Bhau Ram Vs. B. Baijnath Singh &
Ors  INSC 101 (16 March 1961)
CITATION: 1961 AIR 1327 1962 SCR (1) 358
CITATOR INFO :
R 1965 SC 241 (18) D 1967 SC 940 (10,11) RF
1972 SC2162 (3) F 1983 SC 786 (30)
Pre-emption-Pre-emption amount deposited into court-Amount withdrawn by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)(f) of the Constitution of India. In the meantime, the
respondent deposited the price of pre-emption into court within the time fixed
in the decree and on November 14, 1953, the appellant withdrew the money from
court. The appeal to the Supreme Court came on for hearing in due course and
the question arose on a preliminary objection raised by the respondent 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 heard 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, J., dissenting), that the act
of the appellant in withdrawing the pre-emption price did not amount to an
adoption by him of the decree which he had specifically challenged in his
appeal and, in the absence of some statutory provision or of a well-recognised
principle of equity, he could not be deprived of his statutory right of appeal.
Accordingly, the appellant was not precluded from proceeding ;with the appeal.
The principle that a person who takes benefit
under an order cannot repudiate that part of the order which is detrimental to
him, on the ground that he cannot be allowed to approbate and reprobate, is
applicable only to cases where the 359 benefit conferred by the order is
something apart from the merits of the claim involved.
A vendee in a pre-emption suit against whom a
decree is passed has a right to be paid the pre-emption price before the decree
becomes effective, but the price cannot be characterised as a benefit under the
decree; it is only in the nature of compensation to the vendee for the loss of
Tinkler v. Hilder, (1849) 4 Ex. 187: 154 E.R.
1176, Verschuyes Creameries v. Hull and Netherlands Steamship CO.,  2
K.B. 608, Lissenden v. C. A. V. Bosch Ltd.,  A.C. 412, Venkatarayudu v.
Chinna, A.I.R. 1930 Mad, 268 and Sundra Das v. Dhanpat Rai, 1907 P.R. No. 16,
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, 1952, of the Judicial Commissioner's Court, Vindhya
Pradesh, in First Appeal No. 16 of 1958.
Appeal by special leave from the judgment and
decree dated March 24, 1952, of the Judicial Commissioner's Court, Vindhya
Pradesh, in First Appeal No. 16 of 1952.
L.K. Jha, A. D. Mathur and R. Patnaik, for
N.C. Chatterjee, and D. N. Mukherjee, for
respondent No. 1.
1961. March 16. The Judgment of P. B.
Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was
delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment,
MUDHOLKAR, J.-This is an appeal by Special leave and the main point involved in
it is whether the Rewa State Pre- emption Act, 1949, is unconstitutional on the
360 ground that it places an unreasonable restriction upon the right to acquire
property enumerated in cl. (1)(f) of Art.
19 of the Constitution. But before we hear
arguments upon this point it is necessary to dispose of the preliminary
objection raised on behalf of' the plaintiff-respondent no.
1 by Mr. N. C. Chatterjee to the effect that
the defendant- appellant is precluded from proceeding with the appeal because
subsequent to the grant. of special leave to appeal, to him he withdrew the
price of pre-emption which was deposited by the respondent No. 1 in the court
below. He contends that by withdrawing the pre-emption price the appellant must
be deemed to have accepted the decree which alone entitled him to the amount
and that, therefore, he cannot be heard to say that the decree is erroneous. In
short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed
to approbate and reprobate.
In support of his contention, learned counsel
has relied upon the well-known case of Tinkler v. Hilder (1) and other cases
which follow that decision or which proceed on the same reason as that in
Tinkler's case (1). Those decisons are: Banku Chandra Bose v. Marium Begum
('a); Ramendramohan Tagore v. Keshabchandra Chanda (2); Mani Ram v. Beharidas
(3); S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar & Ors. (4);
Venkatarayudu v. Chinna (5) and Pearce v. Chaplin (6).
The two English decisions just referred to
and some of the Indian decisions were considered in Venkata. rayudu v.
Chinna (5). Dealing with them Venkatasubba
Rao, J., observed as follows:
"What is the principle underlying these
decisions When an order shows plainly that it is intended to take effect in its
entirety and that several parts of it depend upon each other, a person cannot
adopt one part and repudiate another. For instance, if the Court directs that
the suit shall be restored on the plaintiff paying the costs of the opposing
party, (1)  4 Ex. 187: 154 E.R. 1176.
(2)  I.L.R. 61 Cal. 433.
(4) A.I.R. 1927 Mad. 1009.
(1a) (1915] 21 C.W.N. 232.
(3) A.I.R. 1955 Raj. 145.
(5) A.I.R. 1930 Mad. 268.
(6)  9 Q.B. 802: 115 E. R. 1483.
361 there is no intention to benefit the
latter, except on the terms mentioned in the order itself. If the party
receives the costs, his act is tantamount to adopting the order............
According to Halsbury this rule is an application of the doctrine "that a
person may not approbate and reprobate" (13 Halsbury, para
508)..................... In other words, to allow a party, who takes a benefit
under such an order, to, complain against it, would be to permit a breach of
The view taken in the other cases proceeds on
similar reasoning But what has to be noted is that in all these cases the
benefit conferred by the order was something apart from the merits of the claim
in, volved in these cases.
What we are called upon to decide is whether
the appellant by withdrawing the pre-emption price can be said to have adopted
the decree from which he had already preferred an appeal. The appellant did not
seek to execute the decree, and indeed the decree did not confer a right upon
him to sue out execution at all. The decree merely conferred a right upon the
plaintiff-respondent No. 1 to deposit the price of pre-emption and upon his
doing so, entitled him to be substituted in the sale deed in place of the
vendee. The act of the appellant in withdrawing the pre-emption price after it
was deposited by the respondent No. 1 cannot clearly amount to, an adoption by
him of the decree which he had specifically challenged in his appeal.
Upon the principles underlying the aforesaid
decisions a person who takes benefit under an order de hors the claim on merits
cannot repudiate that part of the order which is detrimental to him because the
order is to take effect in its entirety. How can it be said that a vendee in a
pre- emption suit against whom a decree is passed takes any "benefit"
there under? No doubt, he has a right to be paid the pre-emption price before
the pre-emption decree becomes effective but tile price of pre-emption cannot
be characterised as a benefit under the decree. It is only in the nature of compensation
to the vendee for the loss of his property.
46 362 For this reason the principle of the
aforesaid decision would not apply to such a decree.
A question similar to the one before us had
arisen in the Punjab in several cases and in particular in the judgment of Lal
Chand, J., in Sundara Das v. Dhanpat Rai (1). What the court held there is that
the right of appeal is not forfeited by the vendee merely because he has
withdrawn the money deposited by the preemptor in whose favour a decree for
pre-emption has been passed. No reference is made by the learned judge to the
decisions in Tinkler's case (2) and in Pearce's, case (3) and, therefore, this
decision and other similar decisions are of little assistance in considering
the "argument advanced by Mr. Chatterjee.
It seems to us however, that in the absence
of some statutory provision or of a well-recognised principle of equity, no one
can be deprived of his legal rights including a statutory right of appeal. The
phrase "approbate and reprobate" is borrowed from Scotch Law where it
is used to expres the principle embodied in the English doctrine of election,
namely, that no party can accept and reject the same instrument (per Scrutton,
L. J., in Verschures Creameries v. Hull and Netherlands Steamship., Co.,(4).
The House of Lords further pointed out in Lissenden v. C. A. V. Bosch, Ltd. (5)
that the equitable doctrine of election applies only when an interest is
conferred as an act of bounty by some instrument. In that case they held that
the withdrawal by a workman of the compensation money deposited by the employer
could not take away the statutory, right of appeal conferred upon him by the
Workmen's Compensation Act.
Lord Maugham, after pointing out the
limitations of the doctrine of approbate and reprobate- observed towards the
conclusion of his speech:
"It certainly cannot be suggested that
the receipt of the sum tendered in any way injured the respondents. Neither
estoppel nor release in the ordinary sense was suggested. Nothing was less
served than (1) (1907] P. R. No. 16.
(2) (1849) 4 Ex. 187: 154 E.R. 1176.
(3) (1846) 9 Q.B. 802: 115 E.R. 1483.
(4)  2 K.B. 608. (5)  A.C- 412.
363 the principles either of equity or of
justice." (pp. 421-422).
Lord Wright agreed with Lord Maugham and Lord
Atkin and declined to apply the "formula" to the appeal before the
House because there was no question of the appellant having alternative or
mutually exercisable right to choose from.
No doubt, as pointed out by Lord At that in a
conceivable case the receipt of a remedy under a judgment may be made in such
circumstances as to preclude an appeal. But he did not think it necessary to
discuss in what circumstance the statutory right of appeal may be lost and
"I only venture to say that when such
cases have to be considered it may be found difficult to apply this doctrine of
election to cases where the only right in existence is that determined by the
judgment: and the only conflicting right is the statutory right to seek to set
aside or amend that judgment: and that the true solution may be found in the
words of Lord Blanesburgh in Moore v. Cunard Steamship Co. (1)".
According to Lord Blanesburgh when an order
appealed against and later set aside, has been acted upon in the meantime
"any mischief so done is undone" by an appropriate order.
Thus the only question which has to be
considered is whether the party appealing has so conducted himself as to make
restitution impossible or inequitable. Thus, according to the House of Lords it
is to cases in which a party has so conducted himself as to make restitution
impossible or inequitable that the principle on which the decision in Tinkler's
case (2), is. based, may apply. Referring to this case and three other similar
cases Lord Atkin observed:
"In any case they form very flimsy
foundation for such a wide- reaching principle applicable to all appeals Its
was asserted in this case:
and if they did lead to that result should
not be followed."(pp. 428-429). (3) The Lissenden case has thus in clear
terms (1) 28 B.W.C.C. 162.
(2)(1849) 4 Ex- 187; 154 E.R. 1176.
(3)  A.C. 412.
364 indicated what the limitations of the
Scotch doctrine are.
If, therefore, what was laid down in this
case is the common law of England according to its highest judicial tribunal,
it is only that law which the courts in this country may apply on the
principles of natural justice and not what was supposed to be the common law in
certain earlier decisions.
It seems to us that a statutory right of
appeal cannot be presumed to have come to an end because the appellant has in
the meantime abided by or taken advantage of something done by the opponent
under the decree and there is no justification for extending the rule in
Tinkler's case (1) to cases like the present. In our judgment it must be
limited only to those cases where a person has elected to take a benefit
otherwise than on the merits of the claim in the lis under an order to which
benefit he could not have been entitled except for the order. Here the
appellant, by withdrawing the preemption price has not taken a benefit de hors
the merits. Besides, this is not a case where restitu- tion is impossible or
inequitable. Further.-it seems to us that the existence of a choice between two
rights is also one of the conditions necessary for the applicability of the
doctrine of approbate and reprobate. In the case before us there was no such
choice before the appellant and, therefore, his act in withdrawing the
preemption price cannot preclude him for continuing his appeal. We., therefore,
overrule the preliminary objection. The appeal will now be set down for hearing
on merits. The costs of this hearing will be costs in the appeal.
SARKAR, J.-It seems to me that the objection
to the maintainability of this appeal must succeed. The appellant having taken
the benefit of the decree cannot now challenge its validity.
The decree was passed in a suit for
preemption brought in May, 1951 by the respondent Baijnath, whom I will call
the respondent. against the appellant, the purchaser of certain property and
the vendors, the other respondents who have not appeared in this appeal. The
suit was dismissed by the trial Court but (1) (1849) 4 Ex. 187: 154 E.R. 1176.
365 on appeal it was decreed by the Judicial
Commissioner Vindhya Pradesh, on March 24,1952. The learned Judicial
Commissioner held that the respondent had the right of pre- emption and that
the purchase money payable by him to the appellant for preemption of the
property, *as Rs. 3,000 and directed the respondent to pay this sum into court
within four months. The respondent duly paid this sum into court.
The appellant obtained special, leave from
this Court to appeal from the judgment of the learned Judicial Commissioner and
thereafter withdrew from court the amount paid in by the respondent. The
present appeal arises under this leave.
The decree that was drawn up only stated that
the appeal was allowed with costs and the period of grace was four months.
In view of Or. XX, r. 14, of the Code of
Civil Procedure, the decree, in spite of its informality, must be understood as
providing that upon the respondent paying the amount found payable as purchase
money into court within the time fixed, the appellant would deliver possession
of the property to him and his title to it would be deemed to have accrued from
the date of the payment into court and that, in default of such payment the
suit would stand dismissed with costs.
Now, there is not the slightest doubt that in
with. drawing the money from court the appellant had acted entirely on his free
choice; he had in no way been compelled to do so, nor been induced thereto by
any act of the respondent. The respondent had done nothing to put the decree in
execution and obtain possession of the property from the appellant.
The appellant need not have withdrawn the
money if he so liked and that would not in the least have prejudiced his
interest. He has all along been in possession of the property since he
purchased it on June 7, 1950 and he has been in enjoyment of the money also
sine( he withdrew it from court on November 14, 1953.
It seems to me that on these facts the
appellant cannot proceed with the appeal. He cannot be permitted to pursue
inconsistent courses of conduct. By withdrawing the money, he has of his free
choice, 366 adopted the decree and must, therefore, be precluded from
challenging its validity. He had no right to the money excepting such as the
decree gave him. Having exercised that right he cannot be heard to say that the
decree was invalid and, therefore, the right which he had exercised, had never
The rule is well established in England as
well as in our country, that a litigant is not permitted such inconsistent
courses of conduct and, so far as I am aware, never been departed from. As
early as 1849 in Tinkler v. Hilder (1), Pollock, C. B., in dealing with a rule
to set aside an order said, "It might be discharged simply on this narrow
ground, that, under the circumstances of this case, the party applying to set
aside the order in question in point of fact has adopted it by taking something
under it". In King v.
Simmonds (2) and Pearce v. Chaplin (3) the
same line of reasoning was adopted. It is true that in these cases the orders
were said to have been adopted because costs, for the payment of which they had
provided, had been received. It is also true that the orders were not such to
which the parties directed to pay the costs, were entitled as a matter of
right. But all these do not seem to me to make any difference. The question is,
are the circumstances such that it would be inconsistent conduct to accept a
benefit under an order and then to challenge it? I should suppose that for this
purpose costs are as much benefit as anything else given by the order. Likewise
when the orders were discretionary or such to which there was no right ex
debito justitiae, there would be no reason to say that there could be no
inconsistency if they were challenged after benefits under them had been
accepted. For deciding such inconsistency, I am unable to discover that the
discretionary nature of the order has any materiality.
Coming to more recent times, we get the case
of Dexters Ld. v. Hill Crest Oil Co. Ld. (4). There a person, who had taken
money under an award made in a commercial arbitration in accordance with which
a (1) (1849) 4 Exch. 187: 154 E.R. 1176.
(3) (1846) 9 Q B 802.
(2) (1845) 7 Q.B. 289.
(4)  1 K.B- 348.
367 judgment had been entered in a special
case stated to court, was held precluded from appealing from that judgment.
This, it will be noticed, was not a case where an order was considered to have
been adopted because of receipt of costs given by it but because of the receipt
of the sum of money which was claimed and which was given by the award.
Scrutton, L. J., observed, (p. 358) "It
startles me to hear it argued that a person can say the judgment is wrong and
at the same time accept payment under the judgment as being right". I will
conclude the reference to the English authorities by reading what Lord Russel
of Killowen said in Evans v. Bartlam (1), "a man having accepted a benefit
given him by a judgment cannot allege the invalidity of the judgment which
conferred the benefit".
Of the cases on the point in our country I
may refer to Manilal Guzrati v. Harendra Lal (2), Banku Chandra Bose v. Marium
Begum (3), Humrybux Deora v. Johurmull Bhotoria (4) and Venkatarayudu v. Chinna
(5). Hurrybux Deora's case (4) was an appeal from a decree in a suit for the
redemption of a mortgage. The plaintiff had accepted the amount found by the
decree passed by the trial Court to be due to him from the mortgagee in
possession and receipt of the income of the mortgaged property, and had
thereafter filed the appeal asking that he was entitled to more. Rankin, C. J.,
who delivered the judgment of the Court, held that there was no inconsistency
in the conduct of the appellant and the rule 1 had so long been discussing had,
therefore, no application.
This was plainly right. The appellant had
accepted the decree passed and in the appeal did not challenge its correctness
so far as it went but only contended that it had not gone far enough. As has
been said, he was not blowing hot and cold but only blowing hotter: see per
Greer, L.J., in Mills v. Duckworth (6).
Referring to King v. Simmonds (7), Pearce v.
Chaplin (8) and Tinkler v. Hilder (9) which I have earlier (1)  A.C. 473,
483.(2) (1910) 12 C.L.J. 556.
(3) (1916) 21 C.W.N. 232.(4) (1929) 33 C.W N.
(5) (1930) 58 M.L.J. 137(6))  1 All E.
R. 318 32 1.
(7) (1845) 7 Q.B. 289.(8) (1846) 9 Q.B. 802.
(9) (1849) 4 Exc 1187: 154 E.R. 1176 368
cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable
except upon the basis that the Defendant is seeking to challenge an order after
accepting the benefit of a term or condition imposed upon the Opposite, Party
at whose instance the order was made". He was of the view that this basis
did not exist in the case which he had before him.
Rankin, C.J., also referred to another old
English case, namely, Kennard v. Harris (1)., There, a rule to set aside an
award of an arbitrator was discharged when it was shown that the party who had
obtained the rule had accepted the costs of the reference and the award.
Rankin, C.J., said with reference to this case that (p. 713), "A person
who accepts costs payable under an award or any other sum of money given to him
by an award is held to be precluded from asking the Court to set aside the
award". He however also observed that An award is bad unless it deals with
the whole matter submitted and prima facie cannot be set aside in part
only". It may be that Rankin, C.J., was making a distinction, which is
obviously correct, between an award which can be set aside only as a whole
because it is one and indivisible and a judgment which might be in severable
parts in which case, the adoption of a part by a party would not preclude him
from challenging another part which was independent. Rankin, C.J., did not
think, and if I may say so with respect, correctly, that the principle of
Harris (1) had any application to the facts
of the case before him, for, there no part of the judgment was sought to be
challenged by the appeal, excepting perhaps an independent part which by
implication rejected the appellant's claim to a larger sum.
In Venkatarayudu's case (2), Venkatasubba
Rao, J., after discussing various cases, to some of which I have referred,
observed, (p. 141) "What is the principle underlying these decisions? When
an order shows plainly that it is intended to take effect in its entirety and
that several parts of it depend upon each other, (1) (1824) 2 B. & C. 80;
107 E.R. 580.
(2) (1930) 58 M.L.J. 137- 369 a person cannot
adopt one part and repudiate another".
It seems to me beyond doubt that the
principle of these cases is applicable to the facts of the present appeal.
Here we have a decree which is one and
indivisible. The effect of it is that upon the respondent paying the money into
court he would be entitled to the property and to obtain possession of it and
the appellant would be entitled to withdraw the money. The appellant has no
right to the money whatsoever independent of the decree; he had no right to
compel the respondent to purchase the property from him on payment of a price.
Indeed the appellant had been contending that the respondent was not entitled
to purchase the property from him by paying the price. The appellant could have
drawn out the money only on the basis that the decree had been properly passed.
Therefore, by withdrawing the money he adopted its correctness and cannot now
say it is incorrect. It seems to me that the observation of Venkatasubba Rao,
J., in Venkatarayudu's case (1) (P. 141) that " to allow a party, who
takes a benefit under such an order, to complain against it, would be to permit
a breach of faith", would apply fully to the conduct of the appellant. So
would the observations of Rankin, C. J., in Hurrybux Deora's case (2) on King
v. Simmonds (3), Pearce v. Chaplin (4) and Tinkler v. Hilder (5). The present
is a case where the appellant was seeking to challenge an order after accepting
the benefit of a term or condition, that is to say, as to the payment of money
into court, imposed upon the respondent at whose instance the order was made;
that the obligation to pay money was a term or condition 'imposed upon the
respondent is manifest because the decree provided that if the money was not
paid, the suit would stand dismissed with costs. Again the judgment in the
present case is like an award for it is one whole and cannot be set aside in
parts. Therefore what (1) (1930) 58 M.L.J. 137.
(3) (1845) 7 Q.B. 289.
(2) (1929) 33 C.W.N. 711.
(4) (1846) 9 Q.B. 802.
(5) (1849) 4 Exch. 187: 154 E.R. 1176.
47 370 Rankin, C. J., said in regard to
Kennard v. Harris which turned on an award, namely, that a person who accepts
costs or a sum of money given to him by an award cannot ask to have it set
aside, would also be applicable. I find it impossible to conceive that this
judgment consists of several parts or that such parts are severable.
The learned counsel for the appellant was able
to refer us to only one case in support of his contention that the appeal could
be proceeded with and that was Sunder Das v.
Dhanpat Rai (2). That was also a case of
There, however, the plaintiff who had
obtained the decree for pre-emption in his favour, had executed that decree and
obtained possession of the property concerned. The defendant appealed from the
decree but was unsuccessful. in the first appellate court. He then appealed to
the Chief Court at Lahore and when the appeal was pending there, withdrew the
purchase money paid into court by the plaintiff under the decree of the trial
Court. The Chief Court held that this (lid not preclude the defendant from
proceeding with the appeal before it. The facts of that case were substantially
different from those before us. It may be said that the defendant having been
compelled to part with the property, was justified in withdrawing of the money
from the court and that a withdrawal in such circumstances did not amount to an
adoption of the decree. That cannot be said in the present case. Whether on the
facts, Sunder Das's case (2) was rightly decided or not, is not a matter on
which I feel called upon to express any opinion. If however that case intended
to lay down a principle which would warrant the appellant on the facts of the
case in band in proceeding_ with this appeal, I am unable to agree with it. It
would then be in conflict with all the authorities on the point and none of
these was noticed in the judgment, in that case. I do not think that Sunder
Das's case (2) is of sufficient authority to warrant a departure from the
principle uniformly followed by the courts.
(1) (1824) 2 B. & C. 801: 107 E.R. 580.
(2) 1907 P.R. No 16.
371 It is necessary, however, before I
conclude, to refer to the comparatively recent case of Lissenden v. C. A. V.
Bosch Ltd. (1). That was a case in which a workman who had been awarded
compensation for partial incapacity up to a certain date accepted the
compensation so awarded and thereafter preferred an appeal claiming that
compensation should have been awarded to him beyond that date and so long as he
should be incapacitated. The Court of Appeal feeling itself bound by its
earlier decision in Johnson v. Newton Fire Extinguisher Company (2) had held,
somewhat reluctantly, that the workman having accepted money under the award
could not challenge its validity by an appeal. In Johnson's case (2), it
appears to have been held that a workman could not.
accept part of an award and claim to amend
another part for that would be an attempt to "approbate and
reprobate" the award and this could not be allowed. The House of Lords in
Lissenden's case (1) held that Johnson's case (2) had been wrongly decided and
that the workman before it was entitled to proceed with the appeal. The reason
for, this view was that acceptance by the workman of what had been found to be
due to him does not operate to prevent him from appealing for some further
relief. The case therefore was the same as that before Rankin, C. J., in
Hurrybux Deora v. Johurmull Bhotoria (3). The substance of the decision of the
House of Lords was that there was no inconsistency between the appeal and the
adoption of the award. That however cannot be said in the case before us now.
The House of Lords also pointed out that the
Court of Appeal had misunderstood the doctrine against " approbating and
reprobating". It was said that that was a doctrine of Scottish law which
in England had been held by High authorities to be equivalent to the equitable
principle of election. It was observed that that equitable principle depended
for its application on the intention of the executant of an instrument and was,
therefore, not applicable to a case like the (1) [1940) A.C. 412. (2)  2
K.B. 111 (3) (1929) 33 C.W.N. 711 372 one the House of Lords had before it. It
was also pointed out that the common law principle of election had no
application either for, it depended on the h existence of two rights or
remedies, one alone of which could be chosen and in the case of an appeal there
were no two rights or remedies.
I do not think the observations of the House
of Lords on the doctrine against "approbating and reprobating" affect
the question before us. All the learned Judges who delivered opinions in the
case, including Lord Atkin, who expressed himself with some reservation,
accepted tile position that a litigant may lose his right of appeal by reason
of his conduct after the judgment or award for, by such conduct he may be
estopped from appealing or may be considered in equity or at law as having
released his right of appeal: see p. 420,429, 430 and 434. Lissenden's case (1)
does not, therefore, in my view throw any doubt on the principle that a
litigant may be precluded from proceeding with an appeal if that would be
inconsistent with his previous conduct in regard to the decree challenged by
the appeal. It seems to me that the courts in England have taken the same view
of Lissenden's case (1). In Baxter v. Eckersley (2) the Court of Appeal
expressly approved of the principle laid down in Dexter's case(3). In Banque
Des Marchands De Moscou v.
Kindersley (4) Evershed, M. R., referring to
the phrases "approbating and reprobating" and "blowing hot and
blowing cold" said at p. 119, "These phrases must be taken to
express, first, that the party in question is to be treated as having made an
election from which he cannot resile, and, second, that he will not be
regarded, at least in a case such as the present, as having so elected unless
lie has taken a benefit under or arising out of the course of conduct which he
has first pursued and with which his pre- sent action is inconsistent".
These two cases, it will be observed, were decided after Lissenden's case (1).
All these authorities leave no doubt in my
mind that the rule preventing inconsistent conduct is firmly (1)  A.C.
(3)  1 K.B. 348.
(2)  1 K. B. 480.
(4)  1 Ch. 112.
373 established. I think, for the reasons
earlier mentioned, that the rule is properly applicable in the present case and
the appellant cannot be allowed to proceed with the appeal.
I wish however to make it clear that the
applicability of the rule will depend on the facts of each case; it will depend
on whether there has been actual inconsistency. I have found that there has
been adoption in the present case and the prosecution of the appeal will result
in the conduct of the appellant becoming inconsistent. That is, all that I
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
By COURT: In accordance with the majority
judgment, the preliminary objection is overruled. The appeal will now be set
down for hearing on merits.
Preliminary objection overruled.
Appeal set down for hearing.