Allahabad High Court
Ram Kumar And Others vs Deputy Director Of Consolidation, Lko. … on 9 May, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:27494 Court No. - 7 Case :- WRIT - B No. - 396 of 2025 Petitioner :- Ram Kumar And Others Respondent :- Deputy Director Of Consolidation, Lko. And 3 Others Counsel for Petitioner :- Anoop Srivastava Counsel for Respondent :- C.S.C., Gyanendra Vikram Singh Hon'ble Saurabh Lavania,J.
1. Supplementary affidavit filed today on behalf of the petitioners is taken on record.
2. Heard Shri Anoop Srivastava along with Shri Jai Shukla, learned counsel for the petitioners, Shri Hemant Kumar Pandey, learned Standing Counsel for the State as well as Shri Gyanendra Vikram Singh, learned counsel for the private opposite parties and perused the record.
3. The instant petition has been preferred seeking following main relief:-
“(i) Issue a Writ, direction or order in the nature of Certiorari quashing the impugned Order dated 15/3/2025 passed by the Deputy Director of Consolidation, Lucknow (opposite party no. 1) as contained in Annexure No. 1 to this Writ Petition.”
4. The brief facts of the case, which are necessary for deciding the instant petition, are as under :-
(i) During consolidation proceedings, Rameshwar Prasad (predecessor-in-interest of the petitioners) claimed his rights over the property in dispute of Smt. Ram Dei, widow of Choti, resident of Rasoolpur Tikaniyamau, Pargana and Tehsil Mohanlalganj, District Lucknow. The rights were claimed on the basis of the registered ‘Will’ dated 26.10.1979 (in short ‘Will’), copy of which is annexed as Annexure No.3 to the present writ petition.
(ii) The land/property in issue i.e. Gata No.384/1, 384/2, 385, 386/1, 386/3, is situated at Village Begariya, Pargana and Tahsil Mohanlalganj, District Lucknow.
(iii) It would be apt to indicate that the Choti S/o Maiku, with whom Smt. Ram Dei solemnized second marriage was the recorded tenure holder of land/property in issue.
(iv) The year of death of Ram Dei has been indicated as 1996. However, the exact date of her death has not been indicated.
(v) Ram Dei was married to Dulare and out of this wedlock Rameshwar Prasad was born.
(vi) After death of Dulare, Ram Dei solemnized marriage with Choti, whose first wife namely Meda had expired. In other words when Ram Dei and Choti solemnized marriage, the husband of Ram Dei was no more and wife of Choti was no more.
(vii) Out of the wedlock of Meda and Choti two daughters were born namely Kunwara and Kalawati. At the cost of repetition, it is to be noted that Rameshwar Prasad was born out of the wedlock of Ram Dei and Dulare.
(viii) The claim of the Rameshwar Prasad was allowed by the Consolidation Officer (in short “C.O.”) vide order dated 23.03.1998.
(ix) The order dated 23.03.1998 was an exparte order and the same was based on the statement of Rameshwar Prasad S/o Smt. Ram Dei and Dulare, recorded on 10.03.1998, and Narayan, witness of the “Will”. The relevant part of statement on oath of Rameshwar Prasad, S/o Smt. Ram Dei and Dulare, reads as under :-
“Jh jkes’oj iq= nqykjs mez 50 lky is’kk [ksrh fuoklh xzke [ktqgk etjk fVdfu;k eÅ jlwyiqj ijxuk o rglhy eksgku ykyxat tuin y[kuÅ us cgyQ c;ku fd;k fd eSa Nsnk iq= eSdw dks tkurk gaawA ;s esjs pkpk gSA bUgksaus esjs uke ,d olh;r fd;k Fkk tks fyf[kr esa lyaXu gSA budh lsok lRdkj eSaus fd;k gS esjh lsok ls [kq’k gksdj bUgksus viuh tk;nkn dh olh;r esjs uke dj fn;k Fkk Nsnk dh e`R;q gks pqdh gSA vly olh;r ns[kdj dgk ;g ogh olh;r gSA olh;r ds xokg ukjk;.k o fl;kjke Fks ftuesa ls ukjk;u thfor gS mudk c;ku gks pqdk gSA fl;kjke ej pqds gSA c;ku lqudj rLnhd fd;kA”
(x) From the aforesaid statement of Rameshwar Prasad, as also from the ‘Will’ dated 26.10.1979, copy of which is on record as Annexure No.3 to the writ petition, it is evident that Narayan and Siya Ram were the witnesses of the ‘Will’.
(xi) The statement of Rameshwar Prasad, recorded on 10.03.1998, quoted above, indicates that one of the witnesses of the ‘Will’ namely Siya Ram had expired and for this reason he was not produced before the C.O.
(xii) Indisputably, the order of the C.O. dated 23.03.1998, was favourable to the petitioners and this order was based upon the statements of Rameshwar Prasad S/o of Smt. Ram Dei and Dulare, and Narayan, one of the witnesses of the ‘Will’.
(xiii) It appears that taking note of the statements of Rameshwar Prasad and one of the witnesses of the ‘Will’ namely Narayan in the order dated 23.03.1998, the C.O. observed as under :-
“oknh jkes’oj us xokg gkfl;k jkeujk;u dk c;ku djk;k gSA fTkUgksaus vius c;kuksa esa Li”V dgk gS fd jensbZ us jkes’oj gd esa olh;r fd;k FkkA ftlesa og gkfl;k xokg FksA nksuksa xzkeksa dh olh;r gksuk crk;k gSA nwljk xokg fl;kjke ej pqds gSA”
(xiv) To impeach the aforesaid observation of the C.O. in the order dated 23.03.1998, the statement of Narayan (Ram Narayan) has not been placed on record.
(xv) The order dated 23.03.1998, passed by the CO. was challenged before the Settlement Officer of Consolidation (in short “S.O.C.”) by means of Appeal No.6 (Smt. Kunwara and others Vs. Rameshwar and others). Another Appeal No.7 (Smt. Kunwara and other Vs. Rameshwar and others) was filed before the S.O.C. under Rule 109 A (3) of the U.P. Consolidation of Holdings Rules, 1954 (in short “Rules of 1954”).
(xvi) Both the aforesaid appeals were decided vide order dated 29.08.2008 by the S.O.C. By this order the matter was remanded back to the C.O. for deciding the dispute between the parties afresh.
(xvii) After remand, before the C.O., the statement of one Siya Ram S/o Lalla, aged about 75 years, was recorded.
(xviii) Before the C.O., after remand, the statement of another witness Narayan was not recorded as he was not produced for the reason that he was expired on 13.07.2007, as appears from the Annexure No.9 to the present petition, which is the copy of the death certificate.
(xix) The C.O. taking note of the statement of Siya Ram, the witness of the ‘Will’, passed the order dated 10.11.2014. This order was against the petitioners.
(xx) Challenging the order dated 10.11.2014, an Appeal No.18/2020 (Rameshwar Prasad Vs. Smt. Smt. Kunwara and others), under Section 11 (1) of the Act of 1953, was filed. Another Appeal No.20 of 2020 (Rameshwasr Prasad Vs. Smt. Kunwara and others) under Rule 109 A (3) of the Rules of 1954 , was filed. Both these appeals were allowed by the S.O.C., Lucknow, vide order dated 20.01.2020.
(xxi) Challenging the order dated 20.01.2020, the Revision No.31 of 2025 (Rajendra Kumar and others Vs. Ram Kumar and others), under Section 48 (1) of the Act of 1953. Another Revision No. 32 of 2025 (Rajendra Kumar and others Vs. Ram Kumar and others) was also filed under Section 48 (1) of the Act of 1953.
(xxii) Vide the impugned order dated 15.03.2025 the Deputy Director of Consolidation decided both the revisions. This impugned order dated 15.03.2025 is favourable to the opposite parties. The relevant portion of the impugned order dated 15.03.2025 is extracted herein under :-
“eSus mHk;i{kksa }kjk izLrqr fyf[kr cgl rFkk i=koyh ij layXu vihyh; U;k;ky; dh i=koyh rFkk mlesa layXu pdCkUnh vf/kdkjh ds vkns’k dk voyksdu fd;kA voyksdu ls fofnr gS fd xzke jlwyiqj fVdfu;keÅ ds tks0pd0vk0 i= 23 Hkkx 1 ds pd la0&112 o 312 o xzke csxfj;k ds tks0pd0vk0 i= 23 Hkkx 1 ds pd la0&203 esa vafdr [kkrsnkfj;k jensbZ fo/kok NksVh e`rd ds mRrjkf/kdkj ds lEcU/k esa gSA pdCkUnh vf/kdkjh us viuh foospuk esa vafdr fd;k gS fd NksVh ds nks fookg gq, FksA izFke fookg es<+k ds lkFk gqvkA es<+k o NksVh ls ek= nks lUrku yMfd;ka dqokjk o dykorh mRiUu gq;hA nwljk fookg jensbZ ds lkFk gqvkA jensbZ o NksVh ls dksbZ lURkku mRiUu ugha gq;hA jensbZ us NksVh ls nwljk fookg fd;k FkkA jensbZ dk izFke fookg nqykjs fuoklh [ktqgk etjs jlwyiqj fVdfu;keÅ ds lkFk gqvk FkkA jensbZ o nqykjs ls jkes’oj dk tUe gqvkA bl izdkj tehankjh fo0vf/k0m0iz0 dh /kkjk&171 mRrjkf/kdkj ds dze esa dqokjk vkfn gh okfjl gS ijUrq jkes’oj dk dFku gS fd jensbZ us mlds gd esa iathd`r olh;r dh gSA ;fn olh;r fl) gksrh gS rks dqaokjk vkfn dk mRrjkf/kdkj ugha fn;k tk ldrk gSA dfFkr olh;r ds gkfl;k xokg fl;kjke iq= ykyk o ujk;u iq= nqxkZ gSA xokg ujk;u us voj U;k;ky; ij vafdr c;ku fnukad&10-03-1998 esa jensbZ }kjk jkes’oj ds gd esa olh;r fu”ikfnr djuk ek= crk;k gS c;ku esa fof/k ds vuq#i olh;r dk lR;kiu ugha fd;k gS vFkkZr mlus c;ku esas ;g ugha dgk fd olh;r fy[kus ds ckn jensbZ dks i<+dj lquk;h x;h vkSj lquus ds ckn jensbZ us mlds o nwljs xokg ds lkeus vius gLrk{kj vFkok fu0vaxwBk yxk;k FkkA bl xokg dks U;k;ky; ij ftjg gsrq is’k ugha fd;k x;k vkSj cgl ds le; crk;k x;k fd xokg ujk;u dh e`R;q fnukad&13-07-2007 dks gks x;hA nwljs gkfl;k xokg fl;kjke iq= ykyk ds lEcU/k esa fookn gSA oknh jkes’oj us fnukad&10-03-1998 dks voj U;k;ky; ij vius ‘kiFkiwoZd c;ku esa xokg fl;kjke dks e`rd crk;k gSA fnukad&19-08-2014 dks dqaokjk vkfn dh vksj ls ,d Nk;kizfr ‘kiFk i= ‘kiFkh jke cgknqj iq= fl;kjke tks l0fodkl vf/kdkjh iapk;r xkslkbZxat dks lEcksf/kr gS nkf[ky fd;k x;kA bl ‘kiFk i= esa ‘kiFkh }kjk fl;kjke iq= ykyk fuoklh [ktqgk etjk jlwyiqj fVdfu;keÅ dh e`R;q ekpZ 2011 esa gksuk vafdr fd;k ijUrq ewy ‘kiFk i= nkf[ky ugha fd;k x;k gSA ;fn fl;kjke jkes’oj ds c;ku ds vuqlkj fnukad&10-03-1998 ds iwoZ ;k ekpZ 2011 esa Nk;kizfr ‘kiFk i= jkecgknqj ds vuqlkj gq;h rks voj U;k;ky; ij fnuakd&23-07-2011 dks c;ku vafdr djkus okyk O;fDRk fl;kjke iq= ykyk dSls gks ldrk gSA oknh jkes’oj us fnukad&11-09-2012 dks iqu% vafdr djk;s vius c;ku esa iwoZ ds c;ku fnukad&10-03-1998 dk [k.Mu Hkh ugha fd;k x;kA ,slh fLFkfr esa fnukad&11-09-2012 dks ntZ c;ku fl;kjke iq= ykyk lafnX/k gks tkrk gSA ;fn ;g lR; eku fy;k tk;s fd dfFkr olh;r ds gkfl;k xokg fl;kjke iq= ykyk us gh fnukad&11-09-2012 dks c;ku ntZ djk;s rks mlds c;ku ls dfFkr olh;r lkfcr ugha gksrh gSA bl izdj.k esa xokg us c;ku dh eq[; ijh{kk esa jensbZ }kjk jkes’oj ds gd esa nksuksa xokgksa ds lkeus olh;r fu”ikfnr djuk crk;k gS ijUrq izfrijh{kk esa iz’uksa ds mRrj udkjkRed fn;sA xokg us dgk eq>s ugha ekywe fd olh;r dks fdrus lky gq, tkudkjh ugha gSA fdrus cts lc jftLVªkj ds ;gka x;s ugha ekyweA fdrus #i;s ds LVkEi ij olh;r fy[kh x;h rFkk olh;r fy[kus okys eqa’kh dk uke Hkh ugha ekyweA olh;r esa D;k fy[kk x;k Fkk eq>s ugha ekyweA vkxs dFku fd;k fd jensbZ us tc olh;r dh Fkh rc mudh mez 20 lky FkhA ujk;u us jftLVªh vkfQl esa nks txg vaxwBk yxk;k FkkA mijksDr ls Li”V gS fd dfFkr olh;r ds lEcU/k esa mls dksbZ tkudkjh ugha gSA lc jftLVªkj ds vkfQl esa flQZ fl;kjke xokg dk gh vadu fd;k x;k tcfd mlds c;ku ds vuqlkj ujk;u us nks txg vaxwBk yxk;k tcfd dfFkr olh;r ij ,slk ugha gSA dfFkr olh;rdrhZ us dfFkr olh;r esa vius dks o`)koLFkk dks izkIr crk;k tcfd xokg fl;kjke us olh;r ds le; jensbZ dh mez 20 o”kZ crk;hA jkes’oj us c;ku dh izfrijh{kk esa crk;k gS fd olh;r ij fdlus vaxwBk nLr[kr cuk;k mls ugha ekyweA blfy, nksuks xokg ds c;ku fo’oluh; ugha gSA nqxkZizlkn o jkelsod us vius&vius c;ku esa jkes’oj ds gd esa jensbZ }kjk dksbZ olh;r fu”ikfnr djus ls bUdkj fd;k x;k gSA Li”V gS fd dfFkr iathd`r olh;r fnukad&26-10-1979 cgd jkes’oj fl) ugha gksrh gSA oknh vius nkos dks fl) djus esa iw.kZ#i ls vlQy jgk gSA izfrokfnuhx.k dqaokjk vkfn e`rd jensbZ dh lkSrsyh iqf=;ka gS tks jensbZ ds ifr NksVh iq= eSdw ls mRiUu gSA NksVh iq= eSdw fookfnr Hkwfe ds iwoZ vly LoRo/kkjh gSA blfy, ;w0ih0tsM0,DV dh /kkjk&171 esa of.kZr mRrjkf/kdkj ojh;rk dze esa dqaokjk o dykorh e`rd jensbZ csok NksVh dh oS/kkfud okfjl fl) ekurs gq, pdcUnh vf/kdkjh }kjk fnukad&10-11-2014 dks jkes’oj iq= nqykjs dh vkifRr fujLr djrs gq, xzke jlwyiqj fVdfu;k eÅ ds pd vkdkj i= 23 Hkkx&1 ds [kkrk la0&112 o 312 rFkk xzke csxfj;k tks0pd0vk0i= 23 Hkkx&1 ds pd la0&203 esa vafdr [kkrsnkfj;k jensbZ fo/kok NksVh e`rd dk uke [kkfjt djds Jherh dqaokjk iq=h NksVh IkRuh jkejkt rFkk dykorh iRuh jkeukFk iq=h NksVh ds uke crkSj oS/kkfud okfjl ntZ dh x;hA mijksDr ds v/kkj ij Li”V gS fd pdCkUnh vf/kdkjh }kjk ikfjr vkns’k fnukad&10-11-2014 fof/kd gS D;ksafd jkes’oj pdcUnh vf/kdkjh ds U;k;ky; esa viuh dfFkr olh;r dks fl) djus esa vlQy jgsA vihyh; U;k;ky; us ek= vihydrkZ }kjk e`R;q izek.k i= fnukad&28-03-2012 ds vk/kkj ij vihy Lohdkj dj vihydrkZ dk uke fookfnr Hkwfe esa ntZ dj fn;kA muds }kjk i=koyh ij miyC/k vU; lk{;ksa ,oa xokgksa dk laKku gh ugha fy;k x;kA ftlesa jkes’oj izlkn voj U;k;ky; esa viuh dfFkr olh;r xokgksa }kjk fl) ugha djk ik;s gSA ,slh fLFkfr esa pdCkUnh dk vkns’k mfpr gSA blesa fdlh izdkj ds gLr{ksi dh vko’;drk izrhr ugha gksrh gSA ,slh fLFkfr esa fuxjkuh Lohdkj fd;s tkus ;ksX; gSA vRk% vkns’k gqvk fd%&
vkns’k
mijksDr foospuk ds vk/kkj ij fuxjkuhdrkZ dh fuxjkuh Lohdkj dh tkrh gS rFkk cUnkscLr vf/kdkjh }kjk ikfjr vkns’k fnuakd&20-01-2020 fujLr fd;k tkrk gSA ;gha vkns’k fuxjkuh la0&32&2025 ij Hkh ykxw gksxkA i=koyh okn veynjken nkf[ky nQ~rj gksA”
5. In the aforesaid background of the case, the present writ petition assailing the order dated 15.03.2025, passed by the D.D.C., Lucknow, has been filed.
6. Learned counsel for the petitioner for the purposes of causing interference in the impugned order dated 15.03.2025 submitted that the ‘Will’ was duly proved by the witness of the ‘Will’ namely Siya Ram and therefore in reversing the order of the S.O.C. dated 20.01.2020 the D.D.C. has committed error of law and fact both, passed in the appeals filed by Rameshwar Prasad (predecessor-in-interest of the petitioners), which was favourable to the petitioners, and as such the impugned order dated 15.03.2025 is liable to be interfered with by this court. He also submitted that during pendency of the revision, revisionist No.3 Smt. Kalawati, W/o Ram Nath and opposite party No.5 Smt. Rameshwari wife of Rameshwer Prasad were expired and despite this no substitution application was moved. The prayer is to cause interference in the impugned order dated 15.03.2025.
7. On the other hand, learned counsel for the private opposite parties as well as the learned Counsel for the State have submitted that in the instant matter the order of the D.D.C. dated 15.03.2025, impugned herein, is just and proper and no interference by this court is required.
8. Considered the aforesaid and perused the record.
9. To the view of this Court, in the instant case, the principle of approbate and reprobate would apply, which means that a person cannot be permitted to blow hot and cold at the same time. It is for the following reasons :-
(a) Initially the Rameshwar Prasad (beneficiary of the ‘Will’) before the C.O. on 10.03.1998 himself stated that witness of the ‘Will’ namely Siya Ram had died.
(b) Based upon the statement of the Rameshwar Prasad as also another witness of the ‘Will’ namely Narayan, the C.O. in order dated 23.03.1998 recorded specific finding which is to the effect that ‘Siya Ram had expired’ and for this reason the ‘Siya Ram’ was not produced before the C.O.
(c) After remand of the case vide order dated 29.08.2008, the Siya Ram, who had expired, appeared and his statement was recorded.
10. At this stage, it is to be noted that Narayan, another witness of the ‘Will’, was not produced before the C.O. after remand as he was expired on 13.07.2007.
11. At this stage, it would also be relevant to indicate that according to a death certificate of Siya Ram on record he died on 28.03.2012. However the fact remains that when Rameshwar Prasad, (beneficiary of the ‘Will’) and the another witness of the ‘Will’ namely Narayan before the C.O. at the initial stage of the proceedings i.e. way back in the year 1998 stated that Siya Ram had expired and taking note of this fact the final order in the case was passed by the C.O. on 23.03.1998, then how the said witness of the ‘Will’ namely Siya Ram, who had expired, appeared before the C.O. in the year 2011, i.e. after about 14 years.
12. In the case of Mumtaz Yarud Dowla Wakf Vs. Badam Balakrishna Hotel Pvt. Ltd and others, 2023 SCC OnLine SC 1378, the Hon’ble Apex Court has observed as under :-
“16. The conduct of a party assumes significance. If a party is likely to have an undue advantage, despite the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during the execution proceedings. In other words, a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction. One has to see the consequence while taking note of the huge pendency of the cases before various Courts in the country. There is no gainsaying that but for the adverse decree suffered, a judgment-debtor would not have ventured to raise such a plea. It is clearly a case of an afterthought to suit his convenience. He cannot be allowed to approbate and reprobate. Though we are conscious about the earlier precedents dealing with the stage at which such a plea can be raised, much water has flown under the bridge in terms of the ground reality. Union of India and Others v. N. Murugesan and Others, (2022) 2 SCC 25,
“Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
27. We would like to quote the following judgments for better appreciation and understanding of the said principle:
27.1.Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-02, para 23)
“23. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate. It is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. [(1921) 2 KB 608 (CA)], and in particular, the observations of Scrutton, LJ., at p. 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J. : (Verschures Creameries Ltd. case [(1921)] 2 KB 608 (CA)] , KB p. 611-12)
… Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act.’ The observations of Scrutton, L.J. on which the appellants rely are as follows : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)], KB pp. 611-12)
‘… A plaintiff is not permitted to “approbate and reprobate”. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election — namely, that no party can accept and reject the same instrument : Ker v. Wauchope [(1819) 1 Bligh PC 1 at p. 21 : 4 ER 1 at p. 8] : Douglas-Menzies v. Umphelby [1908 AC 224 at p. 232 (PC)] . The doctrine of election is not however confined to instruments. 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 some other advantage. That is to approbate and reprobate the transaction.’
It is clear from the above observations that the maxim that a person cannot “approbate and reprobate” is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury’s Laws of England, Vol. XIII, p. 464, para 512:
‘On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it.’
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144] : (SCC pp. 153-54, paras 22-23 & 25-26)
“22. The doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216] .)
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329]). In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has observed as under : (R.N. Gosain case [(1992) 4 SCC 683] , SCC pp. 687-88, para 10)
’10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party 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 some other advantage’.’
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25. The Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had.”
27.3.Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] : (SCC pp. 480-81, paras 15-16)
“I. Approbate and reprobate
15. A party cannot be permitted to “blow hot-blow cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [1956 SCR 451 : AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : (2013) 4 SCC (Cri) 587 : (2013) 3 SCC (L&S) 416].
16. Thus, it is evident that the doctrine of election is based on the rule of estoppel–the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.”
(emphasis supplied)
13. In view of the aforesaid, this Court is of the firm view that Siya Ram, who was produced before the C.O. after the order of the remand dated 29.08.2008 by Rameshwar Prasad, was a fake person.
14. For the aforesaid, this Court is not inclined to cause interference in the order impugned dated 15.03.2025 on the ground that the ‘Will’ was proved, which to the view of this Court was not proved for various reasons, most important out of which is to the effect that according to alleged/fake Siya Ram at the time of execution of ‘Will’ the testatrix namely Smt. Ram Dei was aged about 20 years, who actually at that point of time was an old lady.
15. In so far as the substitution of legal heirs of the opposite party No.5/Rameshwari, before the D.D.C. is concerned, this Court is of the view that the legal heirs were already on record, who are petitioners before this Court, and as such the substitution was not required and therefore on this aspect of the case no interference by this Court is required in the matter.
16. In so far as the substitution of legal heirs of Smt. Kalawati W/o Ram Nath is concerned, it would be apt to indicate that to establish the fact that Smt. Kalawati W/o Ram Nath/revisionist No.3 died during the pendency of the revision no document has been filed before this Court and further, the effect of the order dated 15.03.2025 would be that the legal heirs of Rameshwar Prasad, who claimed rights over the property in issue based upon the ‘Will’ dated 26.10.1979, i.e. the petitioners would not get any right over the property in issue of which Choti S/o Maiku was the recorded tenure holder and rights would be available over the property in issue to the legal heirs of Kunwara and Kalawati, both daughters of Choti S/o Maiku and Meda, first wife of Choti, in terms of Section 171 of Z.A. & L.R. Act, 1950 even if she had expired during the pendency of the revision.
17. For the reasons aforesaid, this Court finds no force in the present petition. Accordingly, the writ petition is hereby dismissed. No order as to costs.
Order Date :- 9.5.2025
ML/-