This article has been written by Prithviraj Dey, a student of pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

The doctrine of approbate and reprobate in common parlance can be understood to signify the proverb that ‘you can’t eat your cake and have it too!’. It traces its roots to laws of Scotland and is essentially a principle of equity. It is further based on the rule of estoppel. In Rupchand Ghosh v. Sarveswar Chandra, it has been held that doctrines under the rule of estoppel can be termed as an equitable estoppel if no statute expressly provides for it. It has also been held in Jaikaran Singh v. Sita Ram Aggarwala, that §115 of the Indian Evidence Act is not exhaustive. Further, there may be rules of estoppel which may be applicable in India other than what is contained in §115 of the Indian Evidence Act. 

Lord Atkin’s remarks on the doctrine of approbate and reprobate has been quoted in many a judgement. He observed that this doctrine applies in a situation when a person has to make a choice between two rights but he cannot choose both. If he chooses one between the two, then cannot afterwards choose to assert the other. Lord Blackburn observed on similar lines that when a man has to choose one or the other of two inconsistent things and when he has made his election, there cannot be a retraction from the option so chosen.
In HALSBURY’S Laws of England it has been further observed: 

The doctrine of approbate and reprobate is a species of estoppel which lies in between estoppel by record and estoppel in pais. The doctrine of election is based on the rule of estoppel and the principle that one cannot approbate and reprobate is inherent in it. The doctrine of election and underlying doctrine of approbate and reprobate is a rule of equity. Where a person knowingly accrues the benefits of an instrument, he is estopped from denying the validity or the binding effect of such instrument. 

Further,the principle of approbate and reprobate is based on the maxim “allegans contraria non est audiendus”, which means that when one utters statements contradictory to one another the same shall not be heard.

It is also another principle of the doctrine of approbate and reprobate that it is an application of the doctrine of election. Its operation is confined to reliefs claimed with respect to the same transaction and as also to the persons who are parties to that very transaction. The principle of election in essence, does not forbid a party from claiming the same relief against parties who are different persons in an altogether different suit. Relief can also be claimed in respect of the same property even if the grounds of relief are different and inconsistent. In situations where there is absolutely no election between two alternative and mutually exclusive remedies or two alternative courses of action, the principle of estoppel by election would not apply. If the parties take up a particular stand before the Court at one stage of the litigation it is not open to them to further approbate and reprobate and to rescind from that position.

In MPB v LGK, a recent English decision has most succinctly laid down the conditions for the doctrine of approbate and reprobate to apply in a situation as follows: 

(i) The first condition is that the party must have elected or made his choice in clear and unequivocal terms;

(ii) The second condition is that it is not necessary for the electing party to have taken a benefit from the choice he has made as such;

(iii) The third condition is that the electing party’s subsequent conduct must be inconsistent with his earlier election or approbation.

In essence, the doctrine is about preventing an inconsistent conduct and ensuring a just outcome. Let us look at some of the landmark judgements in India that clarify the scope of the doctrine of approbate and reprobate. 

Hemanta Kumari Devi v. Parasanna Kumar, AIR 1930 Cal 32

In this case the plaintiff was a co-sharer landlord holding 14 annas of land and she filed applications for permission to file a suit for settlement of fair and equitable rent holdings. The defendants contested the maintainability of the application as according to them the applications would not lie in the trial court. The courts below accepted the contestation of the defendants. The plaintiff withdrew her applications and having effectuated a partition with her co-sharers, her holdings came to be 16 and she made necessary changes to her applications which allowed her to prove the facts of her case. She then instituted fresh suits. The defendants now took the position in court that the earlier applications were maintainable and as such operated as a bar to the fresh suits.

The Calcutta High Court held that:

a) the subject matter of the suits was different after the partition;

b) a party litigant cannot be permitted to a make a volte face, take some inconsistent positions in court, to play fast and loose, to blow not and cold, to approbate and reprobate, to the detriment of his opponent; 

c) the doctrine of approbate and reprobate applies not only to the successive stages of the same suit, but also to another suit other than the one in which the position was taken up, provided the second suit grows out of the judgment in the first; 

d) the applications were withdrawn but that withdrawal was after the defendant’s objection had prevailed in the two courts below and would have prevailed forever unless the plaintiff was in a position to get over it by establishing certain facts.

Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593

The plaintiff alleged that certain proceedings in a suit filed earlier were collusive. He adduced evidence in proof of these allegations, persuaded the court to give findings to that effect, and consequently obtained a decree on the basis of that finding. It was argued by the defendants that he could not be permitted to change his stance and plead in the present case that the proceedings earlier were not collusive and succeed on it. The defendants by relying on an English decision Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd., put forth the argument that one cannot approbate and reprobate. 

In Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd.  an agent delivered goods to the customer in contravention of the instructions given to him by the principal. Initially a suit was filed against the purchaser to recover the price of goods. A decree was obtained and another suit was filed subsequently against the agent for damages. The King’s Bench held that such an action was barred. It held that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him to go back on his election and claim the alternative relief. 

In this case however, it was held that the plaintiff obtained no advantage against the appellants by pleading in the succeeding suit that the proceedings in the preceding one were collusive. The plaintiffs did acquire rights to the suit properties by acting on those pleadings. There was no election, because the only relief which the plaintiff claimed in the subsequent suit that he was entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid it, and there being no question of estoppel, the plea that the proceedings in the former suit are not collusive was available to the plaintiff.

It is pertinent to note the difference between the doctrines of approbate and reprobate and res judicata which was explained in a decision of the Bombay High Court in Yamunabai Purushottam Deogirikar v. Mathurabhai Nilkanth Choudhuri. It held that for the doctrine of res judicata to apply in a case, the proceedings thereunder attain finality and the same set of facts cannot be contested again between the same parties. It binds the parties and the parties operating in any subsequent suit between them. The doctrine of res judicata is a rule of procedure. It acts as a fetter on the judicial determination and operates against the courts to take up the same facts. Doctrines under the estoppel operate against the parties to a lis to plead or prove a particular set of facts contradictory to one another. 

Bhabu Ram v. Baij Nath Singh 

In this case, the defendant-appellant after being granted leave for a Special Leave Petition withdrew the pre-emption price that was deposited pursuant to the decree passed in the court below. The respondents argued that the appellant was precluded from proceeding with the appeal in the Supreme Court since he was accruing a benefit from the very decree against which he went in appeal. This according to the respondent amounted to having accepted the decree. The respondents argument was premised on the doctrine of approbate and reprobate. 

The Supreme Court observed: 

1) The doctrine of approbation and reprobation is applicable in cases wherein a person has elected to take benefit on merits of the claim in the litigation and under an order to which benefit he could not have been entitled had it not been for the order.

 (2) That the person receiving a benefit under the order must have a course of choice between two rights.

(3) That after the exercise of the choice, restitution was impossible or inequitable.

The majority in a ratio of 4:1 held that:

a) the benefit conferred by the order was de hors the merits of the claim involved in this case and the appellant could not have repudiated that part of the order which was detrimental to him and further, the application of the doctrine must be limited only to those cases where a person has elected to take a benefit on the merits of the claim in the lis under an order;

b) the appellant had a right to be paid the pre-emption price before the pre-emption decree became effective but the price of pre-emption could not be characterised as a benefit under the decrees since it was only in the nature of compensation to the vendee for the loss of his property;

c) statutory right of appeal cannot be presumed to have subsumed because the appellant in the meanwhile had taken an advantage of something done by the opponent under the decree;

d) the act of the appellant in withdrawing the pre-emption price after it was deposited by the respondent was not tantamount to an adoption by him of the decree which he had specifically challenged in his appeal;

e) there was no choice to be made by the appellant in this case, and, therefore, his act in withdrawing the pre-emption price could not have precluded him for continuing his appeal.

CIT v. V. MR. P. Firm Muar

The assessees in this case took a benefit under the scheme propounded by the Government of India which contained a condition that if any amounts realized as revived debts subsequently made would be taken as income. In this case it was contended that the assessees were precluded from contending that the amounts realized towards the revived debts are not taxable on the principle of approbate and reprobate. 

The Supreme Court held:

The doctrine of “approbate and reprobate” applies only to the conduct of parties. It was held that this doctrine would not operate against the provisions of a statute. If a particular income is not taxable under the Income Tax Act, it could not be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either eligible to tax under the taxing statute or it is not. If it is not, the Income Tax Officer has no power to impose tax on the said income.

Union of India v. Bridge & Roof Company (I) Limited

In this case owing to the disputes between the parties, the matter was referred to the arbitration. Claims and counter-claims were filed before the arbitrator and after a hearing before him an award was passed by him. An appeal was made on the ground that the arbitrator had no jurisdiction to decide the counter-claim and by deciding the counter-claim the arbitrator has also travelled beyond jurisdiction. 

The Supreme Court held that since the party contesting the jurisdiction of the arbitrator to decide the counter-claims had in fact invited the arbitrator to decide those counter-claims could not take such a position. It applied the doctrine of approbate and reprobate and held that once a party invites an arbitrator to decide certain claims, that party cannot contradict itself and say that the arbitrator has no jurisdiction to decide those questions. It further held that a party cannot approbate and reprobate is a principle embedded in almost all forms of civil adjudication and is also attached in arbitration. Therefore, the court found no merit in this point and dismissed the appeal accordingly.

In a catena of cases it has been held that where a party succeeds on the plea that tribunals like the Revenue Court or Rent Control Court had no jurisdiction to entertain the application of the petitioner, and the civil court alone had jurisdiction, later cannot turn round in the civil court and say that the civil court had no jurisdiction. 

On similar lines it has also been held Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, and Union of India v. Muralidhara Menon, that having invoked the jurisdiction of the appellate Court by preferring an appeal, it is no longer open to the appellants to take a contrary view and to urge that such an appeal is not maintainable.

Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. 

In this case a purchase agreement was executed between the applicants and the respondents. The goods in respect of the agreement were dispatched to the respondents and the payment was made in full to the applicants. The final settlement amount of US $1.5 million had been received by them applicants. Despite the final settlement, the applicants had repeatedly been sending reminders to the respondents to make good the balance payment under the said purchase contract, but no payment had been made. The respondents averred that the amount was accepted erroneously. Pursuant to the arbitration clause in the purchase agreement, the applicants filed an application for the appointment of an arbitrator for the dispute before the Supreme Court. 

The court held that:

a) the transaction stood concluded between the parties after extensive and exhaustive bilateral deliberations with a clear intention to bring about a quietus to the dispute and that the intent and conduct of the parties squarely point to the fact that they wanted to put an end to the dispute and not to carry it further;

b) by relying on its decision in N. Gosainv. Yashpal Dhir, no party can accept and reject the same instrument and a person cannot state at one time that a transaction is valid, obtain an advantage thereunder and then turn round and say it is void for the purpose of securing some other advantage;

c) when one accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience;

d) a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had;

e) as per the facts and circumstances of the case, the applicants could not take a complete somersault and agitate the issue that the offer made by the respondents had erroneously been accepted.

Bhagwat Sharan v. Purushottam

In this case the plaintiff and defendants filed a suit for eviction of an occupant in which he claimed that the property had been bequeathed to him. According to the defendants, the plaintiff having accepted the will and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint family property. 

The plaintiff and defendants by accepting the bequest under the will elected to accept the will. In respect of wills, the doctrine of approbate and reprobate has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of the will. 

Conclusion

Thus, having glanced at some of the judgements delivered in India underscoring the doctrine of approbate and reprobate, it can be said that the doctrine has firm foundation in our jurisprudence. We have also looked at the established principles when and how this doctrine can be invoked and how the courts are guided to provide relief in such cases.

• Rupchand Ghosh v. Sarveswar Chandra, (1906) 33 Cal 915
• Jaikaran Singh v. Sita Ram Aggarwala, AIR 1974 P 364
• Yamunabai Purushottam Deogirikar v. Mathurabhai Nilkanth Choudhuri, AIR 2010 (NOC) 109 (Bom)
• In HALSBURY’S Laws of England 4th Edn., Vol. 16, para 1507, page. 1012
• MPB v LGK [2020] EWHC 90
• Bhabu Ram v. Baij Nath Singh, AIR 1961 SC 1327 
• CIT v. V. MR. P. Firm Muar, (1965) 1 SCR 815 : AIR 1965 SC 1216 : (1965) 56 ITR 67
• Union of India v. Bridge & Roof Company (I) Limited, 2006 SCC OnLine Cal 158 : (2006) 2 CHN 263 : (2006) 3 ICC 432 : (2006) 3 Arb LR 428 at page 267
• Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366
• Union of India v. Muralidhara Menon, (2009) 9 SCC 304
• Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd., (2011) 10 SCC 420
• R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683
• Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387
• Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608]

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