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Haridas Mafatlal Gagalbhai Vs. Vijayalakshmi Navinchandra Mafatlal Gagalbhai and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberSuit No. 1072 of 1951
Reported inAIR1956Bom721
ActsCode of Civil Procedure (CPC), 1908 - Order 14, Rule 2 - Order 15, Rule 3; Evidence Act, 1872 - Sections 115; Workmen's Compensation Act
AppellantHaridas Mafatlal Gagalbhai
RespondentVijayalakshmi Navinchandra Mafatlal Gagalbhai and ors.
Appellant AdvocatePurshottam, Dave and Pradhan, Advs.
Respondent AdvocateAttorney General, Manekshaw and Bhagwati, Advs.
civil - partition - order 14 rule 2 and order 15 rule 3 of code of civil procedure, 1908 - appellant filed suit for partition - earlier appellant-mother compromised present suit during minority of appellant - after attaining majority suit filed by appellant for partition - respondent contended since comprise accepted by appellant-mother regarding partition appellant not entitle to proceed partition suit even attaining majority - plaintiff earlier elected to set benefit under compromise - suit dismissed. - - purshottam referred me in resisting the trial of this issue as a preliminary issue to order 15, rule 3. in my opinion that rule only says that if the issues have been framed by the court as provided hereinbefore and if the court is satisfied that no further argument or evidence.....1. this suit was filed on behalf of the plaintiff by his next friend during the minority of the plaintiff on 15-9-1951 for a partition of the estate of mufatlal gagalbhai on the ground that the plaintiff was the illegitimate son of the said mafatlal by defendant 7 sushilabai. it is alleged that mafatlal was a shudra by caste and was a kadwa patidar and that the mother the plaintiff, defendant 7 is also a shudra. the deceased mafatlal died as far back as is said that the deceased was introduced to sushilabai sometime in 1925 who was at that time a widow, and that from the year 1927 for a continuous period of 17 years sushilabai was in mafat-fal's continuous and exclusive keeping as a permanent concubine. defendant 8 is a daughter of the said mafatlal by sushilabai. it is.....

1. This suit was filed on behalf of the plaintiff by his next friend during the minority of the plaintiff on 15-9-1951 for a partition of the estate of Mufatlal Gagalbhai on the ground that the plaintiff was the illegitimate son of the said Mafatlal by defendant 7 Sushilabai. It is alleged that Mafatlal was a Shudra by caste and was a kadwa Patidar and that the mother the plaintiff, defendant 7 is also a Shudra. The deceased Mafatlal died as far back as 19-7-1944.

It is said that the deceased was introduced to Sushilabai sometime in 1925 who was at that time a widow, and that from the year 1927 for a continuous period of 17 years Sushilabai was in Mafat-fal's continuous and exclusive keeping as a permanent concubine. Defendant 8 is a daughter of the said Mafatlal by Sushilabai. It is alleged further that the plaintiff was born to Sushilabai in 1931 and the daughter was born in 1939.

It is contended that the plaintiff as the illegitimate son of the deceased is entitled to a share out of the estate of the deceased namely half the share which he would have received had he been a legitimate son of the deceased and therefore he is entitled to a partition of the estate on that footing.

2. In para 7 of the plaint it is stated that defendant 7, Sushilabai, made certain claims against the estate of Mafatlal in the year 1944 claiming maintenance as the Avarudha Stree of Mafatlal and also made a claim to a share in the estate on behalf of the plaintiff who was at that time a minor. The plaintiff avers that such claims having been raised through certain attorneys a compromise was arrived at by his mother Sushilabai and the two claims were treated as parts of one transaction and Sushilabai out of anxiety to secure her own maintenance in the form of a lump sum payment sacrificed the interests of the plaintiff by accepting a sum of Rs. 4,10,000/- on behalf of the plaintiff and a sum of Rs. 4,00,000/- as lump sum maintenance for herself.

It is alleged that in pursuance of that compromise Sushilabai presented a partition on 31-1-1945 in the High Court and obtained a Judge's order and sanction to the said compromise on 2-2-1945 and thereupon on 23-3-1945 a release was executed by defendant 7 the mother in favour of Navinchandra the son and the other heirs of Mafatlal.

3. It is stated that the sum of Rs. 4,10,000/- paid and accepted by Sushilabai on behalf of the plaintiff was entirely out of proportion to the estate left by Mafatlal which according to the estate left by Mafatlal which according to the information of the plaintiff was worth about thirty crores of rupees.

It is alleged that the said petition was made and the said order of the Court was obtained andthe release executed as a resultof collusion betweendefendant 7 Sushilabai and the original first defendant and the other parties interested in the estate, that the petition contained a number of statements which are on the face of them incorrect and that the sanction of the Court on the said partition was obtained on incorrect and misleading statements on material facts.

4. The material facts are set out as follows: It was falsely and wrongly stated by Sushilabai that she had difficulty to find evidence to prove that the plaintiff was the son of the deceased. That the question whether Mafatlal was a Shudra was a question that had to be litigated upto the Privy Council incurring enormous costs.

That the original first defendant had refused to state the extent of the estate and it was wrong, to state in the petition that Sushilabai had no interest directly or indirectly adverse to that of the minor. It is contended that her interest was definitely adverse to the- interest of the minor inasmuch as she was threatened- that she would not be given any maintenance and would not be entitled, to any maintenance unless she compromised the claim of the plaintiff and that she was induced to accept this figure of Rs. 4,10,000/- by the fact that she was allowed Rs. 4,00,000/- in lump sum for her maintenance.

5. It is contended that there was ample evidence and convincing evidence of an unimpeachable character that Sushilabai was in the continuous and exclusive keeping of the deceased since the year 1927 and that the plaintiff is the son of the deceased and that all these statements were supported by proper proof that was available at that time.

6. Therefore it is contended that taking advantage of their overwhelming resources and taking advantage of the illiteracy of defendant 7 she was induced to enter into this compromise of the claims of the plaintiff and herself. That evidently there was collusion between defendant 7 Sushilabai and the original first defendant and that the sanction of the Court for the said compromise was obtained by fraud and collusion.

7. In these circumstances it is contended in para 17 of the plaint that the release obtained by the original first defendant from Sushilabai on -behalf of the plaintiff is void and ineffective and not binding on the plaintiff. This averment is an important averment, because in prayer (a) it is asked that the compromise be declared to be void and in prayer (b) it is asked that the release dated 23-3-1946 be declared void and not binding on the plaintiff and thereafter there is the prayer that on, this document of release being set aside and handed over to the plaintiff for cancellation, the estate of Mafatlal beascertained and the plaintiff should be paid his shareas an (illegitimate son on a proper partition of the estate of Mafatlal.

8. In the written statement dated 27-2-1952 the defendants namely the original first defendant and the other parties supporting him deny all the material averments set out in the plaint. Mainly, they deny that Sushilabai was the permanent concubine of the late Mafatlal and they deny that shewas in the exclusive keeping of Mafatlal ever since 1927.

It is alleged that the plaintiff claims to be born in 1929, but according to the defendants from the year 1940 the deceased used to visit Sushilabai at regular intervals and for sometime prior thereto between 1938 and 1940 the connection between Sushilabai 'and the deceased Mafatlal was casual. It is denied that the plaintiff and defendant 8 were born in 1929 and 1937 and it is not admitted that Sushilabai is the mother of defendant 8 or of the plaintiff. It is denied further that Mafatlal Gagalbhai was a Shudra by caste.

9. As regards the compromise it is stated in the written statement that it is not true that the claims of the plaintiff and Sushilabai were treated as one transaction and it is denied that for the purpose of securing her own maintenance Sushilabai sacrificed the interests of the plaintiff.

Denying that the plaintiff is the son of defendant 7 and that the deceased was a Shudra it is stated that the plaintiff is not entitled to any share whatsoever in the estate of the deceased and that the sum of Rs. 4,10,000/- was paid by the original first defendant in full satisfaction of the alleged claim against the estate. It is said that the original first defendant did not prevail upon or induce Sushilabai to make any petition to the High Court, that the petition was voluntary and was made after securing independent legal advice by Sushilabai.

It is denied that the sum of Rs. 4,10,000/- was out of all proportion to the estate left by Mafatlal and it is further denied that the original first defendant at any time informed defendant 7 Sushilabai that her claim for maintenance would not be considered unless she compromised the claim of the plaintiff. In fact at all material times the original first defendant and the other heirs disputed the alleged claim of the plaintiff.

10. It appears that the petition was presented during the minority of the plaintiff by his mother on 25-1-1945 with, an affidavit in support of it and that petition is Ex.-1. In the petition in paras II and 12 Sushilabai states that she found it difficult to get any other evidence besides her own word as regards the paternity of the minor as the Doctor who attended on the petitioner at the time of her confinement during the birth of the minor died sometime in 1944 and that the question whether the deceased was a Shudra would have to be litigated upto the Privy Council before the claim made on behalf of the minor could be finally established.

It is alleged in para 15 that as regards the minor the claim made on his behalf is denied on the ground that he is the son of the deceased. In para 16 of the petition she states that the fact that the deceased was a Shudra had to be established even if the parentage of the minor Could be proved.

On this she approached the Court with an affidavit in support asking for the appointment of herself as the guardian of the person and property of the minor and for sanction to accept the sum of Rs. 4,10,000/- in full settlement of all claim, right, title and interest of any kind whatsoever of the said minor plaintiff Haridas and asking for sanction to accept the amount and to invest it on behalf of the minor by depositing it with the Accountant-General and that interest accruing thereon be paid to her from time to time for the maintenance of the minor.

This petition was accepted and order made thereon by Bhagwati J. on 2-2-1945 sanctioning the compromise and appointing the another as tile guardian of the plaintiff. Following on the compromise a release was executed by her on 23-3-1945 which is Ex. No. 3, which recites that at the intervention of common friends the release as representing the estate of the said deceased Maiatlal Gagalbhai has agreed to compromise and settle the claims of the releaser for a sum of Rs. 4,10,000/- subject to the sanction of the High Court.

11. It appears that from thence-onward amounts were paid by the Accountant-General out of the income of this amount of Sushilabai for the maintenance of the minor plaintiff and the minor plaintiff was educated at Mussorie at a leading institution from the income of this amount in the hands of the Accountant-General.

12. On 15-9-1951 one Kesliav Shamrao Tal-pade Bled this suit as the next friend of the plaintiff evidently on the ground that Sushilabai's interests were in conflict with the interests of the minor and he obtained an order and sanction of the Court to file this suit. As there was a guardian appointed of the minor the minor attained majority at the age of 21 on 25-4-1952.

Having attained majority in April 1952 the plaintiff made an application on 13-6-1952 which is Ex. No. 4 and applied to this Court stating that he had attained majority and was desirous of withdrawing the securities and cash deposited with the Accountant-General and as the Accountant-General had refused to pay any further sums to Sushilabai in view of the plaintiff having attained majority he should be handed over the securities and the cash.

This was supported by his mother by her affidavit dated 18-6-1952 and on 20-6-1952 an order was made by the Court for payment to the plaintiff and on 2-7-1952 the amount was withdrawn by the plaintiff. On 13-11-1952 an application was made under Order 32, Rule 12 for the discharge of the next friend by the plaintiff and for a further order giving him liberty to continue the suit and on 26-11-1952 an order was made allowing the plaintiff to continue the suit.

13. In the above circumstances, the defendants applied for a certain amendment to their written, statement which was allowed and that amendment forms part of paras 3A and 3B of the written statement. In para 3A the defendants set out how this amount of Rs. 4,10,000/- was paid into the Accountant-General's office in pursuance of the petition and in full settlement of the plaintiff's claim and how the plaintiff attained majority on 23-4-1952 and applied to the High Court for withdrawing this amount which application was sanctioned and the amount withdrawn.

It is stated that the application was made by the plaintiff through the same set of solicitors who represented the plaintiff in the suit and who represented him during his minority. In para 3B it is alleged that when the plaintiff applied and withdrew the moneys he adopted or ratified the compromise of his claim against the estate effected by his mother and also the deed of release dated 23-3-1945 with full knowledge of his rights and of all material facts connected with the compromise and connected with the said deed of release and the plaintiff being en-titled at that stage to elect whether to proceed with the suit or not he had elected to accept the compromise and ratify it and that therefore in these circumstances the plaintiff was precluded from challenging the compromise and the deed of release and the plain-tiff's suit should be dismissed on that ground.

14. Numerous issues were raised on these pleadings on the merits of the averments and denials in the plaint and the written statement, but the first issue raised is as follows :

'Whether by reason of the facts and submissions set out in paras 3A and 3B of the written statement of the original defendants 1 to 8 the plaintiff is precluded from challenging the order dated 2-2-1945, the compromise effected under the said Order and the deed of release dated 23-3-1945.'

15. When these issues were raised it was contended on behalf of the defendants (by defendants I mean the contesting defendants), that the first issue should be tried as a preliminary issue under Order 14, Rule 2, Civil P. C. Order 14, Rule 2 is quite clear, namely, that where issues both of law and of fact arise and the Court is of opinion that the case or any part thereof may he disposed of on the issues of law only, it shall try those issues first and postpone the settlement of the issues of fact until after the issues of law have been determined.

It was contended on behalf of the defendants that tin's rule is mandatory and that is what is set out in the commentary of Sir Dinshaw Mulla on the Civil Procedure Code. Mr. Purshottam contended that the rule was not mandatory although the word 'shall' is used in the rule. Mr. Purshottam referred me in resisting the trial of this issue as a preliminary issue to Order 15, Rule 3.

In my opinion that rule only says that If the issues have been framed by the Court as provided hereinbefore and if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues. He contended that injustice would be done to his client if all the issues are not heard.

I am of the opinion that Order 15, Rule 3 only applies where the practice of-certain Courts is to fix a day for the settlement of issues and then if Issues are settled the Court may proceed to hear certain of the issues forthwith. In my opinion the application on behalf of the defendants clearly falls within Order 14, Rule 2. This is in accordance with the ruling in --'Sowkabai v. Tukojirao Holkar', reported in 34 Bom LR 6: AIR 1932 Bom 128. The head note says that Order 14, Civil P. C, gives no power to the Court to frame a preliminary issue of fact, but where, however, the Judge has framed all issues which 'properly arise in a case, he may select one or more of those issues to be tried first and independently, where the evidence on such issue or issue can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary.

In these circumstances it was contended on behalf of the defendants that on the documents produced there is a clear case for trial of this issue as a Preliminary issue. Mr. Purshottam, when I indicated that I was trying this issue as a preliminaryissue, applied that he be allowed to lead evidence limited to this issue and I recorded the evidence of the plaintiff Haridas as well as the evidence 'of Keshav Shamrao Talpade who was the next friendwhen the suit was filed.

16. It was contended on behalf of the defendants that where a party knowing that two courses are open to him voluntarily takes up one, he thereby elects which of the two remedies or rights he would prefer to have and in this case the plaintiff when he came of age was clearly to his own knowledge faced with the position, namely, to accept the moneys under the compromise and accept the release or to challenge the compromise and the release as set out in the plaint and that on the facts of this case he has chosen to accept the position under the compromise and that he should not ho allowed to take up the position so as to enable him to affirm the compromise and get the benefit under it and thereafter re-probate it by being allowed to proceed with the suit.

It is clear that he asks in the plaint that the order made under the petition & the release be set aside and those are prayers (a) and (b) of the plaint, That having knowledge of the existence of the suit & having knowledge that he in the suit was challenging the compromise he accepted the monies underthe compromise, applied to the Court to be allowed to withdraw the moneys and withdrew the moneys and having done so, he should not be allowed to approbate and reprobate by thereafter proceeding with the suit.

The argument is based on the principle that a partly having voluntarily elected to accept one position should by his conduct he precluded from challenging that position once he is aware of the facts and of his rights under both the positions. There is no doubt that when he attained majority he was aware of the pending suit. The documents referred to above clearly show that anybody would be aware of the fact that he had been maintained out of the moneys deposited with the Accountant General for a long number of years, lie would be aware that this was the amount that had come to his share from Mafatlal's estate. He says in his evidence that he had merely told his solicitors that he had attained majority. He however stated that when he gave this information he did not know of the circumstances under which these moneys had been deposited in his name.

But he did admit in his examination in chief that he had at that time looked over the plaint and the proceedings in the present suit. He however says that when he read over the plaint and the proceedings he had no discussion either with his mother or with Talpade or with his solicitors and had taken no advice nor had he looked into the proceedings of 1945. He however stated that he was aware that Rs. 4,10,000/- had been deposited with the Accountant-General and in his cross-examination he said that he was aware that when he attained majority he would be entitled to those moneys and that he was further aware that the moneys were deposited from Mafatlal's estate. He returned to Bombay from Mussori'e in 1931 December and at that time he was aware of the suit which was pending and he had been duly made aware of that by his solicitors and that he did go from time to time to Wadia Ghandy and Co.', in connection with his suit. He says thathe was at that time aware of the fact that in the suit he was challenging the compromise under which the deposit was made and that he did have discussions with his solicitors in connection with the suit, but that he never had any conversation whatsoever with his mother in this connection although he lived with his mother. He said in cross-examination that he came to know about the terms of the order under which the deposit was made soon after he became a major in April 1952. He spoke to his solicitors in connection with the order and also discussed the suit matters with his solicitors after attaining majority and after April 1952 he alone gave instructions in connection with the suit. He says this which is very significant, under cross-examination.

.'I did know that in the suit I was challenging the compromise under which this amount of Rs. 4,10,000/- had been deposited in my name'' and his answer that he did not remember whether he asked the solicitors what that petition was about is to say the least naive, in these circumstances, it is clear on the documents in connection with the deposit and in the face of this evidence that at the time when he withdrew the moneys from the Accountant-Gene-ral through the Court he had knowledge that these moneys were deposited as a result of the compromise and he fully well knew that in the suit he was challenging that compromise.

17. On these facts the question is whether the plaintiff is now precluded having taken up this position from challenging the compromise and the release which is the main prayer in the suit, because, unless and until the compromise and the release are set aside as asked for by him, there could he no question of his proceeding to ask for a partition of the estate of Mafatlal.

18. It is contended on behalf of the defendants that it is clear on these facts that the plaintiff has elected to accept the compromise and therefore he is not entitled to proceed with this suit. In support of this position several decisions, both English and Indian, were cited before me.

The first is the decision in -- 'Dexters Ltd. v. Hill Crest Oil Co., Ltd.', reported in (1926) 1 KB 348. In that case there was an arbitration concerning a dispute between the parties to a contract of sale and the umpire stated a special case in which he made three different awards, leaving the Court to decide which of the three awards was the right one. The Judge in the King's Bench Division decided that the first award was right and thereupon the buyers demanded and obtained payment of the amount of that award and gave a receipt therefor.

Having done so, they appealed from the decision of the Judge and contended that the second award was right. It was held that having demanded and accepted payment under the first award, the appellants were precluded from contending in appeal that it was wrong. Warrington L. J. at page 358 said that the object of that appeal was to induce the Court to decide in favour of the second alternative award, and if the appeal were to succeed the result would be that the second of the alternative awards would be substituted contrary to the finding of the learned Judge for the first award.

The learned Law Lord after setting out the letter of acceptance stated that the writer of the letter acted on the assumption that the first of thealternative awards was right and on that assumption the other party having paid the money the appellant was debarred from saying that the third alternative is the one to be adopted'.

The preliminary objection was upheld. Scrutton L. J. at page, 358 stated that the position taken by the appellant was as if he was saying that he approbated the first award and after the payment was made he came forward to say that he would reprobate that award and substitute another award for it. The learned Law Lord observed as follows ;

'It has often been stated as the law that you cannot approbate and reprobate the same act; you cannot take advantage of a document or a right under it and at the same time say it is not a document which binds you. For instance you cannot take a benefit under a will and at the same time say it is invalid....... So, in my opinion, you cannot takethe benefit of a judgment as being good and then appeal against it as being bad....... I think theappellants who have acted on the award by taking money under it have debarred themselves from appealing against it and saying it was wrong.'

The next case relied upon is the case of -- 'Rung-ama v. Atchama', reported in 4 Moo Ind App 1 (C), the relevant passage being at page 103 where the observation relied upon on behalf of the defendants is as follows :

'Applying, then, to this case, a principle not peculiar to English law, but common to all law, which is based on the rules of justice, namely the principle, that a party shall not, at the same time, affirm and disaffirm the same transaction, affirm it as far as it is for his benefit, and disaffirm it as far as it is to his prejudice.''

This proposition cannot be disputed and was not disputed but I shall hereafter refer to this case again when referring to the arguments presented by Mr. Purshottam who attempted to rely on it and deal with it in detail. The next case relied upon is the case of -- 'Banku Chandra v. Marium Begum', reported in AIR 1917 Cal 546, where it was observed by Chief Justice Sunderson that where a party has unconditionally accepted and taken advantage of an order which directs the payment to him of a certain sum of money by the other party, he is precluded from appealing against that order and that a party who has adopted such an order of the Court and acted under it cannot, after he has enjoyed a benefit under the order, contend that it is valid for one purpose and invalid for another.

The learned Chief Justice stated that the defendants had adopted the order for taxation and payment of the costs and having done so, they did take a benefit under it, because they having obtained the allocator, there was nothing to prevent them from issuing execution upon- that allocator and therefore they adopted the order of the Court and more than that, they acted under it and enjoyed the benefit of it. He stated that

'that being so, upon the principle laid down in the case cited, which is the principle which has been in existence for many years since the case of --Tinkler v. Hilder (1849) 4 Ex 187, the defendants cannot adopt the order for one purpose and then claim to have it set aside for another purpose. For this reason this appeal should be dismissed with costs.'

This reasoning is supported by a judgment of the Calcutta High Court reported in AIR 59 Cal 1464 namely -- 'Asiya Khatun v. Nut-jahan Khatun (F)'; where according to the learned Judges the election is a voluntary act and not forced upon a party by circumstances over which he had no control and notwithstanding his protest, and in such circumstances the party would be precluded from 'challenging that position and Mitter J. at p. 1468 (of ILR): (at p. 41 of AIR), observed as follows :

'Where a man has an election between several inconsistent courses of action he will be confined tor that which he first adopts; the election, if made with the knowledge of facts, is in itself binding. The election must be, however, a voluntary act not forced upon him by circumstances over which he had no control and notwithstanding his protest.'

Similar position sometimes arises in settlements made in favour of women under marriage settlements-where at a certain stage the question arises whether the party has elected or not and One of those cases was cited namely -- 'Greenhill v. North British and Mercantile Insurance Co.',' reported in (1893) 3 Ch D 474. This was a marriage settlement between a husband and wife. The memorandum in writing of this agreement was signed before the marriage by the husband alone and the settlement therein referred to was, after the marriage, also executed by the husband, but not by the wife.

But the husband and wife covenanted to assign to trustee all her property upon trust for the wife for life and after her death as she should appoint, and in default of appointment for the children ol the marriage, and if there should be none for the husband. By a subsequent deed acknowledged by the wife the policy was assigned and certain real estate of the wife was conveyed to the trustees of the settlement. The wife subsequently in exercise of her power under the settlement, mortguged the policy. It was held that the wife by acting on the contract and taking the benefit of it had elected to confirm the settlement and was bound in equity to perform, it fully. Stirling J. observed that

'it does not appear to be necessary for the purpose of making the election that the married woman should in such a case institute legal proceedings; it would seem to be enough that she should unequivocally claim the benefit under it.'

He then observed

'Then has she in fact elected? I cannot doubt that the acts which I have referred to, and which manifested a deliberate intention on her part to recognise the settlement, amounted to an election to confirm it. The effect of such a confirmation was to make the settlement as binding and as operative in equity as it would have been if she had been of full age at the time when she executed it.'

19. In the light of these decisions it was pressed upon me it is clear that this is a voluntary act on the part of the plaintiff with knowledge of the two positions facing him and in those circumstances he having acted in the manner he has, he is now precluded on a broad principle of estoppel from going behind the compromise and the release in this suit.

Because, he was aware of the two existing rights namely, one under the compromise and the other under the suit and on the facts of the case on the documents and in the face of his evidence there isno question that the plaintiff did have knowledge ofthe situation.

20. Mr. Purshottam on behalf of the plaintiff first of all referred me to Ex. B, namely the correspondence prior to the compromise which stated that tbe compromise was put through without prejudice to the rights and contentions of both parties. He Wanted to argue that, that amounted to saying that he would take the moneys and yet at a later date be entitled to contend that he was the illegitimate son of Mafatlal and claim one-sixth of the estate apart from the sum of Rs. 4,10,000/-.

The proposition has merely to be stated to carry its own refutation, but in any event the compromise was there and in my opinion the correspondence between Mulla and Mulla and Navinchandra prior to the compromise is not relevant, but even if relevant the release Ex. No. 3 is an answer to it. Mr. Pur-shottam also referred me to the correspondence between Wadia Ghandhy & Co., and Kanga and Co. (Ex. C, Collectively) which' in my opinion again has no bearing on the question whether at the time when the moneys were withdrawn the plaintiff had or had not elected.

21. It was contended by Mr. Purshottam that the act of election must be a conscious act with the full and complete knowledge of all the circumstancesunder which the compromise was effected. To my mind, that is not a sound contention as I shall showhereafter, but even if that contention were to be conceded, all the circumstances in which the compromise was attempted to be set aside are set out in detail in the plaintiff's own plaint and he admits that at that time when he made the application for withdrawal of the moneys, he had read the plaint and therefore would be aware of the situation.

The contention of Mr. Purshottam that the defendants must prove that the plaintiff had full knowledge and that he must be conscious of all the surrounding circumstances is answered by a judgment of the Court of Appeal in -- 'Kanlilal Jivabhai v. Wadilal Chunilal', Appeal No. 32 of 1952 (H), the judgment having been delivered on 20-8-1952. In that case an award was made and filed and moneys paid thereunder were accepted. It was contended when the award was challenged before me that the petitioner having obtained substantial benefits under the award and having benefited under the award it does not lie in his mouth to challenge the award.

That preliminary objection was upheld by me relying upon the leading case of -- 'Parrot v. Shellard', (1868) 16 WR 928 (1). An appeal was preferred and the judgment I am referring to states the same proposition, but there are observations which meet the argument advanced on behalf of the plaintiff that he must have full knowledge and be conscious of what he was doing before he could be debarred from prosecuting the suit. The learned Chief Justice observed as follows :

'What the learned author Russel says is that it will be a good answer to a Motion to set aside an Award if the opposing party can show that the party moving as acquiesced in the Award by knowingly accepting a benefit under it. The emphasis on ''knowingly' is in order to point out that the acceptance of the benefit under the Award should not be ignorance of the fact that the award has been made. If the party accepting the benefit wishes tochallenge the award as in this case, there cannot be the slightest doubt that the benefit was accepted knowingly by the party.'

The learned Chief Justice also referred to the caseof 'Parrot v. Shellard (I), and quoted Lord Romilly and described Lord Romilly's language as strong and emphatic when he said that

'In the meantime he had consulted his solicitor who advised him to do what nearly amounted to a fraud namely to take the money and dispute the amount afterwards'.

The further passage quoted is also relevant namely,

''He knew the nature of the award made by Mr. Drewilt but he took the cheque and got it cashed and received the amount of promissory note at maturity. He had then waited for 9 months and then filed his bill on the ground that he had reserved, his right by writing the words 'under protest' on the receipts. If sincere, he ought to have given back the money when he disputed the amount; he should not get advantage of the transaction and then dispute it.'

22. The point made by Mr. Purshottam is clearly met by a further observation of the learned Chief Justice which is as follows :

'In this case before us Mr. Desai says that all facts on which he challenged the award were not known to him at the time he accepted the cheque. Mr. Desai concedes that some of the facts were known to him. But before he filed this petition he never thought it advisable to return the cheque or the amount of the cheque which he had cashed and which he had ulilised. It is difficult to see how it would ever be open to a party solemnly to get up in the Court and challenge the award in respect of which he has obtained a substantial benefit and which he never thinks of returning to the other side.'

23. In the light of these observations the contention of Mr. Purshottam cannot be sustained. All that is necessary to my mind, is that the party should have sufficient information and knowledge to be able to recognise that he has two rights inconsistent with each other and knowing that if he chooses one of those two rights and enforces that right it necessarily is an act of election and necessarily precludes him from contending that the act adopted and ratified by him is invalid and that he should be allowed to change his position thereafter and say that the other remedy and right is the proper one.

24. For the purpose of contending that, this did not amount to election Mr. Purshottam relied upon certain decisions which I propose now to deal with. The first decision is the case of -- 'Lissenden v. Bosch Ltd.', reported in 1940 AC 412, where it was an appeal under the Workmen's Compensation! Act and it was hold that the mere fact that a workman who has obtained an award if compensation under the Workmen's Compensation Act has accepted weekly sums payable thereunder does not preclude an appeal by him on the ground that the compensation should have been of a larger sum than that awarded.

Mr. Purshottam relying on this seemed to argue that he comes within the principle of this case, because, having accepted Rs. 4,10,000/- he is now asking for a larger amount. That is not the correct position. Having accepted the benefit under the compromise he has now come really and virtuallyto displace that compromise an the ground of collusion and fraud and asks independently of that for a partition, of the estate of Mafatlal Gagalbhai.

In the decision relied upon, namely 'Lissenden's case (J)', it was argued that the workman having accepted the compensation awarded could not maintain an appeal against it on the ground that he was approbating and reprobating. Reviewing the cases at page 418 Viscount Maugham said that 'these cases mainly relate to alternative remedies in a Court of justice' and said that he was quite unable to see how this doctrine can be made to apply to the rights of a litigant precluding him from maintaining an appeal under the Workmen's Compensation Act andobserved as follows :

'Whether we are dealing with a judgment or an award by a country court-judge under the Workmen's Compensation Act, it is, I think, clear, first, that there is no one in a position of testator or donor,and secondly that the tribunal cannot be supposed to be intentionally putting the successful litigant to his election between the rights, since his right of appeal is his by statute and rule and docs not depend on the bounty of the judge. In truth a judgment or such an award as we ace now considering in no way resembles a will, an instrument inter parties, or a deed poll.'

Thereafter the learned Law Lord referred to the Rules made under the Workmen's Compensation Act and said that

'the Rules made it plain that an appellant may appeal from any part of the award and that his notice of motion must state whether the whole or part only of the award is complained of and that was the course taken by the appellant in the present case' and that 'the award was sought to be varied only so far as regards payment of the weekly sum was concerned.

On what ground of law or equity the launching of an appeal so limited ought to make it wrong for the appellant to receive from the respondents the sum. Swarded and the costs awarded, I am unable to understand, and counsel for the respondents were unable to enlighten us.''

This case therefore cannot help the plaintiff in hiscontention and the same is the principle on which another case relied upon was decided namely, --'Mills v. Duckworth', reported in 1938 1 All ER 318. There the plaintiffs in an action for damages for negligence obtained a judgment in their favour. They took the amount awarded out of money which had been paid into Court and then appealed on the quantum of damages.

It was contended that having taken money out of Court and thereby approbated the judgment, they could not reprobate it by appealing. It was held by Greer L. J. that the plaintiffs were entitled to appeal, because it could not be said that by appealing as to quantum of damages, they were reprobating the judgment. It was pointed out by Greer L. J. that it was not the contention of the appellants that the judge had no jurisdiction to pass any judgment in favour of the plaintiffs and if that were so, and if the plaintiffs had taken away the money that would be something which the invalid award gave them and then they could not subsequently come to Court and appeal against it.

It was not as if the appellant was challengingthe award itself. Having accepted the moneys under an award the plaintiff or the appellant could not challenge the award on the ground that it was invalid, but they certainly can come to the Court and. say that the quantum was inadequate and wrongly assessed. This particular point is referred to in the case I have already discussed namely 'Dextors Ltd. v. Hill Crest Oil. Co. Ltd., (B)', where Scrutton L. J. at page 358 observed as follows :

'It startles me to hear it argued that a person can say that the judgment is wrong and at the same time accepts payment under the judgment as being right. That seems to me a misapplication of the Rule and for the same reason I think the appellants who have acted on the award by taking money under it have debarred themselves from appealing against it and saying it was wrong.'

In the above two cases cited by Mr. Purshottam there was no challenge to the award or the judgment itself or any appeal from the decision, but it was purely an appeal as regards the quantum and therefore clearly is not a matter where a party could be held to have elected.

25. Mr. Purshottam relied very strongly on a decision of the Privy Council in the case of --'Saratkumari Dasi v. Amulyadhan Kundu', reported in 25 Bom LR 548: AW 1923 PC 13 and as much reliance was placed on this case, I will deal with it in detail, in that case a pardanashin lady the appellant, sued and obtained a decree against the respondent. When the respondent's appeal against the decree was pending in the High Court, the matter was compromised on the appellant's behalf and thereupon the respondents deposited a sum of money in Court under the compromise. The lady thereafter filed a suit challenging the validity of the compromise.

It was held that the onus of proving that the compromise was made with full knowledge and consent of the appellant lay on the respondents and it was further held that the fact of her having applied for and obtained an order from the Court to treat part of the deposit made under the compromise is security for the costs of the respondents in her appeal to the Privy Council, did not estop her from impeaching the validity of the decree. The principal part of the judgment is devoted to weighing of the evidence as to whether the compromise was valid and their Lordships held that it was not valid. Thereafter they very shortly dealt with a point that was rawed at page 559 (of Bom LR); (at p. 20 of AIR), as follows :

'The respondents rely upon another point It is this. The appellant, after having obtained leave to appeal to His Majesty in Council applied to the Court for, and on 2-9-1920 obtained an order that Rs. 4000/- (the portion of the Rs. 13,500/- paid into Court), should be held as security [or the costs of the respondents in the appeal to this Board.

It was contended that this transaction amounted to an adoption by the appellant of the decree while at the same time she was impeaching it and was therefore, estopped from doing so. If the appellant should fail in this appeal, the money lodged in Court will belong to her. If she succeeds in the appeal the money lodged in Court will be returned to the respondents, subject, however, to any claim she may successfully establish to have any costs awarded toher paid out of it. In their Lordships' view the point is entirely unsustainable.'

Their Lordships brushed aside the contention in a very summary manner in one sentence and that is for obvious reasons. If one turns to p. 552 (of I5om LR): (p. 16 of AIR), where the facts are set out it is clear as stated by the Privy Council that when that compromise was effected, the sum of Rs. 13,500/-namely the amount under the compromise, was offered to the appellant's Vakil but he refused to receive it. When that refusal by the appellant to receive the amount was brought to the notice of the Court on the following day the Court ordered that the money should be brought into Court and this was done.

The money having been brought into Court all that happened was, that she was at liberty, if she were to approve of the compromise, to withdraw the amount less the sum of Rs. 4,000/- which under the order of the Court was to be retained as security for the costs of the other party, the respondents. In these circumstances, there is no question of election and I am not surprised that their Lordships of the Privy Council summarily rejected that contention. Therefore this case, although strongly relied upon, has no bearing on the question of election.

26. This brings me to the case relied upon by the defendants viz., -- 'Rungama v. Atchama', reported in 4-Moo Ind App 1 (C), which was relied upon by the Attorney General for the proposition to be found at page 103. Mr. Purshottam in fact tried to rely upon the observations in another part of the same passage for the purpose of saying that there must be full knowledge of the circumstances before there could be any ratification and the observations are to be found on that page as follows :

''Supposing Jaganadha to have acquiesced, after he came of age, in the division of property made by Venkatadry, it was an acquiescence on the footing of a right already asserted by the father to exist in Bamanadha, and it does not appear that Jaganadha possessed all the knowledge, or was placed in the circumstances which must exist in order to make his ratification binding, even if we assume' what is not by any means clear, that such subsequent ratification would be equivalent for the purpose, in Hindu Law, to previous consent.'

Mr. Purshottam is not right in relying on this for the purposes of the question of election. Their Lordships were making these observations in connection with acquiescence on the part of a certain party in a certain situation and considering what would amount to acquiescence in law. Their Lordships were referring to the question of Jaganadha's acquiescence in the division of the property after he came of age and held that, that did not preclude him from establishing his right to recover the ancestral property with Venkatadry under Hindu Law had no power to alienate.

But on the other hand on the principle that a party cannot affirm and disaffirm the same transaction, effect had to be given to the intentions of Ven-katadry in so far as the property of Venka-tadry was concerned which Venkatadry could dispose of in his own right and that property must be given up for the benefit of the other party inasmuch as no consent was necessary for the disposal of such property which was not ancestralproperty and in connection with that part of the disposition of the property their Lordships stated that principle of election which they described as a principle common to all law and is based on the rules of justice namely that a party shall not at the same time, affirm and disaffirm the same transaction namely affirm it as far as it is for his benefit and disaffirm it as far as it is to his prejudice and therefore the Privy Council stated that

'If Jaganadha takes, as we think he is entitled to do, the whole ancestral property which the father could not dispose of without his consent, we think he must give up for the benefit of Ramanadha the properly included in the division, to the disposition of which his consent was not necessary,'

Therefore the observations in this connection, namely) full knowledge of the circumstances and consent are only made in connection with acquiescence as regards ancestral property and do not refer to or qualify the question of election.

27. In these circumstances, I am clearly of the opinion that looking to the undisputed documents presented to the Court' the compromise was one under which the plaintiff elected to get benefit and he withdrew the moneys under an order of the Court which could only belong to him on the footing that he accepted the compromise. He was aware at that time that a suit was pending in which he was challenging this very compromise and with knowledge of the compromise and with knowledge of the contentions in the suit the plaintiff withdrew those moneys and thereby to my mind clearly elected to abide by the Compromise and accept it.

It is not necessary in my view that all the details and facts leading up to the compromise should be known to a party, nor is it necessary that the party should be aware of the implications that may follow upon his election. But, even if that were necessary, I am further of the opinion that when the plaintiff admitted in the witness box that he knew of the compromise and of the suit and he was aware of all the averments set out in the plaint namely, how and in what circumstances the compromise was arrived at and why the compromise was bad and yet withdrew the moneys deposited under the compromise he thereby precluded himself from challenging the compromise and the release in this suit. This is, an I have said above, based on broad principles of estoppel, namely, it is the principle of law that the plaintiff is debarred now from saying that the compromise was brought about wrongly and against his interests.

28. Before I answer the issue and make the final order in accordance with what I have stated-above, I may say that Mr. Ptirshottam on behalf of the plaintiff had urged that if this course which I am adopting were followed some evidence available to the plaintiff now may be lost, because the evidence is of two very old witnesses who are 75 years old.

I do not think such a consideration should come in the way of my deciding this preliminary issue, because, in that case no preliminary issue would be decided by a Court and secondly the matter does not seem to be of such urgency. The plaint was filed in 1951 and the suit has been pending now for over five years. No notice of motion was taken out for expedition on this ground or for the examination of these witnesses de bene esse both courses being open to him at all stages of the suit.

29. I therefore answer the preliminary issue, being issue No. 1 in the affirmative. As I have treated this issue as an issue of law and answered it in the affirmative, it is not necessary for me to proceed with the other issues and come to a finding on the other issues. The suit must therefore stand dismissed with costs.

30. Suit dismissed.

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