APPROBATE AND REPROBATE

THE PRINCIPLE OF APPROBATION AND REPROBATION

The Latin maxim qui approbat non reprobat (one who approbates cannot
reprobate) is the concept behind the principle of Approbation and Reprobation. The
meaning of the English word “Approbation” is the official recognition or approval of
any document or instrument whereas the meaning of the word “Reprobation” is the
severe disapproval of the same. As going by even the simple English meaning of these
terms it can very well be understood that these terms are of contrasting nature and
cannot exist on the same page of legality. The law does not permit one person to say
that a particular transaction is valid to attain some benefit out of it and then later on
disregard the same transaction stating that it is invalid. According to Halsbury's Laws
of England, "after taking 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" 1.
The simple concept behind this principle is that a party has to decide for itself a remedy.
It cannot both, approbate and then reprobate a transaction. So as to say, that a party
cannot both accept and reject the same instrument.

Few settled case laws stating that a party cannot both approbate and reprobate
an instrument are as follows:

(i) State of Punjab and Ors. Vs. Dhanjit Singh Sandhu 2

21. In our considered opinion defaulting allottees of valuable plots cannot be allowed
to approbate and reprobate by first agreeing to abide by terms and conditions of
allotment and later seeking to deny their liability as per the agreed terms.

(ii) R.N. Gosain Vs. Yashpal Dhir3

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 any thereby obtain some advantage, to which he could only be entitled on the

1
. Halsbury’s Laws Of England, 4th Edition, Vol. 16, para 1508
2
AIR 2014 SC 300
3
AIR 1993 SC 352
 footing that it is valid, and then turn round and say it is void for the purpose of securing
some other advantage".

(iii)The Rajasthan State Industrial Development and Investment Corporation and

Anr. Vs. Diamond and Gem Development Corporation Ltd. and Anr. 4
9. 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.

(iv) Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport 5
53. Now the question is whether the contesting respondent on a complete volte-face of
its previous stand can urge its case of the irrevocable license before the Estate Officer
and now before this Court?

54. The answer has to be firmly in the negative. Is an action at law a game of chess?
Can a litigant change and choose its stand to suit its convenience and prolong civil
litigation on such prevaricated pleas?

55. The common law doctrine prohibiting approbation and reprobation is a facet of the
law of estoppel and well established in our jurisprudence also.

56. The doctrine of election was discussed by Lord Blackburn in the decision of the
House of Lords in Benjamin Scarf v. Alfred George Jardine (1881-82) 7 AC 345,
wherein the learned Lord formulated "...a party in his own mind has thought that he
would choose one of two remedies, even though he has written it down on a
memorandum or has indicated it in some other way, that alone will not bind him; but
so soon as he has not only determined to follow one of his remedies but has
communicated it to the other side in such a way as to lead the opposite party to believe
that he has made that choice, he has completed his election and can go no further; and

4
AIR 2013 SC 1241
5
(2010) 10 SCC 422
whether he intended it or not, if he has done an unequivocal act...the fact of his having
done that unequivocal act to the knowledge of the persons concerned is an election."

57. In Tinkler v. Hilder (1849) 4 Exch 187, Parke, B., stated that where a party had
received a benefit under an Order, it could not claim that it was valid for one purpose
and invalid for another.

58. In Clough v. London and North Western Rail Co. (1861-73) All ER 646 the Court
referred to Comyn's Digest, wherein it has been stated: "If a man once determines his
election, it shall be determined forever." In the said case, the question was whether in
a contract or fraud, whether the person on whom the fraud was practiced had elected
to avoid the contract or not. The Court held that as long as such party made no election,
it retained the right to determine it either way, subject to the fact that an innocent third
party must not have acquired an interest in the property while the former party is
deliberating. If a third party has acquired such an interest, the party who was
deliberating will lose its right to rescind the contract. Once such party makes its
election, it is bound to its election forever.

59. In Harrison v. Wells 1966 (3) All ER 524, Salmon LJ, in the Court of Appeal,
observed that the rule of estoppel was founded on the well-known principle that one
cannot approbate and reprobate. The doctrine was further explained by Lord Justice
Salmon by holding "it is founded also on this consideration, that it would be unjust to
allow the man who has taken full advantage of a lease to come forward and seek to
evade his obligations under the lease by denying that the purported landlord was the
landlord.

60. In Kok Hoong v. Leong Cheong Kweng Mines Ltd. 1964 AC 993, the Privy Council
held that "a litigant may be shown to have acted positively in the face of the court,
making an election and procuring from it an order affecting others apart from himself,
in such circumstances the court has no option but to hold him to his conduct and refuse
to start again on the basis that he has abandoned."
 63. This Court has also applied the doctrine of election in C. Beepathumma and Ors.
v. V.S. Kadambolithaya and Ors.6, wherein this Court relied on Maitland as saying:
"That he who accepts a benefit under a deed or will or another instrument must adopt
the whole contents of that instrument, must conform to all its provisions and renounce
all rights that are inconsistent with it." (Maitlands Lectures on Equity, Lecture 18).
This Court also took note of the principle stated in White & Tudor's Leading Case in
Equity volume 18th edition at p.444 - wherein it is stated, "Election is the obligation
imposed upon a party by Courts of equity to choose between two inconsistent or
alternative rights or claims in cases where there is clear intention of the person from
whom he derives one that he should not enjoy both... That he who accepts a benefit
under a deed or will adopt the whole contents of the instrument."

(v) M/s New Bihar Biri Leaves Co. & Ors. Vs. State of Bihar & Ors. 7
50. It is a fundamental principle of general application that if a person of his own
accord, accepts a contract on certain terms and works out the contract, he cannot be
allowed to adhere to and abide by some of the terms of the contract which proved
advantageous to him and repudiate the other terms of the same contract which might
be disadvantageous to him. The maxim is qui approbat non reprobat (one who
approbates cannot reprobate).

(vi) Shyam Telelink Ltd. now Sistema Shyam Teleservices Ltd. Vs. Union of India
(UOI)8
13. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is
firmly embodied in English Common Law and often applied by Courts in this country.
It is akin to the doctrine of benefits and burdens which at its most basic level provides
that a person taking advantage under an instrument which both grants a benefit and
imposes a burden cannot take the former without complying with the latter. A person
cannot approbate and reprobate or accept and reject the same instrument.

17. American Jurisprudence, 2nd Edition, Volume 28, pages 677-680 discusses
'Estoppel by acceptance of benefits' in the following passage:

6
1964 (5) SCR 836
7
(1981) 1 SCC 537
8
(2010) 10 SCC 165
 Estoppel by the acceptance of benefits: Estoppel is frequently based upon the
acceptance and retention, by one having knowledge or notice of the facts, of benefits
from a transaction, contract, instrument, regulation which he might have rejected or
contested. This doctrine is obviously a branch of the rule against assuming inconsistent
positions.
As a general principle, one who knowingly accepts the benefits of a contract or
conveyance is estopped to deny the validity or binding effect on him of such contract or
conveyance.

(vii) Chairman & M.D., N.T.P.C. Ltd Vs. M/S. Reshmi Constructions 9
7. In Halsbury's Laws of England, 4th Edition, Vol. 16 (Reissue) para 957 at page 844
it is stated:

"On the principle that a person may not approbate and reprobate a special species of
estoppels has arisen. The principle that a person may not approbate and reprobate
express 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.

(2) That he will 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."

Therefore, through all these judicial pronouncements we understand that this

principle in law has been construed to keep up the spirit of equity in law. That, a party
once has acquired some benefit or extracted some advantage from some contract,
transaction or an order claiming it to be valid, later on, cannot claim it to be invalid to
obtain some other advantage. A party cannot approbate then reprobate the same
instrument.

9
AIR 2004 SCC 1330