LexBHAU RAM versus B. BAIJNATH SINGH AND OTHERS
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x961 'March x6. 358 SUPREME COURT REPORTS [1962] ' BRAU RAM v. B. BAIJNAT;H SINGH AND OTHERS (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, K. N. WANCHOO and J. R. MuDHOLKAR, JJ.) Appeal-Maintainability-Decree for pre-emption--" Pre-emp- tion amount deposited into court-Amount withdrawn by defendant -Whether defendant can challenge the decree thereafter-Approba- tion and Reprobation-Rewa State Pre-emption Act, 1949. In a suit instituted by the respondent for the enforcement of the right of pre-emption against the appellant, the trial court dismissed the suit but on appeal a decree was passed on March 24, 1952, under which upon the respondent paying the amount found payable as purchase money into court within four months, his title to the property would be deemed to have accrued from the date of the payment into court. The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20, 1953, confining the appeal to the constitu- tional point raised therein, that the Rewa State Pre-emption Act, 1949, was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in Art. 19(1)(!) of the Constitution of India. In the meantime, the respondent deposited the price of pre-emp- tion into court within the time fixed in the decree and on November 14, 1953, the appellant withdrew the money from court. The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whether the appellant was precluded from proceeding with the appeal on the ground that by with- drawing the pre-emption price he must be deemed to have accepted the decree and that he could not, therefore, be beard to say that the decree was erroneous. The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate. Held (Sarkar, ]., dissenting), that the act of the appellant in withdrawing the pre-emption price did not amount to an adop- tion by him of the decree which he had specifically challenged in his appeal and, in the absence of some statutory provision or of a well-recognised principle of equity, he could not be deprived of his statutory right of appeal. Accordingly, the appellant was not precluded from proceeding with the appeal. The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detri- mental to him, on the ground that he cannot he allow'ed to approbate and reprobate, is applicable only to cases where the. ( 1 S.C.R. SUPREME COURT REPORTS 359 benefit conferred by the order is something apart from the merits of the claim involved. A vendee in a pre-emption suit against whom a decree is passed has a right to be paid the pre-emption price before the decree becomes 'effective, but the price cannot be characterised as a benefit under the decree; it is only in the nature of compen- sation to the vendee for the loss of his property. Tinkler v, Hilder, (1849) 4 Ex. 187: 154 E.R. n76, Verschu- res Creameries v. Hull and Netherlands Steamship Co., [1921] 2 K.B. 608, Lissenden v. C. A. V. Bosch Ltd., [1940] A.C, 412, V enkatarayudu v. Chinna, A'.. I. R. 1930 Mad. 268 and Sundra Das v, Dhanpat Rai, 1')07 P.R. No. 16, considered, Per Sarkar, J.-The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed. By withdraw- ing the money he adopted its correctness and cannot now say it is incorrect, The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot, therefore, be allowed to proceed with the appeal, Case law reviewed. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 270 of 1955. Appeal by special leave from the judgment and decree dated March 24, 195!, of the Judicial Commis- sioner's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commis- sioner's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952. L. K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N. C. Chatterjee, and D. N. Mukherjee, for respon- dent No. 1. 19)ll. March 16. The Judgment of P. B. Gajendra- gadkar, ·K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ.,
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