Approbate and Reprobate PDF

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Research Paper- No one can Approbate and Reprobate at the same time....

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PROPERTY LAW

RESEARCH PAPER

ON NO ONE CAN APPROBATE AND REPROBATE AT THE SAME TIME

Submitted by:

Submitted to:

PRIYANKA KHOSLA

Ms. Kusum Lata

60817703816 VI-B

Vivekananda School of Legal Studies Vivekananda Institute of Professional Studies

Accredited Grade “A” by NAAC, Recognized under Section 2(f) of UGC, Affiliated to Guru Gobind Singh Indraprastha University, Recognized by Bar Council of India Approved BY AICTE, ISO 9001:2015 AU Block, Outer Ring Road, Pitampura, Delhi – 110034

DECLERATION

I, hereby declare that the dissertation entitled “No one can Approbate and Reprobate at the same time” is based on original research undertaken by me and it has not been submitted in any University for any degree or diploma.

Place New Delhi Date

Name of the student

4th April, 2020

Priyanka Khosla Enrollment No. 60817703816

ACKNOWLEDGEMENT

I, Priyanka Khosla, would like to take up this opportunity to thank all those who have stood by me throughout the duration of this project and helped me in completing it. Foremost my teacher Ms. Kusum Lata. I thank her for her faith in me to provide me with such a topic of research. Her constant guidance at every step and keen attention to detail has been elementary in the completion of this project. The college administration and staff had no less part in this job. The value of their support cannot be expressed in words. Finally, I would like to thank God for his benevolence and grace in enabling me to finish this task. I express my heartfelt gratitude to everyone involved.

Priyanka Khosla Semester VI (B) Enrollment no- 60817703816

TABLE OF CONTENT

1) TABLE OF CASES

2) INTRODUCTION

3) RESEARCH METHODOLOGY

4) APPROBATE AND REPROBATE

5) CASE LAWS

6) CONCLUSION

7) BIBLIOGRAPHY

TABLE OF CASES

1) R.N Gosain v. Yashpal Dhir, (1992) 4 SCC 683 2) Karam Kapahi v. Lal Chand Public charitable trust, (2010) 4 SCC 753 3) C. Beepathuma v. Velasari Shankarnarayan Kadambolithya, AIR 1965 SC 241. 4) Transcore v. Union of India, (2008) 1 SCC 125 5) Bhau Ram v. B. Baijnath Singh, AIR 1961 SC 1327 6) National Insurance Co. Ltd. v. Mastan, A.I.R 2006 SC 577 7) (1981-1985) All ER Rep 651(HL) : (1982) 7 AC 345 8) (1981-1985) All ER Rep 651(HL) : (1982) 7 AC 345 9) Mumbai International Airport v. Golden Chariot, (2010) 10 SCC 422 10) Bakshi Ram v. Brij Lal (1994) Supp (3) SCC 198 11) State of Punjab and Ors. Vs. Dhanjit Singh Sandhu AIR 2014 SC 300 12) R.N. Gosain Vs. Yashpal Dhir AIE 1993 SC 352 13) The Rajasthan State Industrial Development and Investment Corporation and Anr. Vs. Diamond and Gem Development Corporation Ltd. and Anr. AIR 2013 SC 1241 14) Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport 2010 10 SCC 422 15) Rani Inder Kumari v. State of Rajasthan (1976) 1 SCC 377 16) Yazdani International v. Auroglobal (2014) 2 SCC 657 17) Kashmir Singh v. Union of India (2008) 7 SCC 259

INTRODUCTION

“Transfer of property” or means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.1 The doctrine of election is based on the principle that law does not permit a person to both approbate and reprobate at the same time. According to the doctrine of election no party to an instrument can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing other advantage.2 The phrase ―approbate and reprobate is borrowed from Scots Law where it is used to express the common Law principle of election, namely, that no party can accept and reject the same instrument.3 Supreme Court of India has applied the Latin Maxim “qui approbate non reprobate” (one who approbates cannot reprobate) in Indian conditions as a basic inhibitory principle of law The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden. Election is an obligation to choose between two inconsistent or alternative rights in a case where there is a clear intention of the grantor that the grantee should not enjoy both. In other words, a person cannot take under and against one and the same

1

In this section “living person” includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. The Transfer of Property Act of 1882 pertained to British India and outlined the legal procedures for transferring property from one person to another. The act defined “transfer of property” as “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.” This means transferring of property needed to occur between living people, needed to happen in the present and future and could be between single people or groups of people. Transferable property could be movable or immovable. 2 3

R.N Gosain v. Yashpal Dhir, (1992) 4 SCC 683 Karam Kapahi v. Lal Chand Public charitable trust, (2010) 4 SCC 753 at Para. 50, Page. 768

instrument. If through one instrument, you have two transactions, then you have to accept both the transactions and none. You can’t accept one and reject other. Example: Goti sells his garden and bungalow to Kapsa by one instrument. Kapsa only wants to retain bunglow and wants to cancel the transfer regarding garden, this is not possible. If Kapsa takes bunglow, it means, he has confirmed the transaction and has to take garden also. According to section 35 of the transfer of property Act 1882 provide that, Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless.

“Allegans Contraria Non Est Audiendus” Legal maxim and Latin for “one making contradictory statements" is not to be heard”- principle of good faith that a person should not be allowed to testify hot and cold at diff erent times about the same event" denying today" affirming tomorrow. It is a concept of common sense and used to bring cross examination to an abrupt end. Such a principle has its basis in co mmon sense and co mmon justice" and whether it is called estoppel or by establishment of the truth would injure him. An intent to deceive or defraud is "however" not necessary. The principle is yet another instance of the protection which law accords to the faith and confidence that a party may reasonably place in another" which constitutes one of the most important aspects of the principle of good faith. The doctrine of election is one of the most important areas of the law relating to transfer of property. Section 35 of the Transfer of Property Act deals with this doctrine. The primary element in the doctrine of election is the presence of choice. The foundation of election is that a person taking the benefit of an instrument must also bear the burden.4 Generally, Election means choosing between two inconsistent or alternative rights.

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Codrington vs Lindsay 18C3" 8 chapter 5C8

RESEARCH METHODOLOGY

1) Research Problem What do we mean by the phrase “no one can approbate and reprobate at the same time”?

2) Hypothesis The hypothesis would be that the principle- “no one can approbate and reprobate at the same time” is based on the doctrine of election which postulates that no party can accept and reject the same instrument.

3) Objective The main objective of this research paper is to understand

Principle of- Approbate and Reprobate



Rule of Election



Important Case Laws

4) Methodology The research is basically based on doctrinal method of research as no field work is done in this topic. The relevant data is collected from secondary sources. Material and information is collected from vertical sources i.e. Law Books, Journals, including e-books and ejournals using internet, articles published in newspaper, etc.

APPROBATE AND REPROBATE

Doctrine of Election The doctrine of election is stated in Section 35 of the Transfer of Property Act alongside Section 180 to 190 of the Indian Succession Act. Section 35 reads as5- “Where a person professes to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.” 6 Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on a person in such a manner that one right is in lieu of the other, that person can choose or elect only one of them. A person cannot take under and against the same instrument.7 Under any instrument if two rights are conferred on a person in such a manner that one right is lieu of the other" he is bound to elect only one of them. It is a famous proverb in English that -one cannot eat the cake and have it too - which relates to t h e f a c t t h a t i f

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Prof. Rajni Malhotra Dhingra, Transfer of Property Act, 1882 & Indian Easement Act, 1882 (pg. 89) (Central Law Publication, Allahabad/2017) 6 Illustrations-The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B. The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own. A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom. 7 C. Beepathuma v. Velasari Shankarnarayan Kadambolithya, AIR 1965 SC 241.

given a choice" an individual can either opt for the choice or relinquish i t . However both the options cannot be exercised at the same time. The same concept is more or else ingrained in the Indian legal system in as much as the Transfer of Property Act incorporates the doctrine of election which has been consistently apply to imply that benefit under one option can alone be exercised by an individual.

Essential Conditions for Application of this Doctrine: Essential conditions for application of this doctrine are as follows...