Madras High Court Evokes Doctrine Of 'Approbate & Reprobate', Holds A Party Can't Take Contradictory Stands In Different Courts

Madras High Court has evoked the 'doctrine of approbate and reprobate' to hold that a party cannot claim a right over a property when he had obtained another Decree from the competent Civil Court on the ground that no right or title was conveyed to him under the sale deed.

Justice N. Anand Venkatesh observed that the defendant party claiming right over the schedule property cannot take two contradictory stands before two different authorities/ courts. The judge observed that the position is well settled by the Indian Courts and foreign courts as well.

In the case at hand, the defendant claiming right over the Schedule property had obtained a decree in 1975 from the Civil Court by taking a stand that the vendor of the property, one Mr Dayalan, did not convey any right or title under the sale deed since the property was already acquired by the Tamil Nadu Housing Board. He sought for a refund of the entire sale consideration along with the cost incurred by him. While the suit filed by the defendant was pending, the parties came to an agreement and through a joint endorsement and a sum of Rs. 7000/- from the vendor in full quits. This was recorded and a decree was passed by the Civil Court.

The court observed that Birmingham v. Kirwan (1805 2 Sch. & Lef. 449) has set out the well-established rule of equity that a man cannot approbate and reprobate. Though the principle originated in Scotland and is the foundation of the principle of elections, the same has been followed by Indian Supreme Court in Gosain v. Yashpal Dhir, (1992) 4 SCC 683 and Premalata @ Sunita v. Naseeb Bee, 2022 LiveLaw (SC) 317. Therefore, the court noted in the order as below:

"... By virtue of this Decree, the respondent has given up his rights and title over the property that was purchased by him under Ex.B3 [sale deed involving vendor Dayalan]. Under such circumstances, it will not be open to the respondent to take a completely contrary stand as if the property was not acquired by the Government and he continues to be the owner of the property. This is where the principle of approbate and reprobate comes into play."

In Premalata @ Sunita, the bench of Justices MR Shah and BV Nagarathna had observed that a litigant cannot be permitted to take two different/contradictory stands before two different forums while applying the doctrine of approbate and reprobate on a revenue matter.

In Union of India v. N Murugesan (2022 2 SCC 25), the apex court held that the doctrine of approbate and reprobate is a principle emerging from common law and not Section 115 of the Evidence Act. It noted as below:

"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."

This part of the judgment in N Murugesan was also referred to by the Madras High Court while rejecting the claim of the petitioner and noting that the lower courts unnecessarily ventured to examine the ownership of the defendant over the schedule property on other grounds.

Other Observations

The court was considering an appeal filed by two persons over three schedule properties out of which the ownership of the appellants over the first two schedule properties was upheld by the lower courts. The plaintiffs sought further relief of delivery of vacant possession of the 'C' schedule property after directing the defendant to remove the superstructures on the ground that it was owned by them. According to them, this property is situated on the eastern side of the property owned by the plaintiffs, comprising 'A' Schedule and 'B' Schedule properties. This adverse finding alone was interfered by the High Court without granting any right to the appellants.

By an additional affidavit, they also submitted that the said property has not been acquired by any authority.

With respect to the third portion of the property, i.e, marked as Schedule C Property, the trial court and the lower appellate court held that there are no grounds to rule in favour of the plaintiffs for the reliefs of recovery of possession and ownership. The lower appellate court held that the respondent/ defendant owns the land on the eastern side of 'A' nad 'B' Schedule properties. Accordingly, a second appeal was filed by the appellants before High Court with respect to C Schedule property.

The defendant submitted that the government only acquired 18 cents and 6 7/8 cents that constitute C Schedule property was left untouched by the acquiring authority.

After considering the rival submissions, the court noted in the order that:

"There is no requirement for this Court to undertake the exercise of finding out how much of property was acquired and how much was left out by the Government. This is in view of the fact that the respondent went before the competent Civil Court and obtained a Decree on the ground that no right or title was conveyed to him under the sale deed dated 27.8.1974 marked as Ex.B3. This crucial fact was lost sight of by both the Courts below and both the Courts unnecessarily undertook the exercise of finding out the ownership of the respondent over the 'C' schedule property"

The bench also added that the report of the Advocate Commissioner on C Schedule property was erroneous and non-reliable and it was not supported by necessary pleadings as is required under Order VII Rule 3 of C.P.C by the appellants. As far as the rights of the appellant over C Schedule property is taken into account, it can be said that they further have to substantiate their right over the property and they identify the property to form part of the A and B schedule properties.

"Insofar as the right claimed by the respondent in the property acquired through Ex.B3 sale deed and the construction put up by him in the said property is concerned, it is for the Government and the Housing Board to initiate appropriate action", the court added.

The court further observed that the appellants have tried to improve their case at every step of the proceedings:

"Both the Courts below on analysing the oral and documentary evidence, have given a categorical finding that there is no evidence to hold that a portion of the property has been constructed in the 'A' and 'B' schedule properties and that the respondent has caused obstruction to the access of the appellant for the convenient enjoyment of 'A' and 'B' schedule properties. At every stage, the appellants have attempted to improve their case and only at the appellate stage, the appellants came up with the plea that the building constructed by the respondent is obstructing their pathway right"

Accordingly, the court dismissed the appeals finding no perversity in the other findings of the lower courts.

Case Title: Mr.G.Nagaiyan & Anr. v. Mr. K. Palanivel

Case No: Second Appeal No.125 of 2014 and MP.1 of 2014 and CMP No.3572 of 2022

Citation: 2022 LiveLaw (Mad) 126

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