Indian Kanoon - Search engine for Indian Law

47. In Rajashan State Industrial Development and Investment Corporation and another vs. Diamond & Gem Development Corporation Limited and another9, the Hon‟ble Apex Court held that a party cannot be permitted to „blow hot-blow cold‟ or „approbate and reprobate‟. Paragraphs 15 and 16 are reproduced as under:-

"15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. (Vide: Nagubai Ammal and Ors. v. B. Shama Rao and Ors.: AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar: AIR 1965 SC 1216; Ramesh Chandra Sankla etc. v. Vikram Cement etc.: AIR 2009 SC 713; Pradeep Oil Corporation v. Municipal Corporation of Delhi and Anr.: AIR 2011 SC 1869; Cauvery Coffee (2013) 5 SCC 479 Traders, Mangalore v. Hornor Resources (International) Co. Limited:

48. Recently, in Union of India and others vs. N. Murugesan and others10, the Hon‟ble Apex Court observed and held on the maxim of „approbate and reprobate‟ as under in paragraphs 26 and 27:

"26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.

Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act".

The observations of Scrutton, LJ on which the Appellants rely are as follows:

(2022) 2 SCC 25 A Plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election -- namely, that no party can accept and reject the same instrument: Ker v. Wauchope [(1819) 1 Bli 1, 21]: Douglas-Menzies v. Umphelby [(1908) AC 224, 232].

The doctrine of election is not however confined to instruments. 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. That is to approbate and reprobate the transaction.

It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Vol. XIII, p. 464, para 512: