{"id":191961,"date":"1961-03-16T00:00:00","date_gmt":"1961-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhau-ram-vs-b-baijnath-singh-and-others-on-16-march-1961"},"modified":"2019-02-24T22:52:03","modified_gmt":"2019-02-24T17:22:03","slug":"bhau-ram-vs-b-baijnath-singh-and-others-on-16-march-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhau-ram-vs-b-baijnath-singh-and-others-on-16-march-1961","title":{"rendered":"Bhau Ram vs B. Baijnath Singh And Others on 16 March, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhau Ram vs B. Baijnath Singh And Others on 16 March, 1961<\/div>\n
Equivalent citations: 1961 AIR 1327, \t\t 1962 SCR (1) 358<\/div>\n
Author: M R.<\/div>\n
Bench: Gajendragadkar, P.B., Sarkar, A.K., Subbarao, K., Wanchoo, K.N., Mudholkar, J.R.<\/div>\n
           PETITIONER:\nBHAU RAM\n\n\tVs.\n\nRESPONDENT:\nB.   BAIJNATH SINGH AND OTHERS\n\nDATE OF JUDGMENT:\n16\/03\/1961\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\nSUBBARAO, K.\nWANCHOO, K.N.\n\nCITATION:\n 1961 AIR 1327\t\t  1962 SCR  (1) 358\n CITATOR INFO :\n R\t    1965 SC 241\t (18)\n D\t    1967 SC 940\t (10,11)\n RF\t    1972 SC2162\t (3)\n F\t    1983 SC 786\t (30)\n\n\nACT:\nAppeal-Maintainability-Decree  for   Pre-emption-Pre-emption\namount\tdeposited into court-Amount withdrawn  by  defendant\nWhether\t defendant  can\t challenge  the\t decree\t thereafter-\nApprobation  and  Reprobation-Rewa  State  Pre-emption\tAct,\n1949.\n\n\n\nHEADNOTE:\nIn  a suit instituted by the respondent for the\t enforcement\nof the right of pre-emption against the appellant, the trial\ncourt  dismissed the suit but on appeal a decree was  passed\non March 24, 1952 under which upon the respondent paying the\namount\tfound  payable as purchase money into  court  within\nfour  months, his title to the property would be  deemed  to\nhave  accrued from the date of the payment into court.\t The\nappellant applied for special leave to appeal to the Supreme\nCourt  and leave was granted on May 20, 1953, confining\t the\nappeal to the constitutional point raised therein, that\t the\nRewa  State Pre-emption Act, 1949, was\tunconstitutional  on\nthe  ground that it placed an unreasonable restriction\tupon\nthe right to acquire property enumerated in Art. 19(1)(f) of\nthe Constitution of India.  In the meantime, the  respondent\ndeposited  the\tprice of pre-emption into court\t within\t the\ntime  fixed  in\t the decree and on November  14,  1953,\t the\nappellant withdrew the money from court.  The appeal to\t the\nSupreme\t Court\tcame on for hearing in due  course  and\t the\nquestion  arose\t on a preliminary objection  raised  by\t the\nrespondent   whetber  the  appellant  was   precluded\tfrom\nproceeding with the appeal on the ground that by withdrawing\nthe pre-emption price he must be deemed to have accepted the\ndecree\tand  that he could not, therefore, be heard  to\t say\nthat  the decree was erroneous.\t The respondent relied\tupon\nthe  doctrine that a person cannot be allowed  to  approbate\nand reprobate.\nHeld (Sarkar, J., dissenting), that the act of the appellant\nin  withdrawing the pre-emption price did not amount  to  an\nadoption  by  him of the decree which  he  had\tspecifically\nchallenged  in\this  appeal  and, in  the  absence  of\tsome\nstatutory  provision  or of a well-recognised  principle  of\nequity,\t he could not be deprived of his statutory right  of\nappeal.\t  Accordingly, the appellant was not precluded\tfrom\nproceeding ;with the appeal.\nThe principle that a person who takes benefit under an order\ncannot repudiate that part of the order which is detrimental\nto him, on the ground that he cannot be allowed to approbate\nand reprobate, is applicable only to cases where the\n359\nbenefit\t conferred by the order is something apart from\t the\nmerits of the claim involved.\nA  vendee  in a pre-emption suit against whom  a  decree  is\npassed\thas a right to be paid the pre-emption price  before\nthe  decree  becomes  effective, but  the  price  cannot  be\ncharacterised  as a benefit under the decree; it is only  in\nthe nature of compensation to the vendee for the loss of his\nproperty.\nTinkler\t v.   Hilder,  (1849)  4 Ex.  187:  154\t E.R.  1176,\nVerschuYes Creameries v. Hull and Netherlands Steamship CO.,\n[1921] 2 K.B. 608, Lissenden v. C. A. V. Bosch Ltd.,  [1940]\nA.C. 412, Venkatarayudu v. Chinna, A.I.R. 1930 Mad, 268\t and\nSundra Das v.  Dhanpat Rai, 1907 P.R. No. 16, considered.\nPer  Sarkar, J.-The decree was one and indivisible  and\t the\nappellant  had no right to the money whatsoever\t independent\nof the decree and he could have drawn out the money only  on\nthe  basis  that the decree had been  properly\tpassed.\t  By\nwithdrawing the money he adopted its correctness and  cannot\nnow say it is incorrect.  The prosecution of the appeal will\nresult in the conduct of the appellant becoming inconsistent\nand  he\t cannot, therefore, be allowed to proceed  with\t the\nappeal.\nCase law reviewed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 270 of 1955.
\nAppeal\tby special leave from the judgment and decree  dated
\nMarch  24,  1952,  of  the  Judicial  Commissioner’s  Court,
\nVindhya Pradesh, in First Appeal No. 16 of 1958.
\nAppeal\tby special leave from the judgment and decree  dated
\nMarch  24,  1952,  of  the  Judicial  Commissioner’s  Court,
\nVindhya Pradesh, in First Appeal No. 16 of 1952.
\nL.K. Jha, A. D. Mathur and R. Patnaik, for the appellant.
\nN.C. Chatterjee, and D. N. Mukherjee, for respondent  No.\n<\/p>\n
1.
\n1961.\tMarch 16.  The Judgment of P. B. Gajendragadkar,  K.
\nSubba  Rao,  K.\t N. Wanchoo and J. R.  Mudholkar,  JJ.,\t was
\ndelivered by Mudholkar, J. A. K.  Sarkar,  J.,\tdelivered  a
\nseparate Judgment,
\nMUDHOLKAR,  J.-This  is an appeal by Special leave  and\t the
\nmain  point  involved in it is whether the Rewa\t State\tPre-
\nemption Act, 1949, is unconstitutional on the
\n360<\/span>
\nground\tthat it places an unreasonable restriction upon\t the
\nright  to acquire property enumerated in cl. (1)(f) of\tArt.
\n19  of the Constitution.  But before we hear arguments\tupon
\nthis  point  it is necessary to dispose of  the\t preliminary
\nobjection raised on behalf of’ the plaintiff-respondent\t no.
\n1 by Mr. N. C. Chatterjee to the effect that the  defendant-
\nappellant  is  precluded  from proceeding  with\t the  appeal
\nbecause subsequent to the grant. of special leave to appeal,
\nto  him\t he  withdrew the price\t of  pre-emption  which\t was
\ndeposited  by the respondent No. 1 in the court\t below.\t  He
\ncontends  that\tby  withdrawing the  pre-emption  price\t the
\nappellant  must be deemed to have accepted the decree  which
\nalone  entitled\t him to the amount and that,  therefore,  he
\ncannot\tbe  heard to say that the decree is  erroneous.\t  In
\nshort, Mr. Chatterjee relies upon the doctrine that a person
\ncannot be allowed to approbate and reprobate.
\nIn  support  of his contention, learned counsel\t has  relied
\nupon the well-known case of Tinkler v. Hilder (1) and  other
\ncases  which  follow that decision or which proceed  on\t the
\nsame  reason as that in Tinkler’s case (1).  Those  decisons
\nare: Banku Chandra Bose v. Marium Begum (‘a);  Ramendramohan
\nTagore\tv. Keshabchandra Chanda (2); Mani Ram  v.  Beharidas
\n(3);  S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar  &
\nOrs. (4); Venkatarayudu v. Chinna (5) and Pearce v.  Chaplin
\n(6).\n<\/p>\n
The  two English decisions just referred to and some of\t the
\nIndian\tdecisions  were\t considered in\tVenkata.  rayudu  v.
\nChinna\t(5).   Dealing\twith  them  Venkatasubba  Rao,\t J.,
\nobserved as follows:\n<\/p>\n
\t      “What   is  the  principle  underlying   these
\n\t      decisions When an order shows plainly that  it
\n\t      is intended to take effect in its entirety and
\n\t      that  several  parts of it  depend  upon\teach
\n\t      other,  a\t person cannot adopt  one  part\t and
\n\t      repudiate another.  For instance, if the Court
\n\t      directs that the suit shall be restored on the
\n\t      plaintiff\t paying\t the costs of  the  opposing
\n\t      party,
\n\t      (1)   [1949] 4 Ex. 187: 154 E.R. 1176.
\n\t      (2)   [1934] I.L.R. 61 Cal. 433.
\n\t      (4)   A.I.R. 1927 Mad. 1009.\n<\/p><\/blockquote>\n
\t      (1a) (1915] 21 C.W.N. 232.\n<\/p><\/blockquote>\n
\t      (3)   A.I.R. 1955 Raj. 145.\n<\/p><\/blockquote>\n
\t      (5)   A.I.R. 1930 Mad. 268.\n<\/p><\/blockquote>\n
\t      (6) [1846] 9 Q.B. 802:  115  E. R. 1483.\n<\/p><\/blockquote>\n
\t      361<\/span><\/p>\n
\t      there  is no intention to benefit the  latter,
\n\t      except  on  the terms mentioned in  the  order
\n\t      itself.  If the party receives the costs,\t his
\n\t      act    is\t  tantamount   to    adopting\t the
\n\t      order…………\t According to Halsbury\tthis
\n\t      rule is an application of the doctrine “that a
\n\t      person  may not approbate and  reprobate”\t (13
\n\t      Halsbury,\t para  508)…………………  In
\n\t      other  words,to  allow a party,  who  takes  a
\n\t      benefit  under  such an  order,  to,  complain
\n\t      against  it,  would be to permit a  breach  of
\n\t      faith”.\n<\/p><\/blockquote>\n
 The  view  taken  in the other cases  proceeds\t on  similar
\nreasoning  But\twhat has to be noted is that  in  all  these
\ncases the benefit conferred by the order was something apart
\nfrom  the  merits of the claim in, volved  in  these  cases.
\nWhat  we are called upon to decide is whether the  appellant
\nby  withdrawing\t the pre-emption price can be said  to\thave
\nadopted\t the decree from which he had already  preferred  an
\nappeal.\t  The appellant did not seek to execute the  decree,
\nand indeed the decree did not confer a right upon him to sue
\nout  execution at all.\tThe decree merely conferred a  right
\nupon the plaintiff-respondent No. 1 to deposit the price  of
\npre-emption  and  upon\this doing so,  entitled\t him  to  be
\nsubstituted  in the sale deed in place of the  vendee.\t The
\nact  of the appellant in withdrawing the  pre-emption  price
\nafter  it  was\tdeposited by the  respondent  No.  1  cannot
\nclearly amount to, an adoption by him of the decree which he
\nhad specifically challenged in his appeal.
\nUpon  the  principles underlying the aforesaid\tdecisions  a
\nperson who takes benefit under an order de hors the claim on
\nmerits\tcannot\trepudiate that part of the  order  which  is
\ndetrimental  to him because the order is to take  effect  in
\nits  entirety.\tHow can it be said that a vendee in  a\tpre-
\nemption\t suit  against\twhom a decree is  passed  takes\t any
\n“benefit”  thereunder?\tNo doubt, he has a right to be\tpaid
\nthe pre-emption price before the pre-emption decree  becomes
\neffective   but\t  tile\tprice  of  pre-emption\t cannot\t  be
\ncharacterised as a benefit under the decree.  It is only  in
\nthe nature of compensation to the vendee for the loss of his
\nproperty.\n<\/p>\n
46<\/span>
\n362<\/span><\/p>\n
For  this  reason the principle of  the\t aforesaid  decision
\nwould not apply to such a decree.\n<\/p>\n
A  question similar to the one before us had arisen  in\t the
\nPunjab in several cases and in particular in the judgment of
\nLal  Chand, J., in Sundara Das v. Dhanpat Rai (1). What\t the
\ncourt  held  there  is\tthat the  right\t of  appeal  is\t not
\nforfeited by the vendee merely because he has withdrawn\t the
\nmoney  deposited by the preemptor in whose favour  a  decree
\nfor  pre-emption has been passed.  No reference is  made  by
\nthe learned judge to the decisions in Tinkler’s case (2) and
\nin  Pearce’s,  case (3) and, therefore,\t this  decision\t and
\nother\tsimilar\t decisions  are\t of  little  assistance\t  in
\nconsidering the “argument advanced by Mr. Chatterjee.
\nIt  seems  to  us  however, that  in  the  absence  of\tsome
\nstatutory  provision  or of a well-recognised  principle  of
\nequity, no one can be deprived of his legal rights including
\na  statutory  right  of appeal. The  phrase  “approbate\t and
\nreprobate”  is borrowed from Scotch Law where it is used  to
\nexpres\tthe  principle embodied in the English\tdoctrine  of
\nelection,  namely, that no party can accept and\t reject\t the
\nsame   instrument  (per\t Scrutton,  L.\tJ.,  in\t  Verschures
\nCreameries v. Hull and Netherlands Steamship., Co.,(4).\t The
\nHouse of Lords further pointed out in Lissenden v. C. A.  V.
\nBosch,\tLtd.  (5) that the equitable  doctrine\tof  election
\napplies\t only  when an interest is conferred as\t an  act  of
\nbounty by some instrument.  In that case they held that\t the
\nwithdrawal by a workman of the compensation money  deposited
\nby the employer could not take away the statutory, right  of
\nappeal conferred upon him by the Workmen’s Compensation Act.
\nLord  Maugham,\tafter pointing out the\tlimitations  of\t the
\ndoctrine  of approbate and reprobate- observed\ttowards\t the
\nconclusion of his speech:\n<\/p>\n
\t      “It  certainly  cannot be suggested  that\t the
\n\t      receipt of the sum tendered in any way injured
\n\t      the respondents.\tNeither estoppel nor release
\n\t      in the ordinary sense was suggested.   Nothing
\n\t      was less served than
\n\t      (1) (1907] P. R. No. 16.\n<\/p><\/blockquote>\n
\t      (2)   (1849) 4 Ex. 187: 154 E.R. 1176.
\n\t      (3)   (1846) 9 Q.B. 802: 115 E.R. 1483.
\n\t      (4) [1921] 2 K.B. 608.   (5)  [1940] A.C- 412.\n<\/p><\/blockquote>\n
\t      363<\/span><\/p>\n
\t      the   principles\teither\tof  equity   or\t  of
\n\t      justice.” (pp. 421-422).\n<\/p><\/blockquote>\n
\t      Lord Wright agreed with Lord Maugham and\tLord
\n\t      Atkin  and declined to apply the “formula”  to
\n\t      the appeal before the House because there\t was
\n\t      no   question   of   the\t appellant    having
\n\t      alternative  or mutually exercisable right  to
\n\t      choose from.\n<\/p><\/blockquote>\n
\t      No doubt, as pointed out by Lord At that in  a
\n\t      conceivable case the receipt of a remedy under
\n\t      a\t judgment may be made in such  circumstances
\n\t      as  to  preclude an appeal.  But\the  did\t not
\n\t      think   it  necessary  to\t discuss   in\twhat
\n\t      circumstance the statutory right of appeal may
\n\t      be lost and added:\n<\/p><\/blockquote>\n
\t       “I  only venture to say that when such  cases
\n\t      have   to\t be  considered\t it  may  be   found
\n\t      difficult\t to apply this doctrine of  election
\n\t      to cases where the only right in existence  is
\n\t      that determined by the judgment: and the\tonly
\n\t      conflicting  right is the statutory  right  to
\n\t      seek to set aside or amend that judgment:\t and
\n\t      that  the\t true solution may be found  in\t the
\n\t      words  of Lord Blanesburgh in Moore v.  Cunard
\n\t      Steamship Co. (1)”.\n<\/p><\/blockquote>\n
According to Lord Blanesburgh when an order appealed against
\nand  later  set aside, has been acted upon in  the  meantime
\n“any  mischief so done is undone” by an\t appropriate  order.
\nThus the only question which has to be considered is whether
\nthe  party  appealing has so conducted himself\tas  to\tmake
\nrestitution  impossible or inequitable.\t Thus, according  to
\nthe  House of Lords it is to cases in which a party  has  so
\nconducted  himself  as\tto make\t restitution  impossible  or
\ninequitable  that  the principle on which  the\tdecision  in
\nTinkler’s case (2), is. based, may apply.  Referring to this
\ncase and three other similar cases Lord Atkin observed:\n<\/p>\n
\t      “In any case they form very flimsy  foundation
\n\t      for such a wide- reaching principle applicable
\n\t      to all appeals Its was asserted in this  case:<\/p><\/blockquote>\n
\t      and if they did lead to that result should not
\n\t      be followed.”(pp. 428-429).    (3)
\n\t      The Lissenden case   has thus in clear terms
\n(1) 28\tB.W.C.C. 162.\n<\/p>\n
(2)(1849) 4 Ex- 187; 154 E.R. 1176.\n<\/p>\n
(3) [1940] A.C. 412.\n<\/p>\n
364<\/span><\/p>\n
indicated  what the limitations of the Scotch doctrine\tare.
\nIf, therefore, what was laid down in this case is the common
\nlaw  of England according to its highest judicial  tribunal,
\nit  is\tonly that law which the courts in this\tcountry\t may
\napply on the principles of natural justice and not what\t was
\nsupposed to be the common law in certain earlier decisions.
\nIt  seems to us that a statutory right of appeal  cannot  be
\npresumed to have come to an end because the appellant has in
\nthe meantime abided by or taken advantage of something\tdone
\nby   the  opponent  under  the\tdecree\tand  there   is\t  no
\njustification  for extending the rule in Tinkler’s case\t (1)
\nto  cases  like\t the present.  In our judgment\tit  must  be
\nlimited\t only to those cases where a person has\t elected  to
\ntake a benefit otherwise than on the merits of the claim  in
\nthe  lis under an order to which benefit he could  not\thave
\nbeen entitled except for the order.  Here the appellant,  by
\nwithdrawing the preemption price has not taken a benefit  de
\nhors the merits.  Besides, this is not a case where restitu-
\ntion is impossible or inequitable.  Further.-it seems to  us
\nthat  the existence of a choice between two rights  is\talso
\none of the conditions necessary for the applicability of the
\ndoctrine of approbate and reprobate.  In the case before  us
\nthere\twas  no\t such  choice  before  the  appellant\tand,
\ntherefore,  his\t act  in withdrawing  the  preemption  price
\ncannot\tpreclude  him  for  continuing\this  appeal.\tWe.,
\ntherefore,  overrule the preliminary objection.\t The  appeal
\nwill  now be set down for hearing on merits.  The  costs  of
\nthis hearing will be costs in the appeal.\n<\/p>\n
SARKAR,\t J.-It\tseems  to  me  that  the  objection  to\t the
\nmaintainability of this appeal must succeed.  The  appellant
\nhaving taken the benefit of the decree cannot now  challenge
\nits validity.\n<\/p>\n
The  decree was passed in a suit for preemption\t brought  in
\nMay,  1951 by the respondent Baijnath, whom I will call\t the
\nrespondent. against the appellant, the purchaser of  certain
\nproperty and the vendors, the other respondents who have not
\nappeared  in  this appeal.  The suit was  dismissed  by\t the
\ntrial Court but
\n(1)  (1849) 4 Ex. 187: 154 E.R. 1176.\n<\/p>\n
365<\/span><\/p>\n
on  appeal  it\twas decreed  by\t the  Judicial\tCommissioner
\nVindhya\t Pradesh,  on March 24,1952.  The  learned  Judicial
\nCommissioner held that the respondent had the right of\tpre-
\nemption\t and that the purchase money payable by him  to\t the
\nappellant for preemption of the property, *as Rs. 3,000\t and
\ndirected  the respondent to pay this sum into  court  within
\nfour months.  The respondent duly paid this sum into  court.
\nThe  appellant\tobtained special, leave from this  Court  to
\nappeal\t from\tthe  judgment  of   the\t  learned   Judicial
\nCommissioner  and thereafter withdrew from court the  amount
\npaid in by the respondent.  The present appeal arises  under
\nthis leave.\n<\/p>\n
The decree that was drawn up only stated that the appeal was
\nallowed with costs and the period of grace was four  months.
\nIn  view of Or.\t XX, r. 14, of the Code of Civil  Procedure,
\nthe decree, in spite of its informality, must be  understood
\nas  providing  that upon the respondent\t paying\t the  amount
\nfound  payable as purchase money into court within the\ttime
\nfixed,\tthe  appellant\twould  deliver\tpossession  of\t the
\nproperty to him and his title to it would be deemed to\thave
\naccrued from the date of the payment into court and that, in
\ndefault of such payment the suit would stand dismissed\twith
\ncosts.\n<\/p>\n
Now, there is not the slightest doubt that in with.  drawing
\nthe money from court the appellant had acted entirely on his
\nfree  choice; he had in no way been compelled to do so,\t nor
\nbeen  induced  thereto by any act of  the  respondent.\t The
\nrespondent  had done nothing to put the decree in  execution
\nand  obtain possession of the property from  the  appellant.
\nThe  appellant\tneed not have withdrawn the money if  he  so
\nliked  and that would not in the least have  prejudiced\t his
\ninterest.   He\thas  all along been  in\t possession  of\t the
\nproperty  since he purchased it on June 7, 1950 and  he\t has
\nbeen  in enjoymeint of the money also sine( he\twithdrew  it
\nfrom court on November 14, 1953.\n<\/p>\n
It  seems  to me that on these facts  the  appellant  cannot
\nproceed\t with the appeal.  He cannot be permitted to  pursue
\ninconsistent courses of conduct.  By withdrawing the  money,
\nhe has of his free choice,
\n366<\/span>
\nadopted\t the decree and must, therefore, be  precluded\tfrom
\nchallenging  its  validity.  He had no right  to  the  money
\nexcepting  such\t as the decree gave him.   Having  exercised
\nthat  right  he cannot be heard to say that the\t decree\t was
\ninvalid\t and, therefore, the right which he  had  exercised,
\nhad never existed.\n<\/p>\n
The  rule is well established in England as well as  in\t our
\ncountry, that a litigant is not permitted such\tinconsistent
\ncourses\t of  conduct and, so far as I am aware,\t never\tbeen
\ndeparted  from.\t As early as 1849 in Tinkler v. Hilder\t(1),
\nPollock, C. B., in dealing with a rule to set aside an order
\nsaid, “It might be discharged simply on this narrow  ground,
\nthat,  under  the  circumstances of  this  case,  the  party
\napplying to set aside the order in question in point of fact
\nhas  adopted it by taking something under it”.\tIn  King  v.
\nSimmonds  (2)  and Pearce v. Chaplin (3) the  same  line  of
\nreasoning  was adopted.\t It is true that in these cases\t the
\norders were said to have been adopted because costs, for the
\npayment\t of which they had provided, had been received.\t  It
\nis  also  true that the orders were not such  to  which\t the
\nparties directed to pay the costs, were entitled as a matter
\nof  right.   But  all these do not seem to me  to  make\t any
\ndifference.   The  question is, are the\t circumstances\tsuch
\nthat  it would be inconsistent conduct to accept  a  benefit
\nunder  an order and then to challenge it?  I should  suppose
\nthat for this purpose costs are as much benefit as  anything
\nelse  given  by the order.  Likewise when  the\torders\twere
\ndiscretionary or such to which there was no right ex  debito
\njustitiae, there would be no reason to say that there  could
\nbe  no inconsistency if they were challenged after  benefits
\nunder\tthem   had   been  accepted.   For   deciding\tsuch
\ninconsistency,\t I   am\t  unable  to   discover\t  that\t the
\ndiscretionary nature of the order has any materiality.
\nComing to more recent times, we get the case of Dexters\t Ld.
\nv.  Hill  Crest Oil Co. Ld. (4).  There a  person,  who\t had
\ntaken money under an award made in a commercial\t arbitration
\nin accordance with which a
\n(1)  (1849) 4 Exch. 187: 154 E.R. 1176.\n<\/p>\n
(3)  (1846) 9 Q B 802.\n<\/p>\n
(2) (1845) 7 Q.B. 289.\n<\/p>\n
(4) [1926] 1 K.B- 348.\n<\/p>\n
367<\/span><\/p>\n
judgment had been entered in a special case stated to court,
\nwas held precluded from appealing from that judgment.  This,
\nit  will  be  noticed, was not a case  where  an  order\t was
\nconsidered to have been adopted because of receipt of  costs
\ngiven  by it but because of the receipt of the sum of  money
\nwhich  was  claimed  and  which\t was  given  by\t the  award.
\nScrutton, L. J., observed, (p. 358) “It startles me to\thear
\nit argued that a person can say the judgment is wrong and at
\nthe  same  time accept payment under the judgment  as  being
\nright”.\t  I  will  conclude the\t reference  to\tthe  English
\nauthorities by reading what Lord Russel of Killowen said  in
\nEvans v. Bartlam (1), “a man having accepted a benefit given
\nhim  by\t a  judgment cannot allege  the\t invalidity  of\t the
\njudgment which conferred the benefit”.\n<\/p>\n
Of  the\t cases on the point in our country I  may  refer  to
\nManilal\t Guzrati v. Harendra Lal (2), Banku Chandra Bose  v.
\nMarium\tBegum (3), Humrybux Deora v. Johurmull Bhotoria\t (4)
\nand Venkatarayudu v. Chinna (5).  Hurrybux Deora’s case\t (4)
\nwas an appeal from a decree in a suit for the redemption  of
\na mortgage.  The plaintiff had accepted the amount found  by
\nthe  decree passed by the trial Court to be due to him\tfrom
\nthe mortgagee in possession and receipt of the income of the
\nmortgaged  property,  and had thereafter  filed\t the  appeal
\nasking\tthat  he was entitled to more.\tRankin, C.  J.,\t who
\ndelivered the judgment of the Court, held that there was  no
\ninconsistency in the conduct of the appellant and the rule 1
\nhad so long been discussing had, therefore, no\tapplication.
\nThis  was  plainly right.  The appellant  had  accepted\t the
\ndecree\tpassed\tand  in the appeal  did\t not  challenge\t its
\ncorrectness so far as it went but only contended that it had
\nnot  gone far enough.  As has been said, he was not  blowing
\nhot  and cold but only blowing hotter: see per Greer,  L.J.,
\nin Mills v. Duckworth (6).\n<\/p>\n
Referring to King v. Simmonds (7), Pearce v. Chaplin (8) and
\nTinkler v. Hilder (9) which I have earlier
\n(1) [1937] A.C. 473, 483.(2) (1910) 12 C.L.J. 556.
\n(3) (1916) 21 C.W.N. 232.(4) (1929) 33 C.W N. 711.
\n(5) (1930) 58 M.L.J. 137(6)) [1938] 1 All E. R. 318 32 1.
\n(7) (1845) 7 Q.B. 289.(8) (1846) 9 Q.B. 802.
\n(9) (1849) 4 Exc 1187:\t 154 E.R. 1176
\n368<\/span>
\ncited,\tRankin, C.J., said (p. 714) that they  “are  clearly
\ninapplicable  except  upon the basis that the  Defendant  is
\nseeking to challenge an order after accepting the benefit of
\na  term\t or condition imposed upon the\tOpposite,  Party  at
\nwhose instance the order was made”.  He was of the view that
\nthis  basis  did not exist in the case which he\t had  before
\nhim.\n<\/p>\n
Rankin,\t C.J.,\talso referred to another old  English  case,
\nnamely,\t Kennard v. Harris (1)., There, a rule to set  aside
\nan  award of an arbitrator was discharged when it was  shown
\nthat  the party who had obtained the rule had  accepted\t the
\ncosts  of the reference and the award.\tRankin,\t C.J.,\tsaid
\nwith  reference\t to this case that (p. 713), “A\t person\t who
\naccepts\t costs\tpayable under an award or any other  sum  of
\nmoney given to him by an award is held to be precluded\tfrom
\nasking\tthe Court to set aside the award”.  He however\talso
\nobserved that An award is bad unless it deals with the whole
\nmatter submitted and prima facie cannot be set aside in part
\nonly”.\t  It  may  be  that  Rankin,  C.J.,  was  making   a
\ndistinction,  which is obviously correct, between  an  award
\nwhich can be set aside only as a whole because it is one and
\nindivisible and a judgment which might be in severable parts
\nin  which case, the adoption of a part by a party would\t not
\npreclude  him  from  challenging  another  part\t which\t was
\nindependent.  Rankin, C.J., did not think, and if I may\t say
\nso with respect, correctly, that the principle of Kennard v.
\nHarris\t(1)  had any application to the facts  of  the\tcase
\nbefore him, for, there no part of the judgment was sought to
\nbe   challenged\t  by  the  appeal,  excepting\tperhaps\t  an
\nindependent   part   which  by\timplication   rejected\t the
\nappellant’s claim to a larger sum.\n<\/p>\n
In  Venkatarayudu’s  case (2), Venkatasubba Rao,  J.,  after
\ndiscussing various cases, to some of which I have  referred,
\nobserved,  (p. 141) “What is the principle underlying  these
\ndecisions?  When an order shows plainly that it is  intended
\nto take effect in its entirety and that several parts of  it
\ndepend upon each other,
\n(1)  (1824) 2 B. & C. 80; 107 E.R. 580.\n<\/p>\n
(2)  (1930) 58 M.L.J. 137-\n<\/p>\n
369<\/span><\/p>\n
a person cannot adopt one part and repudiate another”.
\nIt  seems  to me beyond doubt that the\tprinciple  of  these
\ncases  is  applicable to the facts of  the  present  appeal.
\nHere  we  have a decree which is one and  indivisible.\t The
\neffect\tof it is that upon the respondent paying  the  money
\ninto  court  he\t would be entitled to the  property  and  to
\nobtain possession of it and the appellant would be  entitled
\nto  withdraw the money.\t The appellant has no right  to\t the
\nmoney whatsoever independent of the decree; he had no  right
\nto  compel the respondent to purchase the property from\t him
\non  payment  of\t a price.  Indeed  the\tappellant  had\tbeen
\ncontending that the respondent was not entitled to  purchase
\nthe  property from him by paying the price.   The  appellant
\ncould  have drawn out the money only on the basis  that\t the
\ndecree had been properly passed.   Therefore, by withdrawing
\nthe  money he adopted\t its correctness and cannot now\t say
\nit is incorrect.    It\tseems to me that the observation  of
\nVenkatasubba  Rao, J., in Venkatarayudu’s case (1) (P.\t141)
\nthat  ” to allow a party, who takes a benefit under such  an
\norder,\tto complain against it, would be to permit a  breach
\nof  faith”,  would  apply  fully  to  the  conduct  of\t the
\nappellant.   So would the observations of Rankin, C. J.,  in
\nHurrybux Deora’s case (2) on King v. Simmonds (3), Pearce v.
\nChaplin\t (4)  and Tinkler v. Hilder (5).  The present  is  a
\ncase  where the appellant was seeking to challenge an  order
\nafter accepting the benefit of a term or condition, that  is
\nto say, as to the payment of money into court, imposed\tupon
\nthe  respondent at whose instance the order was\t made;\tthat
\nthe obligation to pay money was a term or condition ‘imposed
\nupon the respondent is manifest because the decree  provided
\nthat  if  the  money  was not paid,  the  suit\twould  stand
\ndismissed  with\t costs.\t Again the judgment in\tthe  present
\ncase is like an award for it is one whole and cannot be\t set
\naside in parts.\t Therefore what
\n(1)  (1930) 58 M.L.J. 137.\n<\/p>\n
(3)  (1845) 7 Q.B. 289.\n<\/p>\n
(2)  (1929) 33 C.W.N. 711.\n<\/p>\n
(4)  (1846) 9 Q.B. 802.\n<\/p>\n
(5)  (1849) 4 Exch. 187: 154 E.R. 1176.\n<\/p>\n
47<\/span>
\n370<\/span><\/p>\n
Rankin,\t C.  J., said in regard to Kennard v.  Harris  which
\nturned on an award, namely, that a person who accepts  costs
\nor  a  sum of money given to him by an award cannot  ask  to
\nhave  it  set aside, would also be applicable.\t I  find  it
\nimpossible  to\tconceive  that\tthis  judgment\tconsists  of
\nseveral parts or that such parts are severable.
\nThe  learned counsel for the appellant was able to refer  us
\nto  only  one  case in support of his  contention  that\t the
\nappeal\tcould be proceeded with and that was Sunder  Das  v.
\nDhanpat\t Rai  (2).   That was also a  case  of\tpre-emption.
\nThere,\thowever, the plaintiff who had obtained\t the  decree
\nfor pre-emption in his favour, had executed that decree\t and
\nobtained   possession  of  the\tproperty   concerned.\t The
\ndefendant appealed from the decree but was unsuccessful.  in
\nthe  first appellate court.  He then appealed to  the  Chief
\nCourt  at  Lahore  and when the appeal\twas  pending  there,
\nwithdrew the purchase money paid into court by the plaintiff
\nunder  the decree of the trial Court.  The Chief Court\theld
\nthat  this (lid not preclude the defendant  from  proceeding
\nwith  the  appeal before it.  The facts of  that  case\twere
\nsubstantially  different  from those before us.\t It  may  be
\nsaid  that the defendant having been compelled to part\twith
\nthe property, was justified in withdrawing of the money from
\nthe  court and that a withdrawal in such  circumstances\t did
\nnot  amount  to an adoption of the decree.  That  cannot  be
\nsaid  in  the present case.  Whether on\t the  facts,  Sunder
\nDas’s  case (2) was rightly decided or not, is not a  matter
\non  which  I feel called upon to express  any  opinion.\t  If
\nhowever\t that  case intended to lay down a  principle  which
\nwould warrant the appellant on the facts of the case in band
\nin  proceeding_ with this appeal, I am unable to agree\twith
\nit.   It would then be in conflict with all the\t authorities
\non the point and none of these was noticed in the  judgment,
\nin that case.  I do not think that Sunder Das’s case (2)  is
\nof  sufficient\tauthority to warrant a\tdeparture  from\t the
\nprinciple uniformly followed by the courts.
\n(1)  (1824) 2 B. & C. 801: 107 E.R. 580.\n<\/p>\n
(2)  1907 P.R. No 16.\n<\/p>\n
371<\/span><\/p>\n
It is necessary, however, before I conclude, to refer to the
\ncomparatively  recent  case of Lissenden v. C. A.  V.  Bosch
\nLtd.  (1).  That was a case in which a workman who had\tbeen
\nawarded compensation for partial incapacity up to a  certain
\ndate  accepted\tthe compensation so awarded  and  thereafter
\npreferred  an appeal claiming that compensation should\thave
\nbeen  awarded  to  him beyond that date and so\tlong  as  he
\nshould be incapacitated.  The Court of Appeal feeling itself
\nbound  by  its earlier decision in Johnson  v.\tNewton\tFire
\nExtinguisher  Company  (2) had held,  somewhat\treluctantly,
\nthat the workman having accepted money under the award could
\nnot challenge its validity by an appeal.  In Johnson’s\tcase
\n(2), it appears to have been held that a workman could\tnot.
\naccept part of an award and claim to amend another part\t for
\nthat  would be an attempt to “approbate and  reprobate”\t the
\naward and this could not be allowed.  The House of Lords  in
\nLissenden’s  case (1) held that Johnson’s case (2) had\tbeen
\nwrongly decided and that the workman before it was  entitled
\nto  proceed with the appeal.  The reason for, this view\t was
\nthat acceptance by the workman of what had been found to  be
\ndue  to him does not operate to prevent him  from  appealing
\nfor some further relief.  The case therefore was the same as
\nthat  before Rankin, C. J., in Hurrybux Deora  v.  Johurmull
\nBhotoria (3).  The substance of the decision of the House of
\nLords was that there was no inconsistency between the appeal
\nand the adoption of the award.\tThat however cannot be\tsaid
\nin the case before us now.\n<\/p>\n
The House of Lords also pointed out that the Court of Appeal
\nhad  misunderstood the doctrine against ”   approbating\t and
\nreprobating”.\tIt  was\t said that that was  a\tdoctrine  of
\nScottish  law  which  in  England  had\tbeen  held  by\tHigh
\nauthorities  to be equivalent to the equitable principle  of
\nelection.   It\twas observed that that\tequitable  principle
\ndepended  for  its  application\t on  the  intention  of\t the
\nexecutant   of\tan  instrument\tand  was,   therefore,\t not
\napplicable to a case like the
\n(1) [1940) A.C. 412.\t      (2) [1913] 2 K.B. 111
\n(3)  (1929) 33 C.W.N. 711
\n372<\/span>
\none  the House of Lords had before it.\tIt was also  pointed
\nout  that  the\tcommon\tlaw principle  of  election  had  no
\napplication  either for, it depended on the h  existence  of
\ntwo  rights or remedies, one alone of which could be  chosen
\nand  in\t the case of an appeal there were no two  rights  or
\nremedies.\n<\/p>\n
I do not think the observations of the House of Lords on the
\ndoctrine  against “approbating and reprobating”\t affect\t the
\nquestion  before us.  All the learned Judges  who  delivered
\nopinions  in the case, including Lord Atkin,  who  expressed
\nhimself with some reservation, accepted tile position that a
\nlitigant  may  lose  his right of appeal by  reason  of\t his
\nconduct after the judgment or award for, by such conduct  he
\nmay  be\t estopped  from appealing or may  be  considered  in
\nequity or at law as having released his right of appeal: see
\np.  420,429,  430 and 434.  Lissenden’s case (1)  does\tnot,
\ntherefore, in my view throw any doubt on the principle\tthat
\na  litigant may be precluded from proceeding with an  appeal
\nif  that would be inconsistent with his previous conduct  in
\nregard to the decree challenged by the appeal.\tIt seems  to
\nme  that the courts in England have taken the same  view  of
\nLissenden’s case (1).  In Baxter v. Eckersley (2) the  Court
\nof  Appeal expressly approved of the principle laid down  in
\nDexter’s  case(3).   In Banque Des Marchands  De  Moscou  v.
\nKindersley  (4)\t Evershed, M. R., referring to\tthe  phrases
\n“approbating  and reprobating” and “blowing hot and  blowing
\ncold”  said  at\t p. 119, “These phrases\t must  be  taken  to
\nexpress, first, that the party in question is to be  treated
\nas having made an election from which he cannot resile, and,
\nsecond,\t that  he will not be regarded, at least in  a\tcase
\nsuch  as  the present, as having so elected unless  lie\t has
\ntaken  a  benefit  under or arising out\t of  the  course  of
\nconduct\t which he has first pursued and with which his\tpre-
\nsent  action is inconsistent”.\tThese two cases, it will  be
\nobserved, were decided after Lissenden’s case (1).
\nAll  these  authorities leave no doubt in my mind  that\t the
\nrule preventing inconsistent conduct is firmly
\n(1)  [1940] A.C. 412.\n<\/p>\n
(3)  [1926] 1 K.B. 348.\n<\/p>\n
(2)  [1950] 1 K. B. 480.\n<\/p>\n
(4)  [1951] 1 Ch. 112.\n<\/p>\n
373<\/span><\/p>\n
established.   I think, for the reasons\t earlier  mentioned,
\nthat the rule is properly applicable in the present case and
\nthe appellant cannot be allowed to proceed with the  appeal.
\nI  wish however to make it clear that the  applicability  of
\nthe  rule  will depend on the facts of each  case;  it\twill
\ndepend\ton whether there has been actual  inconsistency.   I
\nhave found that there has been adoption in the present\tcase
\nand the prosecution of the appeal will result in the conduct
\nof the appellant becoming inconsistent.\t That is, all that I
\ndecide.\n<\/p>\n
Before leaving the case, I think I ought to observe that the
\nfact that the appellant had withdrawn the money after he had
\nobtained  leave from this Court makes no difference  to\t the
\napplicability  of the principle.  It was by such  withdrawal
\nthat  he adopted the decree and thereafter he  is  precluded
\nfrom   proceeding  with\t the  appeal.\tThere  is  as\tmuch
\ninconsistency in the present case as there would have  been,
\nif  the\t appellant  had withdrawn the money  before  he\t had
\nobtained the leave.\n<\/p>\n
For these reasons I would dismiss the appeal with costs.
\nBy  COURT:  In accordance with the  majority  judgment,\t the
\npreliminary objection is overruled.  The appeal will now  be
\nset down for hearing on merits.\n<\/p>\n
\t\t\t  Preliminary objection overruled.\n<\/p>\n
\t\t\t   Appeal set down for hearing.\n<\/p>\n
374<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhau Ram vs B. Baijnath Singh And Others on 16 March, 1961 Equivalent citations: 1961 AIR 1327, 1962 SCR (1) 358 Author: M R. Bench: Gajendragadkar, P.B., Sarkar, A.K., Subbarao, K., Wanchoo, K.N., Mudholkar, J.R. PETITIONER: BHAU RAM Vs. RESPONDENT: B. BAIJNATH SINGH AND OTHERS DATE OF JUDGMENT: 16\/03\/1961 BENCH: MUDHOLKAR, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-191961","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhau Ram vs B. Baijnath Singh And Others on 16 March, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhau-ram-vs-b-baijnath-singh-and-others-on-16-march-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhau Ram vs B. 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