LexC. BEEPATHUMMA & ORS. versus V.S. KADAMBOLITHAYA & ORS.
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1963 Burn and C<mpay Ltd. v. Its Workmen Das Gupta J. 1963 December 6 836 SUPREME COURT REPORTS [1964] The award of bonus at 5! months' wages appears to be reasonable and proper on this figure of the available surplus. The employers' plea for reduction of the bonus and the workmen's claim for increase of it appear to us equally unjustified. All the appeals are accordingly dismissed. There will be no order as to costs. Appeals dismissed. C. BEEPATHUMMA & ORS. v. V.S. KADAMBOLITHAYA & ORS. (K; SUBBA RAO, M. HIDAYATULLAH AND J.C. SHAH, JJ.) Mortgage-Suit for redemption-Mortgagee enjoying benefits under a deed-If must also accept the obligations thereunder- Doctrine of election. The properties in plaint Schedules A, B & C were mortgaged to one Kunjamu and others. By a partition in the Mortgagees' family Kunjamu go !th shares of the interests in these properties. Subsequent to the death of Kunjamu the mortgagors and mortga- gees entered into an agreement evidenced by Ex. P-2 and P-2(a) in which the original mortgage deed Exp. wcs referred but it released certain properties shown in C Schedule. The mortgagors agreed that the mortgagees would enjoy the remaining properties shown in A and B Schedules for a period of forty years and it was agreed that on the expiry of this period the mortgagors would have an option to redeem the mortgage land on payment of the amount due. At the time of the execution of Exp. 2 and P-2(a) Kunj Pakki the grandfather of the third respondent in this appeal was a minor (son of Kunjamu). His mother signed for herself but did not sign Ex.P-2 and P-2(a) on his behalf and no legal guardian signed it either. The first respondent purchased Schedule A &· B properties and filed a suit for redemption. He claimed that since under Ex. P-2 the mortgagors were entitled to remain in possession for 40 years from 1862 the right of redemption accrued in 1902 and the suit filed in 1944 was within sixty years as contemplated by Art: 148 of the Limitation Act. The defence was that so far as I -.. r - • - 5 S.C.R. SUPREME COURT REPORTS 837 the share of Kunjamu was concerned Kunhi Pakki who inherited 1963 it was not bound by Ex. P-2(a) since he was a minor and he was not a signatory to it nor was it signed by any legally constituted C. Beepathumma guardian on his behalf. Therefore it was contended the Kunha- & Ors mmu's share inherited by Kunhi Pakki and subsequently by third · respondent was hit by limitation and was not liable to be v. redeemed. V. S. The trial court held that since Kunhi Pakki had taken benefit Kadambolithaya under Exp. 2 and P-2(a) his successors could not avoid them and & Ors. therefore the suit was not barred by limitation and the properties were liable to be redeemed. The High Court upheld the decision of the lower court on the main question. The present appeal was filed by certificate granted by the High Court. Held: (i) Kunhi Pakki was not directly bound by Ex. P-2 and P-2(a) since he was a minor and no legal guardian signed these documents on his behalf. Ex. P-2(a) cannot be used to show either an acknowledgment by him or an extension of the terms of the original usufructuary mortgage. (ii) The evidence in the present case shows that Kunhi Pakki accepted benefit under Ex. P-2 and therefore neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on· the lapse of 60 years from 1842. The doctrine of election was properly applied in respect of his I/4th share now in possession of the present appellants. That doctrine is that a person who accepts a benefit under a deed or will or other instrument must adopt the who!e contents of the instrument, must conform to all its provi- sions and renounce all rights that are inconsistent with it, in other words a person cannot approbate and reprobate the same transaction. CIVIL APPEhLATE JURISDICTION : Civil Appeal No. 446 of 1960. "' A)Jpeal from the judgment and decree dated November 3, 1955, of the Madras High Court in A.S. No. 138 of 1957. S.T. Desai, M.S. Narasimhan and M.S.K. Sastri, for the appellants. C.B. Agarwala, K. Jayararnand and R. Ganapathy Tyer, for the respondents. December 6, 1963. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal by cer- Hidayatullah J. tificate granted by the High Court of Madras against its common judgment and
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