Ramachandra Iyer, J.*- These petitions are filed under Article 133 of the Constitution for leave to appeal to the Supreme Court against the Judgments and decrees of this Court in A.S. Nos. 286 and 376 of 1955. The petitions are filed by the defendants to the suit, out of which, the appeals arose. That suit was one by the respondents, for a declaration of title to the properties, and for recovery of possession of the same basing their title as reversioners to the estate of their maternal uncle. The suit was valued for purposes of Court-fee and jurisdiction, in a sum of Rs. 9,650, the valuation, having been arrived at on the basis of the market value of the properties in respect of which relief was sought and the past mesne profits claimed. The respondents succeeded in the suit. The two appeals were filed to this Court by two sets of defendants - defendants 1, 3,4, 6 and 9 filed A.S. No. 286 of 1955, and defendants 2 and 8 filed A.S. No. 376 of 1955. For the purpose of the appeals, the valuation given by the respondents in their plaint was adopted by the respective appellants. By our judgment, dated 26th August, 1959, we affirmed the decree of the trial Court. The petitioners claim that the case satisfies the requirements of Article 133 of the Constitution in regard to the value of the subject-matter and the existence of a substantial question of law. The petitions are resisted by the respondents on the ground that the value of the subject-matter in dispute in the proposed appeal docs not satisfy the requirements of Article 133 of the Constitution, inasmuch as it was stated to be less than Rs. 10,000 in the plaint, the same having been accepted by opposite party while valuing the appeal. It is also denied that there is any substantial question of law involved in the appeal. We may, however, dispose of the latter objection first. In our opinion, two substantial questions of law arise in the appeal - (1) whether the impugned transaction of surrender amounts to a device to divide the estate between the widow and the reversioners; and (2) whether the respondents were precluded on the principles of estoppel or election from repudiating the surrender deed executed by their grandmother. In our opinion, two substantial questions of law arise in the appeal - (1) whether the impugned transaction of surrender amounts to a device to divide the estate between the widow and the reversioners; and (2) whether the respondents were precluded on the principles of estoppel or election from repudiating the surrender deed executed by their grandmother. The question, then, is whether the conditions laid down in Article 133 (1) (a) have been satisfied. It may be noticed that the valuation in the suit was made mainly for the purpose of determining Court-fee payable ; a higher valuation would not have affected the jurisdiction of the trial Court or altered the forum of appeal. The respondents purported to state the market value of the properties while valuing the claim ; the appellants did not raise any dispute about its correctness. Consequently, the Court was not called upon to decide any issue relating to the value of the subject-matter of the suit. But the petitioners now claim that the value mentioned in the plaint, was not the correct or real value, but that it is more than Rs. 20,000. When the petitions came up before us in the first instance, we considered it desirable to get a finding from the lower Court as to the actual market value of the properties involved in the appeal at the time of the institution of the suit and at the present moment, reserving the question whether it would be open to the petitioners to go behind the valuation adopted by them while filing the appeal. We accordingly directed the lower Court to submit a finding. The learned Subordinate Judge has submitted a finding that the value of the suit properties would be Rs. 27,586 as on the date of the suit, and that their present value would be Rs. 37,712-75 nP. Although objections were filed to the finding of the lower Court mentioned above, none was urged before us. Thus, if the value of the subject-matter in dispute is to be taken on the basis of the finding now submitted by the lower Court, the case would satisfy the provisions of Article 133 (1) (a) and (c), and the petitioners would be entitled to the leave sought. Thus, if the value of the subject-matter in dispute is to be taken on the basis of the finding now submitted by the lower Court, the case would satisfy the provisions of Article 133 (1) (a) and (c), and the petitioners would be entitled to the leave sought. But the substantial contention on behalf of the respondents is that the petitioners should not be allowed to go behind the valuation adopted by them in the appeal; the objection is sought to be justified both on principles of res judicata as well as estoppel. The former plea is rested on the footing, that the Court should be held to have impliedly decided that the value given in the plaint was correct, as otherwise it should have rejected the plaint under Order 7, rule 11, Civil Procedure Code, and the latter on the principle that a party should not be allowed to approbate and reprobate in the course of the same proceedings. The contention is supported by a recent judgment of a Bench of this Court, consisting of Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7, 8 and 9 of 1958. The learned Judges held that a party, who had adopted a particular valuation for the purpose of suit or appeal, would not be allowed to show that it was incorrect; to do so would be to permit the party to approbate and reprobate. It was also held that, even when there had been no decision by the lower Court on the question of valuation, the party would be precluded from showing the valuation to be incorrect on the principle of res judicata. This decision is in conflict with an earlier decision of a Bench of this Court in Venkatarayudu v. Venkanna1, which, however, does not appear to have been brought to the notice of the learned Judges. In the latter case, it was held that a party who had adopted a particular valuation for fiscal purposes at an earlier stage of the proceedings would not be absolutely precluded from showing that the valuation was wrong. The original valuation would be treated only as a strong piece of evidence, as an admission against him. In the latter case, it was held that a party who had adopted a particular valuation for fiscal purposes at an earlier stage of the proceedings would not be absolutely precluded from showing that the valuation was wrong. The original valuation would be treated only as a strong piece of evidence, as an admission against him. Thus, this decision does not support the view that a valuation adopted by a party to determine the forum or the Court-fee payable should be held to be binding at all later stages of the litigation on any principle of res judicata or estoppel; it treats the earlier valuation as a mere piece of evidence, though its probative value might be high. In Kristo Indro Sahu v. Huromonee Dassee2, the defendant objected to the grant of leave to appeal to the plaintiffs on the ground, that the value of the subject-matter in dispute was less than what was stated in the plaint. No objection was, however, raised as regards the valuation by the former in the trial Court. But, instead, he accepted that valuation, and filed the appeal to the High Court. The Privy Council observed that the defendant having obtained the benefit of appeal on a question of fact, to the High Court, which on the lower valuation alleged he would not have, should not be allowed to object to that valuation. In Babu Lekraj Roy v. Kanhya Singh3, the plaintiff sought to appeal to the Judicial Committee, and it was objected on the ground that he could not show that the value of the property involved was greater than what he himself assessed for the purpose of paying Court-fee ; Sir James W. Colvile, holding that a valuation made in conformity with the Stamp Law did not prevent a party from obtaining leave to appeal where the real value did not fall short of the appealable amount, observed at page 320: "The stamp duties imposed for fiscal purposes are calculated on a certain rule, fixed by law, but the right to appeal depends on the value, which is a matter of fact." The observations extracted above would appear to relate only to cases where the valuation was adopted on some notional basis prescribed by a statute for the levy of Court-fee. Yet another way in which the apparent conflict between the two decisions of the Privy Council is attempted to be reconciled is that in the former case an attempt to reduce the value adopted was discountenanced, while in the latter case, the party was allowed to show that the real value was higher than the value adopted for Court-fee purposes, vide: Basanta Kumar Roy v. Secretary of State for India’1 . In Alagappa Chettiar v. Nachiappan5, the plaintiff, who valued the suit in the Court of the first instance in a sum below Rs. 10,000 attempted to show that the value was higher than that amount when he applied for leave to appeal to the Privy Council. While holding that he could not do so, Oldfield, J. observed at page 734: " There is nothing as to the details, by which he now proposes to arrive at the higher figure he contends for. There should in my opinion be much stronger reason for allowing before a fresh enquiry into a matter on which the petitioner has already put forward his estimate can be allowed at this stage. " The observations referred to above would seem to indicate that the learned Judges viewed the case as one to be decided on the evidence and not as a question of law-The evidence regarding the market value was clear, consisting as it did of the plaintiffs’ own statement. In Rattayya v. Brahmayya1, the plaintiff had given the value of the suit properties as Rs. 10,000. The defendant, who filed an appeal against the decree of the trial Court, accepted the valuation. His appeal failed: he applied for leave to appeal to the Privy Council. The plaintiff who resisted the application, attempted to show that the valuation of Rs. 10,000 originally given by him was wrong. It was held that he could not do so. Ramesam and Venkatasubba Rao, JJ., who decided that case, had to consider the matter again in two later cases. In Venkatarayudu v. Venkanna2, the learned Judges laid down that a plaintiff would not be absolutely precluded from contending that the valuation in the plaint was wrong, but that the Court would merely treat his admission as a strong piece of evidence against him. In Venkatarayudu v. Venkanna2, the learned Judges laid down that a plaintiff would not be absolutely precluded from contending that the valuation in the plaint was wrong, but that the Court would merely treat his admission as a strong piece of evidence against him. In Sri Rajah Vasi Reddi v. The Secretary of State for India in Council3, they held that it would be ordinarily sufficient for the competency of an appeal to the Privy Council, if the value of the suit according to the plaint was above the appealable value, and that it could be presumed that it represented the minimum market value, and such presumption would become strong, if the valuation had been adopted by the defendant for the purpose of choosing the forum of his appeal. Venkatasubba Rao, J., observed that the defendant would not be precluded, as a matter of law, from showing that the real value was different from the Court-fee value. In Satish Chandra v. Kumar Birendra4, it was held that the mere fact that a low valuation was put on the plaint for the purpose of Court-fee and jurisdiction, should not be allowed to operate as an estoppel against the plaintiff on the question of value, if a question arises as to valuation for an appeal to the Privy Council, and that, the Court would be entitled to go into the real value of the properties. In that case, the plaintiff was allowed to show that the valuation adopted for the purpose of Court-fee was lower than the real value. Rankin, C.J., delivering the judgment, reserved the question whether the position would be different, if the correct valuation would have meant that the trial Court would have no jurisdiction to entertain the suit. This question was answered in Mahendranarayan v. Janakinath6 . It was held that where a suit was valued upon some basis other than the real and market value, the doctrine of approbate and reprobate could not apply. But where the value given was the market value, a party, who sued in or appealed to a Court which would have no jurisdiction if the value of the property exceeded Rs. 10,000 would debar himself from claiming at a later stage to have the value of the subject-matter of the suit in the Court of the first instance treated for purposes of an appeal as exceeding that amount. 10,000 would debar himself from claiming at a later stage to have the value of the subject-matter of the suit in the Court of the first instance treated for purposes of an appeal as exceeding that amount. It was considered that there was an advantage gained by the party adopting the valuation. The principle of approbate and reprobate was held to apply to such a case. In Radhika Math v. Midnapore Zamindari Co.6, the plaintiff erroneously undervalued the subject-matter of the suit in the trial Court. The valuation did not affect the opposite party in that there would be no change in the forum of appeal. It was held that a mere mistake as to the value in the plaint could not estop the applicant from showing that the real value of the subject-matter in the Court of the first instance was more than Rs. 10,000. In this case, it could not be said that the defendant suffered any disadvantage by the valuation. In Prabirendra Mohan v. Berhampore Bank Ltd.7, the valuation of the suit by the plaintiff was not objected to by the defendant in the trial Court ; it was adopted by him for the purpose of his own appeal. It was held that he should not be allowed to turn round and say that the valuation was higher for the purpose of securing leave to appeal to the Supreme Court against the decree of the High Court. The principle of prohibiting a party from approbating and reprobating was relied on. The learned Judges did not consider the decision in Radhika Math Biswas v. Midnapore Zamindari Co1 . In Annapurna Cotton Mills v. S. Bahaduri2, it was held that except where some advantage had been obtained by the person who had made or adopted a lower valuation, the doctrine of approbate and reprobate would have no application, and that the person who had made the lower valuation could always show what the correct valuation would be. It was held the correct test to be applied was to see whether a party seeking to vary the earlier valuation for the purpose of appeal to the Supreme Court had obtained an advantage on the basis of the previous valuation which was then claimed erroneous, and where he had gained such advantage, he would be precluded by the principle of approbate and reprobate from showing the real valuation. The decision in Prabirendra Mohan v. Berhampore Bank3 was however not considered. Where the value adopted by a party was on some notional standard fixed by a fiscal statute, it cannot be disputed that there would be no impediment in his being allowed to show that the real value for the purpose of an appeal to the Supreme Court, is different. In other cases, namely, those in which the market value of the properties had been adopted, whether it be for fiscal or other purposes there has been divergence of opinion among the learned Judges. One view is that a party who had adopted a particular value as the market value cannot be allowed to contend that the value is lower than what he gave. But whether there is a prohibition in his being allowed to show that the real value is higher depends on the question whether any rule of res judicata or estoppel would apply. The question will have to be considered in its twin aspects, viz.: Whether the plaintiff could be allowed to show that the actual value of the property was higher than what he stated in the plaint ? Would a defendant be bound by it, if he had accepted the same for the purpose of any appeal? Where the question about the market value was the subject-matter of an express decision by the lower Court, it may be that it would be held to be binding on the principle of res judicata. But, where there has been no such decision the question would arise whether the rule of constructive res judicata would apply ; particularly in a case where the value was given only for the purpose of Court-fee etc. The learned counsel for the respondents urges that, as the payment of proper Court-fee is essential for maintainability of the suit, the defendant should be one who is interested in the valuation of the plaint, and if no objection had been taken he should be deemed to have accepted the valuation, and the Court should be deemed to have decided that the valuation was correct. Again, the question whether any principle of estoppel would apply and if so within what limits will have to be decided, regard being had to the fact that a right of appeal to the Supreme Court is given by the Constitution in all cases where the case satisfied the requirements set out in Article 133. The question may arise in a number of forms e.g., (i) whether any party to a case can show for the purpose of Article 133 (1) (a) of the Constitution, that the value of the subject-matter on the relevant dates is different from that stated for Court-fee or jurisdictional purpose in the plaint or memorandum of appeal, (ii) whether there is any difference between cases where the form of suit or appeal is affected by such valuation, (iii) whether there is any difference between the plaintiff and the defendant for the purpose, and (iv) the extent to which the principle of approbate and reprobate should be applied to decide the question of valuation under Article 133 of the Constitution. We consider that, having regard to the importance of the matter and the conflict of judicial decisions referred to above, the matter should be decided by a Full Bench. We accordingly refer the following question for the opinion of a Full Bench:- "Whether, for ascertaining the value of the subject-matter in dispute for purposes of Article 133 of the Constitution and section 110, Civil Procedure Code, in the Court of first instance or the proposed appeal, it would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal, as the case may be, and show the real value thereof. " In pursuance of the above Order of reference the petitions came on for hearing before a Full Bench (Rajagopalan, Ramachandra Iyer and Srinivasan, JJ.). The opinion of the Full Bench was expressed by Ramachandra Iyer, J.†- This reference arises out of petitions filed under Article 133 of the Constitution for grant of leave to appeal to the Supreme Court against the decree and judgment of this Court in A.S. Nos. 286 and 376 of 1955. The judgment of this Court affirmed that of the trial Court. It has been found that the appeal involves the determination of a substantial question of law. 286 and 376 of 1955. The judgment of this Court affirmed that of the trial Court. It has been found that the appeal involves the determination of a substantial question of law. All that remains to be ascertained is whether the subject-matter of dispute in the Court of the first instance and still in dispute in the appeal was and continues to be not less than Rs. 20,000. The suit, out of which the appeal arises, was valued by respondents 1 and 2 who were the plaintiffs at Rs. 9,650. They succeeded in the Court of the first instance. When the petitioners, (defendants in the suit) filed appeals to this Court, they adopted that value, as indeed they were bound to do, for the purpose of payment of the necessary Court-fee for the appeals. Petitioners now state that the aforesaid value, as estimated by respondents 1 and 2 and even as adopted by them, was erroneous, and that the real value of the properties was and continued at all material times to be more than Rs. 20,000. It is contended that the petitioners should not be allowed to go behind the value adopted by them in the appeals and show what the real value is. Different views have been expressed on the question whether the petitioners could be permitted to do so. In Venkatarayudu v. Venkanna1, Ramesam and Venkatasubba Rao, JJ., held that a plantiff who adopted a particular value in regard to the subject-matter of a suit in the plaint would not be absolutely precluded from showing the real value when a question arose in connection with his right of appeal to the Privy Council. A different view was taken recently by Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7 and 8 of 1959. In view of this conflict, the following question has been referred to the Full Bench for opinion. A different view was taken recently by Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7 and 8 of 1959. In view of this conflict, the following question has been referred to the Full Bench for opinion. "Whether for ascertaining the value of the subject-matter in dispute for the purpose of Article 133 of the Constitution and section 110, Civil Procedure Code in the Court of the first instance or in the proposed appeal it would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal as the case may be and show the real value thereof." The question has primarily to be considered in the light of Article 133 of the Constitution and section no, Civil Procedure Code. Those provisions confer a right on a party to appeal to the Supreme Court against a judgment, decree or final order in a civil proceeding of a High Court if it certifies that the case satisfies the conditions laid down therein. One of the conditions so laid down for cases coming under clauses (a) and (b) of Article 133 is that the value of the subject-matter in the suit and in the proposed appeal should not be less than Rs. 20,000. Thus the right of appeal is a constitutional right in the cases specified ; it cannot be prima facie impaired or affected by an erroneous statement as to the value of the subject-matter by a party, whether such statement is made deliberately or otherwise. The question whether in a particular case the value of the relevant subject-matter is such as entitles a party to appeal to the Supreme Court is one of fact to be decided by the Court when it arises. The determination of such a question will be governed by the ordinary procedure of the Court deciding, and rules of procedure and evidence like res judicata, probative value of admissions, estoppel, etc., would apply. It is at that stage the question would arise whether a party who wishes to appeal to the Supreme Court could be allowed to plead and prove a fact contrary to his statement as to the value of the subject-matter at an earlier stage. It is at that stage the question would arise whether a party who wishes to appeal to the Supreme Court could be allowed to plead and prove a fact contrary to his statement as to the value of the subject-matter at an earlier stage. In other words, the constitutional or statutory right of appeal cannot be curtailed by an erroneous statement as to valuation by the party seeking a certificate, but when the question of value of the subject matter has to be ascertained, the rules of procedure and evidence might, in certain cases, debar him from pleading and proving the true value thereof. Where a party who seeks a certificate under Article 133 (a) or (b) or one who opposes the grant of such certificate wants to allege that the value given or adopted by him at an earlier stage of the litigation is not the true or real value, he would undoubtedly be taking an inconsistent position. It is undesirable that a party should be allowed to take up inconsistent positions in a Court of law. That rule is a rule of prudence and in its application has its limitations. An erroneous statement as to value made at an earlier stage cannot deprive a party of a right; it will only prevent a party from proving the real value in certain circumstances. Before considering the circumstances under which a party would be held precluded from going behind his own earlier statement of the value, it is necessary to consider the relevant statutory provision which obliges him to give the value. Order 7, rule 1, Civil Procedure Code prescribes the particulars to be contained in a plaint. Clause (1) thereof requires that the plaint should contain “a statement of value of the subject-matter of the suit for the purpose of jurisdiction and of Courtfee so far as the case admits”. In the case of appeal, Order 41, rule 1 (2) (Madras Amendment) prescribes only the statement of values for purposes of Court-fee. The Suits Valuation Act which governs the value of the suit for jurisdictional purposes provides for a notional or artificial valuation in certain types of cases and for the real or market value in others. In the case of appeal, Order 41, rule 1 (2) (Madras Amendment) prescribes only the statement of values for purposes of Court-fee. The Suits Valuation Act which governs the value of the suit for jurisdictional purposes provides for a notional or artificial valuation in certain types of cases and for the real or market value in others. The first type of cases presents no difficulty, and it is now well settled that it would be open to any party to show what the real value of the property is when a question arises under section 110, Civil Procedure Code (vide Baboo Lakraj v. Kunhya Singh1 ). In the latter class of cases, where a plaintiff is obliged to give the real value, there is no doubt that the defendant would be entitled to contest the value. Whether the latter is bound to do so, and if so, in what cases we shall presently consider. The value for purposes of Court-fee has to be made in certain cases according, to the market value. The defendant can object to the valuation given in the plaint but his objection would be limited to raising the question in the trial Court alone. In case his objections are overruled, he cannot even challenge the correctness of the order under section 115, Civil Procedure Code. Vide Secretary of State for India v. Raghunatha2 . Section 12 of Act VII of 1870 provides that in case of dispute the decision of the trial Court as to valuation for the purpose of Court-fee would be final between the parties to the suit, and except in a limited class of cases covered by subsection (2) and when the question had been wrongly decided to the detriment of revenue the appellate Court would have no power to determine the correct amount of Court-fee payable. There is a similar provision in the Madras Court-fees Act of 1955. A valuation simpliciter for Court-fees purposes given by the opposite party or even adopted by the defendant in the appeal cannot, on principle be held to preclude him from showing the real value. The question then arises whether in regard to jurisdictional value the defendant is bound to object to an incorrect valuation made by the plaintiff. A valuation simpliciter for Court-fees purposes given by the opposite party or even adopted by the defendant in the appeal cannot, on principle be held to preclude him from showing the real value. The question then arises whether in regard to jurisdictional value the defendant is bound to object to an incorrect valuation made by the plaintiff. Order 8, rule 2: Civil Procedure Code which refers to the matters which a defendant should raise in his pleading, states that he should raise all matters which show the suit not to be maintainable. Payment of insufficient Court-fee would render the suit not maintainable ; but that plea has only a limited scope for adjudication. Again, if the real value of the subject-matter of the suit was such that the Court entertaining the suit would have no jurisdiction, it would be his duty to plead that the value given in the plaint was wrong. It would follow that, even though the valuation given in the plaint was erroneous there would be no duty on the defendant to raise a plea as to the real value, if even, by adopting the real value the jurisdiction of that Court will not be affected. Order 8, rule 2, refers only to a plea relating to the. maintainability of the suit and not one for safeguarding a right of appeal in the possible event of the defendant failing. Thus questions of Court-fee apart, where the determination of the real value of the subject-matter of the suit would not involve a change of forum of the suit, the defendant would be under no obligation to raise objections to valuation, though he would have an option to do so. On behalf of the respondents, it is contended that a defendant is in all events bound to challenge an incorrect valuation of the plaint, and if he fails to do so, that value should be deemed to have been accepted by the Court and on principles analogous to res judicata. Mr. T.M. Krishnaswami Iyer pursued that argument and submitted that a right of appeal to the Supreme Court would depend on the valuation given in the plaint and a defendant is bound to anticipate or envisage the possibility of his failing in the High Court and safeguard his further right to appeal. Mr. T.M. Krishnaswami Iyer pursued that argument and submitted that a right of appeal to the Supreme Court would depend on the valuation given in the plaint and a defendant is bound to anticipate or envisage the possibility of his failing in the High Court and safeguard his further right to appeal. As we understand it, the argument is not to the effect that the defendant was under an obligation to obtain an adjudication as to the real value of the property, but rather to see that the Court holds that the value is above Rs. 20,000 it being unnecessary to determine the precise value about it. Neither of the two aspects of the argument is correct. A right to appeal to the Supreme Court does not depend on the valuation adopted in the plaint but on the value of the subject-matter of the suit. It is true that the institution of a suit carries with it the implication, that the right to appeal then existing would be preserved to the litigant except where the Legislature altered it; but that does not mean that by a wrong valuation a party can either confer on himself a right of appeal or deprive his opponent of such a right. Order 8, rule 2, Civil Procedure Code, only obliges the defendant to raise all questions to show that the suit is not maintainable; neither that provision nor any principle of law casts an obligation on a defendant to raise pleas as to valuation in the trial Court itself to safeguard a right of appeal to the Supreme Court in the contingency of his failure in the High Court. There is thus no obligation on the defendant to raise any question as to the correctness of the plaintiff’s valuation except in cases where the jurisdiction of the Court would be ousted if the correct value were given. The principle of constructive res judicata cannot apply to cases where there was no duty on the defendant to contest the value by the plaintiff. The principle of constructive res judicata cannot apply to cases where there was no duty on the defendant to contest the value by the plaintiff. Yet another ground has been advanced for the application of the rule of constructive res judicata namely, where a plaintiff gives a lower valuation, the defendant’s rights would be affected in that if the suit were dismissed, the latter would be deprived of the costs appropriate to the real value ; in order to secure the full costs that he might be entitled to, it would be necessary for the defendant to plead that the value given by the plaintiff is less than the real value, and if he omits to do so, the Court, in awarding costs on the basis of the plaint value, should be deemed to have impliedly overruled a plea that the value was higher, as it has deprived him of the legitimate costs on the basis of a correct value. Support was sought for the argument from the decision in Brajasunder Deb v. Rajendra Narayan1 . In that case the claim in the trial Court was valued at less than Rs. 10,000. That valuation was adopted in the High Court. During the pendency of the appeal in the High Court, the valuation was increased without objection by the defendant. In the appeal, costs were awarded to the defendant, the successful party, on the basis, of the revised valuation. When the plaintiff wanted to appeal to the Privy Council on the basis of the revised valuation, the defendant pleaded that the new valuation should not be accepted. The learned Judges rejected his contention on the ground that the revised valuation was accepted by the defendant, and he could not go back upon such acceptance. While dealing with that question the learned Judges stated:- “As the present valuation of the suit was accepted without demur and a decree for costs based on such valuation actually enforced, it is not, in my view, open to the proposed respondent to contend at this stage that the value of the suit is not over Rs. 10,000.” In our opinion, the foregoing observations do not support any theory of res judicata on the basis of an adjudication regarding costs. The execution of the decree for costs was merely referred to as a circumstance showing the acceptance of the revised valuation by the defendant in that case. 10,000.” In our opinion, the foregoing observations do not support any theory of res judicata on the basis of an adjudication regarding costs. The execution of the decree for costs was merely referred to as a circumstance showing the acceptance of the revised valuation by the defendant in that case. The arguments as advanced before us mixed up two different aspects, namely, a right to costs which would be a matter for judicial adjudication and taxation of costs which will vary with the value of the claim. Further, what a party can get by way of costs will be costs incurred. If the valuation is low, the party will (theoretically at least) incur a lesser sum as costs: he could get a higher amount taxed only if he incurs more, and it cannot be said that there is a right in a party to incur higher costs in order that he might recover it from the opposite party in the event of ultimate success. Reliance was then placed on the observations contained in the judgments of Basheer Ahmed Sayeed and Subrahmanyam, JJ., in S.C.P. Nos. 7 and 8 of 1958 to the effect that where the defendant did not take any objection in his written statement to the market value as stated in the plaint it would not therefore be open to reconsideration in subsequent stages of the same litigation. In the view of the learned Judges the rule rests on the finality of an express or implied decision of a Court and not on any theory of approbate and reprobate. We are unable, with great respect to the learned Judges, to see how there can be any finality, apart from the principles of res judicata. Where, therefore, there is no duty on the part of a defendant, an omission to raise a plea as to valuation cannot attract the rule of res judicata, constructive or otherwise. In our opinion, except in cases where there has been an adjudication (express or implied) as to the value of the subject-matter of a suit in such a way as to constitute res judicata a mere omission on the part of the defendant to object to the valuation made in the plaint cannot bring in its wake any theory of implied adjudication, and thereby preclude him from showing at a later stage that the real value of the property was different. The same rule would apply to the case of the plaintiff as well. The question then is, whether a party giving or adopting a particular value at an earlier stage of suit or appeal could be said to be estopped from showing its real value when his right to obtain a certificate under Article 133 has to be determined. A mere erroneous valuation either for jurisdictional or fiscal purposes without more (except in cases where the adoption of the real value could alter the forum) cannot amount to a representation on which it can be said that the opposite party would suffer a detriment. Mr. T.M. Krishnaswami Iyer conceded that to such a case section 115 of the Indian Evidence Act would not apply. But learned counsel relied on the familiar principle that a person who made a representation on the faith of which another had acted should not afterwards be allowed to contradict the former statement in order to profit by the conduct which he had induced, and contended that when the defendant in the instant case took advantage of filing an appeal to this Court at a lower valuation by paying a lower Court-fee, he should be held to have secured an advantage, and it would not therefore, be open to him to change his position and say that the value of the subject-matter was higher. The contention is based on the familiar rule that a party to a litigation cannot both approbate and reprobate, the scope of which rule we will consider in a little detail presently. That, as has been stated, is a rule essentially of logic rather than of law, based on the principle that, where a party to a litigation has deliberately taken a particular position (without being induced so to take it by the opposite party) he must act consistently with it. That principle cannot apply to the person misled. Therefore if a person is induced to take up a position by a mistake induced by the other party, he cannot be pinned down to that position and prevented from pleading the truth. The rule that a party cannot both approbate and reprobate, though a species of the law of estoppel, is different from it. Therefore if a person is induced to take up a position by a mistake induced by the other party, he cannot be pinned down to that position and prevented from pleading the truth. The rule that a party cannot both approbate and reprobate, though a species of the law of estoppel, is different from it. In the case of an estoppel, the representee should have altered his position to his detriment: for the rule of approbate and reprobate to apply, the representor must have obtained an advantage by the representation made or the stand taken by him. As we shall show, the rule in it origin was confined to cases of legatees and donees under wills and gifts who were precluded from accepting a benefit under the document and repudiating the same so far as it was disadvantageous to them. In Verchures Creameries Ltd. v. Hull and Netherlands Steamship Co., Ltd.1, Scrutton, L.J., observed at page 611: "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. Wavchope2, Douglas Menzies v. Umphelby3 . 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." This rule was subject of a more detailed examination in Lissmenden v. C.A.V. Bosch Ltd,4 where the House of Lords referred to and defined the origin, scope and operation of it. In the course of his speech, Viscount Maugham observed that the phrase was of Scottish origin and was no more than a picturesque synonym for the ancient equitable English doctrine of election which was distinct from the common law principles of election of remedies and one confined in its application to wills, deeds and other instruments inter vivos. In the course of his speech, Viscount Maugham observed that the phrase was of Scottish origin and was no more than a picturesque synonym for the ancient equitable English doctrine of election which was distinct from the common law principles of election of remedies and one confined in its application to wills, deeds and other instruments inter vivos. The principle was stated to be one of the presumed intention of the testator or the author of the instrument, namely, that legatee or beneficiary should not claim under the will or instrument and also adversely to it. It is essential, therefore, for the application of the rule that no person should fee taken as having made an election until he had an opportunity of ascertaining his rights and was aware of the nature and extent, election being based on knowledge. Lord Atkin, referring to the subject of approbate and reprobate, observed at page 429: "In this country I do not think it expresses any formal legal concepts. I regard it as a descriptive phrase equivalent to " blowing hot and cold." I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election whether at common law or in equity. In cases where the doctrine does apply the person conceded has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other " In Broom’s Legal Maxims, 10th Edition, while discussing the maxim Allegans contraria non est audiendus (He is not to be heard who alleges things contradictory to each other) it is stated at page 103: "We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to blow hot and cold with reference to the same transaction or insist at different times on the truth of each of two conflicting allegations according to the promptings of his private interest. " The principle variously known as approbate and reprobate, blowing hot and cold or as the equitable principle of election, was referred to by the Supreme Court in Nagu Bai v. Shyama Rao5, where it was observed that the maxim that a person cannot approbate and reprobate was only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The rule in its operation might enable a party to shut out truth from a Court of justice. It is, therefore, necessary to define its limits with precision. A mere erroneous statement at one stage of a litigation cannot without more be held to prejudice a statutory or other right of a party. While, therefore, it is necessary that there should be some rule to prevent a party playing fast and loose with a Court, there should be limitations placed on it conformably to the origin and principle of the rule. The rules as to election as stated in Halsbury’s Laws of England, Volume 15, Simonds Edition in paragraph 340 at page 171 is: "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. The principle that a person may not approbate and reprobate expresses two propositions, first, that the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile, and second that he will not be regarded in general at any rate as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has pursued and with which his subsequent conduct is inconsistent." The two essential elements of an election thus are (1) that the person who is electing should have a choice between two alternative courses and (2) he should derive an advantage by such choice. A plaintiff who makes an erroneous statement of value of the subject-matter, has certainly the choice between telling the truth and untruth, but where an erroneous statement is not made with the object of securing an advantage, e.g., having a forum of his choice, the principle cannot apply. A plaintiff who makes an erroneous statement of value of the subject-matter, has certainly the choice between telling the truth and untruth, but where an erroneous statement is not made with the object of securing an advantage, e.g., having a forum of his choice, the principle cannot apply. A defendant adopting the valuation made by the plaintiff for the purpose of filing an appeal (without more) could not be said to have a choice in the matter as he is generally bound to adopt the valuation made by the opposite party. It is difficult to accept the contention of the learned counsel for the respondent that a defendant should anticipate his losing the case in the trial Court and obtain from the Court an adjudication as to the proper valuation to enable him to file an appeal to a Court of his own choice. Secondly, the rule will not apply where there would be no change in the forum of appeal whether the original valuation was adopted or the higher valuation is put, for ex concessi there would be neither an advantage gained nor a detriment suffered by any party. In Banque Des Merchands De Moscow v. Kindersley1, Evershed, Master of Rolls observed at page 119 "The phrases "approbating and reprobating" or "blowing hot and blowing cold" are expressive and useful but if they are used to signify a valid answer to a claim or allegation they must be defined. Otherwise the claim or allegation would be liable to be rejected on the mere ground that the conduct of the party making it was regarded by the Court as unmeritorious. From the authorities cited to us it seems to me to be clear that these phrases must be taken to express first that the party in question is to be treated as having made an election from which he cannot resile and second that he will not be regarded at least in a case such as the present as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent. " less than Rs. 10,000 sought unsuccessfully to contend that the value was higher when he filed an application for leave to appeal to the Privy Council. " less than Rs. 10,000 sought unsuccessfully to contend that the value was higher when he filed an application for leave to appeal to the Privy Council. Although there are certain passages in the judgment showing that the plaintiff had no right to repudiate the valuation once given, it cannot be held that the learned Judge intended to lay down any different rule as the case appears to have been decided on a question of fact. This is plain from the following observations of Oldfield, J., at page 734: “There is nothing, it is to be noticed, to explain how the petitioner came to adopt the market value of the property, on which his valuation had to be made, at a figure in the aggregate of Rs. 2,800. There is nothing as to the details, by which he now proposes to arrive at the higher figure he contends for. There should in my opinion be much stronger reason for allowing before a fresh enquiry into a matter on which the petitioner has already put forward his estimate can be allowed at this stage.” In Venkatarayudu v. Venkanna1, the plaintiff who wanted to file an appeal to the Privy Council attempted to show that the value of the subject-matter in appeal was beyond Rs. 10,000. The valuation given in the plaint in regard to the items which formed the subject-matter of the appeal was less than Rs. 10,000. The learned Judges held that the plaintiff was not absolutely precluded from saying that the valuation in the plaint was wrong. They observed: “The question arises, is the plaintiff bound by this valuation? Two views are possible. The first view is that the plaintiff is absolutely precluded from contending that his valuation in the plaint is wrong; secondly, that the Court will merely treat his admission as a strong piece of evidence against him. We think that the second is the correct view.” In making those observations, the learned Judges held that the decision in Kristo Indro Sahu v. Huromonee Dassee2, was a case where the defendant had taken advantage and benefitted by the plaintiff’s valuation but when it suited him contended that the original valuation was incorrect. We think that the second is the correct view.” In making those observations, the learned Judges held that the decision in Kristo Indro Sahu v. Huromonee Dassee2, was a case where the defendant had taken advantage and benefitted by the plaintiff’s valuation but when it suited him contended that the original valuation was incorrect. The case where a defendant could be said to derive an advantage by reason of an incorrect valuation by the plaintiff, is illustrated by the two decisions of the Calcutta High Court in Rameshwar v. Siddeshwar3and in Mahendranarayan v. Janakinath4 . In both the cases the plaintiffs valued the suit so as to come within the jurisdiction of a District Munsif’s Court. The defendant accepted the valuation and filed an appeal against the decision in the District Court and a Second Appeal was thereafter taken by the plaintiff who succeeded in the High Court. With a view to appeal to the Privy Council, the defendant attempted to prove at a later stage that real value of the property was different from the one made by the plaintiff. It was held that he could not do so, as he obtained an advantage by adopting the lower valuation in that he was enabled to appeal to the District Court. The true principle, if we may say so with respect, was laid down in Radhika Nath v. Midnapore Zamindari Co.5, where the plaintiff valued the suit at less than Rs. 10,000 and filed it in the Sub-Court. The suit was decreed and the defendant in filing the appeal to the High Court adopted the plaint valuation. He succeeded in the High Court. The plaintiffs applied for leave to appeal to the Privy Council stating that the real value of the property was more than Rs. 10,000. That was a case where no change of forum of the appeal was involved, even if the real value had been adopted by the plaintiff in the first instance. He succeeded in the High Court. The plaintiffs applied for leave to appeal to the Privy Council stating that the real value of the property was more than Rs. 10,000. That was a case where no change of forum of the appeal was involved, even if the real value had been adopted by the plaintiff in the first instance. The learned Judges observed at page 296: “On the other hand the trend of authorities is to the effect that whether by way of estoppel or res judicata the Courts have considered whether the question of valuation has been raised and decided at an earlier stage and also whether the opposite party has been led to act upon such valuation, as for instance by way of Second Appeal; or to put it in another way whether the party seeking to vary the valuation for the purpose of appeal to England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the case, a party should not be shut out from his right to appeal, to England merely because of an erroneous valuation in the plaint.” This view was affirmed in Annapurua Cotton Mills v. Bahaduri6, where the learned Judges held that except in cases where some advantage had been obtained by the person who had made or adopted a lower valuation on the basis of such lower valuation as against the opposite party, the doctrine that a person cannot approbate and reprobate had no application and that even the person who had made the lower valuation would not be precluded from showing the real value. In our opinion, principle and authority alike support the view taken by Ramesam and Venkata-subba Rao, JJ., in Venkatarayudu v. Venkanna1 . It would follow that the observations of Basheer Ahmed Sayeed, and Subrahmanyam, JJ. in S.C.P. Nos. 7 and 8 of 1958, cannot be accepted as a correct statement of the law. In that case a specific issue as to the correctness of the valuation was raised and given up. It would follow that the observations of Basheer Ahmed Sayeed, and Subrahmanyam, JJ. in S.C.P. Nos. 7 and 8 of 1958, cannot be accepted as a correct statement of the law. In that case a specific issue as to the correctness of the valuation was raised and given up. The judgment of the learned Judges can perhaps be supported on the principle of res judicata but we cannot agree with the view that independent of any rule analogous to res judicata an erroneous valuation by a plaintiff, if acquiesced in by the defendant, would preclude the latter from showing the real value of the subject-matter at a later stage. Nor can we agree that the rule of approbate and reprobate will in no circumstances apply to such cases. In our opinion, that rule would apply to cases where the two conditions as to its applicability are satisfied: where they are not satisfied, a mere erroneous valuation of the subject-matter of the suit by a party at one stage of the suit or appeal will not preclude him when the question arises for the issue of a certificate under Article 133 of the Constitution. We answer the question referred to us in the following manner. It would be open to any party, be he the plaintiff or defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal, as the case may be, and show the real value of the subject-matter in dispute except where (1) there has been a judicial adjudication of the correctness of the original valuation in such a way as to attract the principle or the rule of res judicata or (2) where the party making the original valuation or the one adopting it had an option to give that value or the correct value and while exercising the option by giving one of such values he gained for himself an advantage or made the opposite party suffer a detriment. The petitions coming on for hearing before the Division Bench (Rajagopalan and Ramachandra Iyer, JJ.) after the expression of the opinion of the Full Bench: The Order of the Court was pronounced by Ramachandra Iyer J: †- We have already held that the case raises substantial questions of law. The petitions coming on for hearing before the Division Bench (Rajagopalan and Ramachandra Iyer, JJ.) after the expression of the opinion of the Full Bench: The Order of the Court was pronounced by Ramachandra Iyer J: †- We have already held that the case raises substantial questions of law. The valuation of the subject-matter of the suit as well as the value of the proposed appeal has been found by the learned Subordinate Judge to be above Rs. 20,000. We accepted that valuation as representing the value on the date of the plaint as well as the subject-matter of the proposed appeal. The only question that was left outstanding was whether it was open to the defendants to go behind the valuation adopted by them in the appeal before this Court. On that question the Full Bench has answered the question in the affirmative. The petitioners will therefore be entitled to a certificate under Article 133 (1) (a) and the appeal involves a substantial question of law. The consolidation sought for will be allowed except in regard to the payment of Court-fee. P.R.N. --------------- Petitions allowed. Leave to appeal granted.