TMI Blog2014 (11) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... fit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. The Defendants have accepted benefits under Vivien s will. Under Section 187 and 188, the Defendants have made their election; and, in any case, their right to elect and their waiver of the inquiry into the circumstances attendant to that election must now be presumed and held against them. These are specific legacies (the jewellery and the bequest of Rs.2 lakhs to their son), ones to which they had no entitlement on intestacy. Their own entitlement was under the Will itself, and only under the Will. The Defendants, by their own actions, accepted and are bound by the terms of the Will. They cannot simultaneously repudiate it. In addition, there is also the express acceptance of it under the writing Ex.P-5. An attesting witness, PW2, has deposed to it, as has the Petitioner, who identified Vivien s signature. The challenge to the will fails. Whether the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Support being filed, the petition was renumbered as Suit No. 90 of 2000. 5. On these pleadings, issues were struck on 16th September 2004. These are reproduced below, with my findings against each. Sr. No. ISSUES FINDINGS 1 Whether the Petitioner has proved that the will dated 21st August, 1997 was legally and validly executed? Yes 2 Whether Defendants Nos. 1 and 2 have caveatable interests in the estate of the deceased? Does not arise 3 Whether the Defendant Nos. 1 and 2 are entitled to oppose the grant of probate in view of their having received and accepted the bequest under the will dated 21st August, 1997? No 4 Whether the Defendants prove that the Will was executed by exercising undue influence? No 5 What order and relief? As per final order Re: Issues Nos. 1, 2 3: 6. As I see it, a finding on Issue No.3 is determinative of the entire action. For, if the Defendants are disentitled in law from opposing the grant of probate, there is no question of their sustaining the caveat they have filed, even assuming that they have a caveatable interest. In any case, Issue No.2 does not arise: not only on account of the finding on Issue No.3, but also because they obtained an order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence. At the foot of that inventory is an endorsement that the jewellery was handed over to Maria Vaz, the 2nd Defendant. That endorsement is in Mirzban s handwriting, but Maria has signed in acknowledgement of receipt of the jewellery. This is also part of the understanding recorded on the document on stamp paper, Ex. P-5 in evidence. 11. Even more vital is that the understanding or agreement Ex.P5 is counter-signed and accepted by the 1st Defendant as well. Explicitly stated in this writing is the acceptance by the 1st Defendant of the Will in question. The upshot of this is that Maria Vaz, the 2nd Defendant, accepted a legacy that came to her under the Will and could not have come to her except in that manner, i.e., it was not a legacy to which she could have succeeded on intestacy; and the 1st Defendant accepted, under his own signature, the validity of the will in question. 12. There is no effective cross-examination of the Plaintiff, Mirzban on this most vital aspect of the matter. However, Defendant No.1, Cedric Vaz (Vivien s brother) was cross-examined on it. He agrees in his answer to Q.116 of his cross-examination that it was agreed that the flat in question at Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of decisions it has been held that a person cannot take under and against the same instrument. C. Beepathumma and Ors. v V.S. Kadambolithaya and Ors., AIR 1965 SC 241 In Ramakottayya v. Viraraghavayya ILR (1928) Mad. 556; cited in C. Beepathumma, supra Coutts Trotter, CJ observed that the principle is often put in another form: a person cannot approbate and reprobate the same transaction. As the Supreme Court held in Beepathumma, the principle is: That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. 17. Faced with legacies and bequests, the Defendants have a choice. They may elect to receive those legacies and bequests, in which case they cannot assail the document under which they do so. In other words, on their acceptance of those legacies, they make an election and renounce all rights inconsistent with those legacies. On the other hand, it is, and was, always open to them to renounce the legacies and continue their challenge to the Will. But what no Defendant can do is to simultaneously accept a legacy that only accrues a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd renounce all rights that are inconsistent with it. This principle is often put in another form that a person cannot approbate and reprobate the same transaction. 40. Having elected to receive the bequests as per the Will dated 12th April, 1989 it is too late in the day for her to put different constructions to various clauses under the Will. (Emphasis supplied) 20. This is precisely the case here. The Defendants have accepted benefits under Vivien s will. Under Section 187 and 188, the Defendants have made their election; and, in any case, their right to elect and their waiver of the inquiry into the circumstances attendant to that election must now be presumed and held against them. These are specific legacies (the jewellery and the bequest of Rs.2 lakhs to their son), ones to which they had no entitlement on intestacy. Their own entitlement was under the Will itself, and only under the Will. The Defendants, by their own actions, accepted and are bound by the terms of the Will. They cannot simultaneously repudiate it. In addition, there is also the express acceptance of it under the writing Ex.P-5. 21. The will itself stands proved. An attesting witness, PW2, has deposed to it, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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