Document Fragment View

Matching Fragments

23. Yet another aspect considered by the Court below is that in the oral testimony, the appellant, PW.1, has deposed that Thailammai Theatre was allotted to his paternal uncle, Mr.Sait (brother of the appellant's father, N.Gnanasekaran). But as per Ex.P16, dated 28.07.1990, Unregistered copy of the sale agreement, the appellant has entered into an agreement of sale with a third party, with reference to the site in Thailammai Theatre. It is also the case of the appellant that another theatre, viz., Natesh Theatre exclusively belongs to him and by mortgaging the said Theatre, he has obtained a loan from Tiruvarur Kamalambika Co-operative Bank. Though the appellant has contended that there was no partition of the joint family properties, after the demise of his father, K.Gnanasekaran, but insofar as Natesh Theatre at Thiruvarur, is concerned, he had claimed the same as his exclusive property. So also is the case, with reference to a site in Thailammai Theatre, where he has entered into an agreement of sale with a third party, claiming himself as the exclusive owner. Analysising the oral testimony of PW.1, the appellant, with reference to Ex.P16 document, the Court below has further observed that when the abovesaid property is stated to be belonging to PW.1, the contention that all the properties were joint family properties, cannot be accepted. Thus, as rightly observed by the Court below that if all the joint family properties are stated to have been possessed, enjoyed and maintained by all the members of the joint family, as joint family properties, then, he cannot claim exclusive right or interest to the site and Natesh Theatre. On the one hand, the appellant claims that all the properties derived from his father, late K.Gnanasekaran, are joint family properties, which remained intact without partition and on the other hand, claiming himself to be exclusive owner of some properties, has borrowed loan from a Co-operative Bank. He cannot approbate and reprobate. Useful reference can be made to the following decisions,

(i) In I.T. Commissioner Vs. Firm Muar, reported in AIR 1965 SC 1216, at paragraph 13, the Supreme Court held as follows:-

".........The doctrine of approbate and reprobate is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provisions of a statute."

(ii) In R.N.Gosain Vs. Yashpal Dhir, reported in 1992 (4) SCC 683, at paragraph 10, the Supreme Court held as follows:-

10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd, reported in 1921 (2) KB 608, 612 (CA) Scrutton, L.J.] According to Halsbury's Laws of England, 4th Edn., Vol. 16, after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside. (para 1508)
(iii) In Prashant Ramachandra Deshpande Vs. Maruti Balaram Haibatti, reported in 1995 Supp (2) 539, the principle of "approbate and reprobate" has been explained. At Paragraph 2, it is held, "2. .........Similarly, on the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. Vide Halsbury's Laws of England, 4th Edn., Vol. 16, para 1507."
(iv) In Cauvery Coffee Traders, Mangalore, Vs. Hornor Resources (International) Company Limited., reported in 2011 (10) SCC 420, the Supreme Court at paragraphs 33 to 35, held as follows:-
33. In R.N. Gosain v. Yashpal Dhir, reported in 1992 (4) SCC 683 = 2011 (1) SCC (Civ) 451, this Court has observed as under: (SCC pp.687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.