- (1.) 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 enumerated in cl. (1)(f) of Art. 19 of the Constitution. But before we hear 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,1949 4 Exch 187. and other cases which follow that decision or which proceed on the same reason as that in Tinkler's case (1). Those decisons are: Banku Chandra Bose v. Marium Begum ('a); Ramendramohan Tagore v. Keshabchandra Chanda,1934 61 ILR(Cal) 433; Mani Ram v. Beharidas, 1933 AIR(All) 175; S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar & Ors., 1927 AIR(Mad) 1009; Venkatarayudu v. Chinna, 1930 AIR(Mad) 268. and Pearce v. Chaplin,1846 9 QB 802.
(3.) The two English decisions just referred to and some of the Indian decisions were considered in Venkata. rayudu v. Chinna (5). 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 reprobate" (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".;