The Doctrine of Approbate and Reprobate in Indian Jurisprudence

The Doctrine of Approbate and Reprobate in Indian Jurisprudence: An Analysis of "Blowing Hot and Cold"

Introduction

The administration of justice is founded upon principles of fairness, consistency, and finality. Among the equitable doctrines that safeguard these tenets is the principle of approbate and reprobate, colloquially expressed as not being permitted to "blow hot and cold." This doctrine, rooted in Scots law and nurtured in English equity, mandates that a party cannot be allowed to accept and reject the same instrument, transaction, or legal position.[14] It is a principle of universal application that prevents a litigant from assuming inconsistent and contradictory stances to the detriment of their opponent and the integrity of the judicial process. As Sir Asutosh Mookerjee observed in Dwijendra Narain Roy v. Joges Chandra De, "It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent."[25]

This article undertakes a comprehensive analysis of the doctrine of approbate and reprobate within the framework of Indian law. Drawing upon a wide array of judgments from the Supreme Court of India and various High Courts, it examines the conceptual foundations of the doctrine, its essential ingredients, and its application across diverse legal fields, including contract, property, and procedural law. The analysis will demonstrate that while the doctrine is a powerful tool for ensuring judicial propriety, its application is not mechanical and is circumscribed by the core requirements of election and the acceptance of a benefit.

Conceptual Foundations and Origins

The doctrine of approbate and reprobate is a species of estoppel, often equated with the doctrine of election.[12] Its fundamental premise, as articulated by the Supreme Court in MUMTAZ YARUD DOWLA WAKF v. M/S BADAM BALAKRISHNA HOTEL PVT. LTD., is that "no party can be allowed to accept and reject the same thing."[14] The doctrine is underpinned by considerations of equity and fair play, precluding a party who has derived an advantage from one part of an instrument or transaction from subsequently challenging another part of it.

The English courts have defined its contours with precision. In Banque des Marehands de Moscou v. Kindersley, Evershed M.R. clarified that for the phrases "approbating and reprobating" or "blowing hot and cold" to constitute a valid legal defence, they must be precisely defined. He identified two essential elements:

  1. The party in question is to be treated as having made an election from which they cannot resile.
  2. The party will not be regarded as having so elected unless they have taken a benefit under or arising out of the course of conduct which they first pursued and with which their present action is inconsistent.[12]

This formulation has been consistently adopted by Indian courts.[11], [13] The doctrine, therefore, operates to prevent a litigant from enjoying the fruits of a transaction or order and then turning around to question its validity. It applies not only to successive stages of the same suit but also to subsequent suits that grow out of the judgment in the first.[21], [23]

Judicial Application Across Different Legal Contexts

The Indian judiciary has invoked the doctrine of approbate and reprobate across a spectrum of legal disputes, reinforcing its status as a fundamental principle of justice.

In Contractual and Commercial Disputes

In the realm of contract law, the doctrine ensures the sanctity of agreements and settlements. The Supreme Court, in Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, held that a party that accepts a settlement amount in full and final satisfaction of a claim cannot subsequently seek to invoke an arbitration clause to re-agitate the same dispute.[2] By accepting the payment, the party had approbated the settlement and was thereby precluded from reprobating it. Similarly, in Rajasthan State Industrial Development And Investment Corporation v. Diamond & Gem Development Corporation Limited, a lessee who accepted land on an "as-is-where-is" basis was estopped from later demanding that the lessor provide an access road. Having accepted the benefit of the lease on its explicit terms, the lessee could not reprobate those terms.[4] The Court in New Bihar Biri Leaves Co. v. State Of Bihar invoked the maxim qui approbat non reprobat to hold that purchasers who voluntarily entered into a contract with the state and worked under it could not later challenge its terms as unreasonable.[6]

In Procedural Law and Litigation Strategy

The doctrine is frequently applied to curb inconsistent and opportunistic litigation strategies. A classic illustration is R.N Gosain v. Yashpal Dhir, where a tenant, having given an undertaking to the High Court to vacate the premises in exchange for a grace period, was barred from challenging the eviction order via a Special Leave Petition. The Supreme Court held that by giving the undertaking, the tenant had elected to abide by the order and could not simultaneously challenge it.[3]

In Joint Action Committee Of Air Line Pilots' Association Of India (Alpai) v. Director General Of Civil Aviation, the appellants were prevented from challenging a regulatory circular (CAR 2007) while also seeking to benefit from the revival of a previous circular (AIC 1992) which they had earlier challenged. The Court found this to be a clear case of taking contradictory legal stances.[1] This principle was also emphatically applied in Rajneesh Kumar Singhal v. The State (NCT of Delhi), where a party that had successfully argued before a Division Bench that a Magistrate had the power to order further investigation was not permitted to argue the contrary in a subsequent petition challenging the Magistrate's order. The Delhi High Court held that "a party cannot normally be allowed to approbate and reprobate."[24]

In Property and Tenancy Law

The doctrine is equally relevant in property disputes. In Karam Kapahi And Others v. Lal Chand Public Charitable Trust And Another, a tenant who had admitted the landlord-tenant relationship to seek relief from forfeiture under Section 114 of the Transfer of Property Act, 1882, was not allowed to deny the said relationship in the main suit. The Supreme Court held that this amounted to an impermissible approbate and reprobate.[10] The Privy Council in King v. Paulson observed that a landlord who accepts rent with knowledge of a breach of covenant makes an "irrevocable election" to treat the lease as subsisting and cannot simultaneously seek to cancel it for that breach. This prevents the landlord from "at the same time to blow hot and cold."[22]

The Essential Ingredients: Benefit and Election

The judicial pronouncements consistently emphasize that the doctrine is not triggered by any mere inconsistency but requires the presence of two key ingredients: a choice (election) and the derivation of a benefit.

The Element of 'Benefit'

A party must have received a tangible advantage or benefit from their initial position. As held in Saregama India Limited v. State Of West Bengal, a party will not be deemed to have elected unless "he has taken a benefit under or arising out of the course of conduct which he has first pursued."[11] A clear example is where a party accepts costs awarded by a court as a condition for an order, such as restoring a suit or allowing an amendment. In such cases, the party, having accepted the benefit (costs), is precluded from appealing the order itself. The act of receiving the costs is tantamount to adopting the order in its entirety.[16], [19] Conversely, where no advantage accrues to the party, the doctrine does not apply. In VED PARKASH v. KANGRA CO-OPERATIVE BANK LTD, the Himachal Pradesh High Court found that a party's change in stance did not confer any real advantage and thus the doctrine could not be invoked, noting that legal maxims "are not be mechanically applied."[15]

The Element of 'Election'

The doctrine is fundamentally about choice. A party must have had two inconsistent courses of conduct available and must have consciously chosen one over the other. As stated in Halsbury's Laws of England and cited by the Madras High Court in Senniappa Gounder v. V.K Venkataraman, the principle expresses 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."[13] This election, once made by accepting a benefit, becomes irrevocable. The Supreme Court in Mumbai International Airport Private Limited v. Golden Chariot Airport And Another reiterated this principle, citing Maitland: "That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."[20]

Limitations and Nuances

Despite its broad application, the doctrine of approbate and reprobate is not without its limits. The Supreme Court in Nagubai Ammal & Others v. B. Shama Rao & Others clarified that the maxim's operation "must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto."[7] It does not necessarily prevent a party from taking a different stance in a separate and distinct litigation, unless the principles of estoppel or res judicata are attracted. Furthermore, a mere refinement of a legal position is not considered reprobation. In Kuppanna Gounder v. Peruma Gounder, the court distinguished a party's attempt to argue for a higher valuation of a suit as "not to blow hot and cold but to blow hotter," thereby falling outside the doctrine's prohibition.[12] This highlights that the inconsistency must be substantive and relate to the fundamental basis of the claim or transaction.

Conclusion

The doctrine of approbate and reprobate, or "blowing hot and cold," is a cornerstone of equitable jurisprudence in India. It serves as a vital check on litigants who might otherwise abuse the judicial process by adopting contradictory and self-serving positions. As the analyzed precedents demonstrate, Indian courts have consistently applied this doctrine to foster honesty, consistency, and fairness in legal proceedings. By insisting on the essential elements of a conscious election and the acceptance of a benefit, the judiciary ensures that the principle is applied not as a rigid technicality but as a flexible instrument of justice. It reinforces the wholesome principle that a litigant who accepts the advantage of an order, instrument, or transaction must also accept its corresponding obligations and cannot be permitted to selectively embrace its benefits while repudiating its burdens.

References

  1. Joint Action Committee Of Air Line Pilots' Association Of India (Alpai) And Others v. Director General Of Civil Aviation And Others (2011 SCC 5 435, Supreme Court Of India, 2011)
  2. Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited . (2011 SCC 10 420, Supreme Court Of India, 2011)
  3. R.N Gosain v. Yashpal Dhir . (1992 SCC 4 683, Supreme Court Of India, 1992)
  4. Rajasthan State Industrial Development And Investment Corporation And Another v. Diamond & Gem Development Corporation Limited And Another (2013 SCC 5 470, Supreme Court Of India, 2013)
  5. Pradeep Oil Corporation v. Municipal Corporation Of Delhi And Another (2011 SCC 5 270, Supreme Court Of India, 2011)
  6. New Bihar Biri Leaves Co. And Others v. State Of Bihar And Others (1981 SCC 1 537, Supreme Court Of India, 1981)
  7. Nagubai Ammal & Others v. B. Shama Rao & Others (1956 AIR SC 0 593, Supreme Court Of India, 1956)
  8. Ramesh Chandra Sankla And Others v. Vikram Cement And Others (2008 SCC 14 58, Supreme Court Of India, 2008)
  9. State Of Punjab v. Davinder Pal Singh Bhullar & Ors. Etc. S (2011 SCC 14 770, Supreme Court Of India, 2011)
  10. Karam Kapahi And Others v. Lal Chand Public Charitable Trust And Another (2010 SCC 4 753, Supreme Court Of India, 2010)
  11. Saregama India Limited. v. State Of West Bengal. (Calcutta High Court, 2014)
  12. Kuppanna Gounder And Others v. Peruma Gounder And Others (Madras High Court, 1960)
  13. Senniappa Gounder v. V.K Venkataraman And Others (Madras High Court, 1981)
  14. MUMTAZ YARUD DOWLA WAKF v. M/S BADAM BALAKRISHNA HOTEL PVT. LTD. (Supreme Court Of India, 2023)
  15. VED PARKASH v. KANGRA CO-OPERATIVE BANK LTD AND OTHERS (Himachal Pradesh High Court, 2018)
  16. Gadde Venkatarayudu v. Anumolu Chinna Rama Krishnayya (Madras High Court, 1929)
  17. State Of Kerala v. K.K. Mathai (Kerala High Court, 2017)
  18. Irfana Ahmad v. State Of J&K And Another (Jammu and Kashmir High Court, 2018)
  19. Korvati Subbamma Petitioner () v. Pinnapureddi Subbaiah (Petitioner). (Andhra Pradesh High Court, 1957)
  20. Mumbai International Airport Private Limited v. Golden Chariot Airport And Another (2010 SCC 10 422, Supreme Court Of India, 2010)
  21. Hemanta Kumari Devi v. Prasanna Kumar Datta (1928 SCC ONLINE CAL 199, Calcutta High Court, 1928)
  22. King v. Paulson And Others (1920 AIR PC 190, Privy Council, 1920)
  23. Udraj Singh v. Ram Bahal Singh (1946 SCC ONLINE ALL 14, Allahabad High Court, 1946)
  24. Rajneesh Kumar Singhal v. The State (National Capital Territory Of Delhi) (2000 SCC ONLINE DEL 911, Delhi High Court, 2000)
  25. Telefonaktiebolaget Lm Ericsson (Publ) Plaintiff v. Intex Technologies (India) Limited Defendant (Delhi High Court, 2015)