What is the meaning of approbate and reprobate
The doctrine of “approbate and reprobate” is only a species of estoppel
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
These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree
Union of India and Others v. N. Murugesan and Others [2022 (2) SCC 25],
“Approbate and reprobate
26. These phrases are borrowed from the Scots 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.
Supreme Court in Mumtaz Yarud Dowla Wakf Vs M/s Badam Balakrishna Hotel Pvt. Ltd. & Ors. (Date 20-10-2023)
We would like to quote the following judgments for better appreciation and understanding of the said principle:
Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-02, para 23)
“23. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate. It is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. [(1921) 2 KB 608 (CA)], and in particular, the observations of Scrutton, LJ., at p. 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is 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 thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J. : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)] , KB p. 611)
‘… 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, L.J. on which the appellants rely are as follows : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)], KB pp. 611-12)
‘… 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 Bligh PC 1 at p. 21 : 4 ER 1 at p. 8] : Douglas-Menzies v. Umphelby [1908 AC 224 at p. 232 (PC)] . 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:
‘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, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it.’
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144] : (SCC pp. 153- 54, paras 22-23 & 25-26)
“22. The doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216] .)
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329]). In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has observed as under : (R.N. Gosain case [(1992) 4 SCC 683] , SCC pp. 687-88, para 10)
‘10. The 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’.’
More Reference
1. P.V Nidhish & Ors. v. Kerala State Wakf Board & Anr. [2023 SCC OnLine SC 519]
2. Madras Bar Association v. Union of India and Another [2022 (12) SCC 455]
3. Rashid Wali Beg v. Farid Pindari and Others [2022 (4) SCC 414]
4. Neena Aneja and Another v. Jai Prakash Associates Ltd. [2022 (2) SCC 161]
5. Union of India and Others v. N. Murugesan and Others [2022 (2) SCC 25]
6. Kiran Devi v. Bihar State Sunni Wakf Board and Others [2021 (15) SCC 15]
7. Telangana State Wakf Board & Anr. v. Mohamed Muzafar [2021 (9) SCC 179]
8. Indore Development Authority v. Manoharlal and Others [2020 (8) SCC 129]
9. Hindustan Zinc Ltd. (HZL) v. Ajmer Vidyut Vitran Nigam Ltd. [2019 (17) SCC]
10. M. Hariharasudhan v. R. Karmegam [2019 (10) SCC 94]
11. Punjab Wakf Board v. Sham Singh Harike & and Another [2019 (4) SCC 698]
12. Faseela M. v. Munnerul Islam Madrasa Committee and Another [2014 (16) SCC 38]
13. Punjab Wakf Board v. Pritpal Singh & Anr. [2013 SCC Online SC 1345]
14. Ramesh Gobindram (Dead) through LRs. v. Sugra Humayun Mirza Wakf [2010 (8) SCC 726]
15. Eureka Forbes Ltd. v. Allahabad Bank [2010 (6) SCC 193]
16. Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]
17. Sarwan Kumar and Another v. Madan Lal Aggarwal [2003 (4) SCC 147]
18. Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma [1997 (5) SCC 460]
19. Ashok Kapil v. Sana Ullah [1996 (6) SCC 342]
20. Hitendra Vishnu Thakur and Others v. State of Maharashtra and Another [1994 (4) SCC 602]
21. Chiranjilal Shrilal Goenka (Deceased) through LRs. v. Jasjit Singh and Others [1993 (2) SCC 507]
22. Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through His LRs [1990 (1) SCC 193]
23. New India Insurance Co. Ltd. v. Smt. Shanti Misra, Adult [1975 (2) SCC 840]
24. Chandrika Misir and Another v. Bhaiya Lal [1973 (2) SCC 474]
25. Dhulabhai etc. v. State of Madhya Pradesh and Another [1968 (3) SCR 662]
26. Kiran Singh and Others. v. Chaman Paswan and Others [1955 (1) SCR 117]
27. General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing [1872 SCC OnLine PC 16]
Foreign Cases :
1. Zhang v. Zemin [2010 (79) NSWLR 513]
2. Federated Engine Drivers and Firemen’s Association of Australasia v. Broken Hill Proprietary Co. Ltd. [1911 (12) CLR 398]
3. Wolverhampton New Waterworks Co. v. Hawkesford [1859 (6) C.B. (NS) 336]