# ' BRAU RAM v. B. BAIJNAT;H SINGH AND OTHERS

- **Citation:** [1962] 1 S.C.R. 358
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 270 of 1955
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. Subba Rao, K. N. Wanchoo, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brau-ram-v-b-baijnat-h-singh-and-others-2130
- **Pages:** 16

## Headnote

Appeal-Maintainability-Decree for pre-emption--" Pre-emption amount deposited into court-Amount withdrawn by defendant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.
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)(!) 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 whether 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 beard
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, ]., 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 he allow'ed to
approbate and reprobate, is applicable only to cases where the.
(
1 S.C.R. SUPREME COURT REPORTS
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. n76, Verschures Creameries v. Hull and Netherlands Steamship Co., [1921] 2
K.B. 608, Lissenden v. C. A. V. Bosch Ltd., [1940] A.C, 412,
V enkatarayudu v. Chinna, A'.. I. R. 1930 Mad. 268 and Sundra Das
v, Dhanpat Rai, 1')07 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.

## Text

x961
'March x6.
358
SUPREME COURT REPORTS
[1962] '
BRAU RAM
v.
B. BAIJNAT;H SINGH AND OTHERS
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA
RAO, K. N. WANCHOO and J. R. MuDHOLKAR, JJ.)
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.
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)(!) 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 whether 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 beard
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, ]., 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 he allow'ed to
approbate and reprobate, is applicable only to cases where the.
(
1 S.C.R. SUPREME COURT REPORTS
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. n76, Verschures Creameries v. Hull and Netherlands Steamship Co., [1921] 2
K.B. 608, Lissenden v. C. A. V. Bosch Ltd., [1940] A.C, 412,
V enkatarayudu v. Chinna, A'.. I. R. 1930 Mad. 268 and Sundra Das
v, Dhanpat Rai, 1')07 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.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
270 of 1955.
Appeal by special leave from the judgment and
decree dated March 24, 195!, 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.
19)ll. 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.
Bhau Ram
v.
Baijnath Singh
· MuoooLKAR, J.-This is an appeal by special leave Mudholkar J.
and the main point involved in it is whether the Rewa.
State Pre-emption Act, 1949, is unconstitutional on the
z96z
Bhau Ram
v.
Baijnath Singh
Mudholkar ].
360
SUPREME COURT REPORTS
[1962]
ground that it places an unreasonable restriction upon
the right to acquire property enumerated in cl. (l)(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 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. Bilder(')
and other cases which follow that decision or which
proceed on the same reason as that in Tinkler' s case (' ).
Those decisons are: Ba'fl!ku Chandra Bose-v. Marium
Begum ('a); Ramendramohan Tagore v. Keshabchandra
Chanda('); Mani Ram v. Beharidas('); S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar & Ors.(');
Venkatarayudu v. Chinna (') and Pearce v. Chaplin(').
The two English decisions just referred to and some
of the Indian decisions were considered in V enkatarayudu v. Chinna ('). 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) [1849] 4 Ex. 187: 154 E.R. 1176.
{Ia) [1916] 21 C.W.N. 232,
{2) [1934] I.L.R. 61 Cal. 433.
(3) A.LR. 1955 Raj. 145.
(4) A.I.R. 1927 Mad. 1009.
(5, A.LR. 1930 Mad. 268.
(6) [1846] 9 Q.B. So>: n5 E. R. 1483.
.1
-
.
'
\
1 S.C.R. SUPREME COURT REPORTS
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 involved 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 c4iposited
by the respondent Xo. 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 the 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
Bhau Ra~n
v.
Baijnath Singh
}vJ. udholkar J.
Bhau Ram
v.
Baijnath Singh
Mitdholkar .J.
362
SUPREME COURT REPORTS
[1962]
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 Chanel, 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 (')
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 express 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.,('). 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
(<) [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) [192i] 2 K.B. 608.
(5) [r940] A.C .• p2.
>
_:. -
t .>
.
~ •
1 S.C.R. SUPREME COURT REPORTS
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 Atkin, 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:
"l 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 Go. (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 (') is based, may apply.
Referring to this case and three other similar cases
Lord Atkin observed:
"In any case they form a very flimsy foundation
for such a wide-reaching principle applicable to all
appeals as was asserted in this case: and if they did
lead to that result should not be
followed."
(pp. 428-429).
The Lissenden case(') has thus in clear terms
(1) 28 B.W.C.C. 162.
(z) (1849) 4 Ex. 187; 154 E.R. 1176.
(3) [1940] A.C. 412.
Bkau Ram
v.
Baijnath Singh
M udholkar ] .
.r96r
Bhau Rarn
v.
Baijnath Singh
J\fudholkar ].
364
SUPREME COURT REPORTS
[1962]
indicated what the limitations of the Scotch doctrine
are. If, therefore, what was la.id 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 ta.ken
advantage of something done by the opponent under
the decree and there is no justification for extending
the rule in Tinkler's case(') 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 pre-emption price has not taken a benefit de hors
the merits. Besides, this is not a case where restitution 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
pre-emption 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 pre-emption
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. u76.
• ,,. -
I...
~.
I •
1 S.C.R. SUPREME COURT REPORTS
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
pre-emption of the property, was 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 withdrawing 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 enjoyment of the money also since
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,
Bhau Ram
v.
BaiJnath Singh
Sarkar ].
Bhau Ram
v.
Baijnath Singh
Sarkar j.
-.:
366
SUPREME COURT REPORTS
[1962]
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. Bilder (1), Poliock, 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(') and Pearce v. Chaplin(') 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. ('). There a person, who had taken money under an award made in a
commercial arbitration in accordance with which a
(I) (1R49) 4 Exch. 187: 154 E.R. 1176.
(31 (1846) 9 QB 802.
(2/ (1845) 7 Q.B. 289. •
(4) (1926] I K.B. 348.
I
4 •
'
•
.,
>
1 S.C.R. SUPREME COURT REPORTS
367
judgment had been entered in a special case stated to
r96r
court, was held precluded from appealing from that
Bha" Ram
judgment. This, it will be noticed, was not a case
v.
where an order was considered to have been adopted Baijnath Singh
because of receipt of costs given by it but because of
the receipt of the sum of money which was claimed
5.,/rnr ] ·
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 Manila! Guzrati v. Harendra Lal ('}, Banku
Chandra Bose v. Marium Begum('}, Hurrybux Deora
v. Johurmull Bhotoria (') and
Venkatarayudu v.
Chinna ('). Hurrybux Deora's case (') 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 I 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(').
Referring to King v. Simmonds('}, Pearce v. Chap-'
lin (') and Tinkler v. Bilder(') 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) [1938J I All E.R. 318, 321.
(7) (1845) 7 Q.B. 289.
(8) ('846) 9 Q.B. 802.
(9) (1849) 4 Exch. 187: 154 E.R. u76.
Bhau Ram
v.
Baijnath Singh
Sarkar J.
368
SUPREME COURT REPORTS
(1962J
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('). 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 a.ward 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(') 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 implic>Ltion rejected the appellant's claim to a
larger sum.
In Venkatarayudu's case('), Venkatasubba Rao, J.,
after discussing various cases, to some of which I have
ieferred, 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,
(1J (1824) 2 B. & C. 801; 107 E.R. 580.
(2) (1930) 58 M.L.J. 137.
·•
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I S.C.R. SUPREME COURT REPORTS
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
ofVenkatasubba Rao, J., in Venkatarayudu's case(')
(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('), Pearce v. Chaplin(') and Tinkler v.
Hilder ('). 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
(r) (1930) 58 M.L.J. r37.
(2) (1929) 33 C.W.N, 7II,
"
(3) (1845) 7 Q.B. 289.
(4) (1846) 9 Q.B. 802.
(5) (1849) 4 Exch. 187: 154 E.R. II76.
47
I96I
Bhau Ram
v.
Baijnath Singh
Sarkar ].
r96r
Bhau Rani
v.
Baijnath Singh
Sarkar ].
370
SUPREME COURT REPORTS
[1962]
Rankin, C. J ., said in regard to Kennard v. Harris('),
which turned on an award, namely, thata 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 (').
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 did 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 the money from the court
and that a wit.hdrawal 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 (') 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 hand 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(') is of
sufficient authority to warrant a departure from the
principle uniformly followed by the courts.
(1) (1824) z B. & C. 801: 107 E.R. 580.
(2) 1907 P.R. No 16.
.
•
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l S.C.R. SUPREME COURT REPORTS
371
It is necessary, however, before I conclude, to refer
to the comparatively recent case of Lissenden v.
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 v. Newton Fire Extinguisher Company(') 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('), it app!Jars
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 (') 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 ('). 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. III.
(3) (1929) 33 C.W.N. 7u.
1961
Bhau aa1n
v.
Baijnath Singh
Sarkar } •
I96I
Bhau Ram
v.
Baijnath Singh
Sarkar ].
372
SUPREME COURT REPORTS
[1962]
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
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 the 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 pp. 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 coui:ts
in England have taken the same view of Lissenden's
case(').
In Baxter v. Eckersley(') 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. B., referring to
the phrases "approbating and reprobating" and "blowing hot a,nd 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 he has taken a
benefit under or arising out of the course of conduct
which he has first pursned and with which his present action is inconsistent". These two cases, it will
be observed, were decided after Lissenden's case(').
All these authorities leave no doubt in my mind
that the rule preventing inconsistent conduct is firmly
(I) [1940] A.C. 412.
(2) [1950] I K. B. 480.
(3) [1926] I K.B. 348.
(4) [195t] I Ch. II2.
• L
'
I
. ti
-
.,
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1 S.C.R. SUPREME COURT REPORTS
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 overrnled.
Appeal set down for hearing.
196I
Bhau Rain
v.
Baijtiath Singh
Sark.ir ].