The Doctrine of Qui Approbat Non Reprobat

Introduction:

The Latin maxim “Qui Approbat non Reprobat” quite literally translates to “the one who approbates, cannot reprobate” or “that which I approve, I cannot disapprove”^[1]. The Doctrine of Approbate and Reprobate was established upon the Scottish laws and is now an essential principle of equity. To approve or reject anything is to approbate or reprobate. A person cannot approbate and reprobate something simultaneously, according to the law. Once an offer is made, the offeree can only either completely accept the offer or reject it. The law mandates that the offeree is prohibited from accepting only the parts of the offer beneficial to him while rejecting the parts that detract from or are not beneficial to the offeree at all. Anyone who receives benefits under a deed must accept it with the terms or responsibilities that the deed imposes.

Qui Approbat Non Reprobat

 The Doctrine of Approbate and Reprobate is also commonly known as the ‘Doctrine of Election’ in English Law. The Doctrine of Election bases itself upon the maxim “Allegans contraria non est audiendus” which means when people make comments that contradict one another, they will not be heard. This principle was laid down in the case of Cooper v. Cooper^[2]   where the court held that he who benefits from a will or any other document has a duty to offer full effect to the document or instrument from which he derives the benefit. If it is discovered that the instrument claims to deal with anything that was beyond the benefactor’s power to dispose of, but which can be carried out with the approval of the person who benefits from the same instrument, the legislation will impose the requirement of carrying the document into complete and full force and effect on the person who receives the benefit. Choosing between two different rights or conflicting rights is all an election entails. If two rights have been conferred upon a person in such a manner that one is in lieu of the other, he is obligated to elect or opt only one of the two rights under any instrument. “One cannot take under and against the same instrument”^[3]

Conditions for the Doctrine of Qui Approbat Non Reprobat

During the case trial of MPB v. LGK^[4], the conditions for the application of the doctrine of Approbate and Reprobate were laid down by the court as follows-

1. The decision to elect must have been made by the party explicit and unequivocal.
2. It is not obligatory for the electing party to have benefited from his decision.
3. The subsequent action of the electing party must be incongruous with his prior approbation or election.

Application of the Doctrine in Some Landmark Judgements

Based on the aforementioned doctrine, it is clear that even if a person accepts a contract on specific conditions of his own volition and works the contract out, he will not be allowed to abide by and comply with only certain provisions of the contract that have proven to be beneficial to him while repudiating or rejecting other clauses of the contract that may be detrimental to him. In its essence, this principle aims to prevent inconsistency during the conduct of the instrument/ contract while ensuring a fair outcome.

In the case of Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.^[5] when in defiance of the principal’s directions, an agent delivered products to the customer, a lawsuit was brought against the buyer in order to recoup the cost of the products. Subsequently, after the verdict, a second suit for damages was filed against the agent but the Bench ruled against the petitioner stating that if an individual has the right to claim either of the two reliefs and he chooses and receives one with his full knowledge, it is not permissible for him to reverse his decision and seek an alternative form of redressal.

The above judgement was also used as a precedent during the Indian case of Nagubai Ammal v.  B. Shama Rao^[6] wherein Certain proceedings in an earlier lawsuit, according to the plaintiff, were collusive. He presented evidence to support these claims, urged the court to make findings to that end, and then secured a decree based on those findings. The defendants contended that could not be allowed to alter his mind and allege in this case that the previous proceedings have not been collusive and succeed.

Lord Blackburn discussed the doctrine of election during the decision-making meeting of the House of Lords regarding Benjamin Scarf vs. Alfred George Jardine^[7]. He articulated that merely writing a remedy chosen by a party on a memorandum or any other indication that they would follow through with the chosen remedy does not immediately make it binding on the party. However, once the party has communicated their chosen remedy to the other party in a manner that makes the other party believe that the first party has made a choice, they have completed their election and cannot go any further. From this point, whether or not they intended it, the first party’s performance of an unequivocal act within the knowledge of the other party is considered to be an election.

In Hemanta Kumari Devi v. Parasanna Kumar^[8], the plaintiff was a landlord under a co-sharing system wherein she held 14 annas of land. For fair settlement of the rent holdings, applications were filled by her in order to file a suit regarding the same. The defendants questioned the validity of the applications and maintained that they would not be valid in the trial court. Upon the court’s acceptance of the defendants’ contention, the application was withdrawn by the plaintiff. After a partition with her co-sharers, the plaintiff’s holdings were found to be 16 and necessary changes were made to her application, allowing the facts of the case to be proven. Post this, fresh suits were filed by her upon which the defendants changed their stance and maintained that the plaintiff’s previous applications were maintainable, opposing the altered suit. It was held by the Calcutta High Court that:

1. Post the partition, the contents of the suit were different;
2. A volte-face cannot be assumed by a party litigant as they cannot assume inconsistent and contradictory positions
3. The applicability of the doctrine of approbate and reprobate is not limited only to the successive stages of just one suit but is also applicable to other suits, granted that the second suit was filed as a result of the judgement of the first suit.
4. Upon the sustenance of the objections of the defendant in two lower courts, the applications were withdrawn, and the sustenance would have prevailed evermore unless the plaintiff had the ability to establish contradicting facts.

During the trial of Bhagwat Sharan v. Purushottam^[9], it was held that under the principle of approbate and reprobate, an individual who benefits from a provision of a will cannot contest the remainder of the will. The plaintiff and defendants, in this case, filed a lawsuit to evict an occupant who claimed that the property had been transferred to him. As per the defendants, once the plaintiff accepts the will and benefits from it, he or she cannot then claim that the will is invalid and that the entire estate is joint family property. The plaintiff had however already chosen to accept the will.

Conclusion

The Doctrine of Qui Approbat non  Reprobat or the Doctrine of Approbate and Reprobate is an equity-based principle. In summary, according to this doctrine, an individual cannot approve and discard the same instrument. This principle or doctrine can be best described by the popular idiom “have one’s cake and eat it too”. Having studied its impact in the Indian as well as English Courts of law, it can be asserted that the doctrine has a firm and solid foundation in the judicial system.

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References:

[1] Swami Sadashiva Brahmendra Sar, Approbate and Reprobate lawyersclubindia (2021), Approbate and Reprobate (lawyersclubindia.com) (last visited Jul 14, 2021)

[2] Cooper v. Cooper (1874) 7 HL 53)  

[3] Beepathumma v. S.V. Kadambolithaya , AIR 1965 SC 241

[4] MPB v LGK [2020] EWHC 90 (TCC)

[5] Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd [1921] 2 K B.608

[6] Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593

[7] Benjamin Scarf vs. Alfred George Jardine [(1881-82) 7 Appeal Cases 345]

[8] Hemanta Kumari Devi v. Parasanna Kumar, AIR 1930 Cal 32

[9] Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387