The withdrawal of the pre-emption price did not amount to an adoption of the decree and that the appellant had not taken a benefit under the decree.

Judgment

MUDHOLKAR, J. : This is an appeal by special leave and the main point involved in it is whether the Rewa State Pre-emption Act, 1949, is unconstitutional on the ground that it places an unreasonable restriction upon the right to acquire property enumberated in cl. (1) (f) of Art. 19 of the Constitution. But before we here arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of the plaintiff- respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant-appellant is precluded from proceeding with the appeal because subsequent to the grant of special leave to appeal to him he withdrew the price of pre-emption which was deposited by the respondent No. 1 in the court below. He contends- that by withdrawing the pre-emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate.

2. In support of his contention, learned counsel has relied upon the well-known case of Tinkler v. Hilder, (1849) 154 ER 1176 and other cases which follow that decision or which proceed on the same reason as that in Tinkler s case, (1849) 154 ER 1176. Those decisions are : Banku Chandra v. Marium Begum, 21 Cal WN 232:; Ramendramohan v. Keshabchandra, ILR 61 Cal 433; Mani Ram v. Beharidas, Veeraswami Pillai v. Kalyanasundaram Mudaliar, AIR 1927 Mad 1009; Venkatarayudu v. Rama Krishnayya, AIR 1930 Mad 268 and Pearce v. Chaplin, (1846) 115 ER 1483.

3. The two English decisions just referred to and some of the Indian decisions were considered in AIR 1930 Mad 268. Dealing with them Venkatasubba Rao, J., observed as follows :

"What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order ............ According to Halsbury this rule is an application of the doctrine that a person may not approbate and repro bate (13 Halsbury, para. 508)........ In other words, to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith".

4. The view taken in the other cases proceeds on similar reasoning. But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim involved in these cases. What we are called upon to decide is whether the appellant by withdrawing the pre-emption price can be said to have adopted the decree from which he had already preferred an appeal. The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all. The decree merely conferred a right upon the plaintiff-respondent No. 1 to deposit the price of pre-emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee. The act of the appellant in withdrawing the pre-emption price after it was deposited by the respondent No. 1 cannot clearly amount to an adoption by him of the decree which he had specifically challenged in his appeal.

5. Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre-emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right