. 711 372 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.  420,429,  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 v. Eckersley (2) the  Court of  Appeal expressly approved of the principle laid down  in Dexter’s  case(3).   In Banque Des Marchands  De  Moscou  v. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

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)  [1940] A.C. 412. (3)  [1926] 1 K.B. 348. (2)  [1950] 1 K. B. 480. (4)  [1951] 1 Ch. 112. 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. 374