JUDGMENT T. Chandrasekhara Menon, J. 1. Defendants 1 to 8 have filed this appeal from the Judgment and decree in O.S. No. 170 of 1972 in the Munsiff's Court, Karunagappally for partition and mesne profits for a period of three years prior to the suit in the estate left by one Noohu Kannu. Noohu Kannu died in 1962. The 1st plaintiff had claimed to be one of the widows of the said Noohu Kannu and the 2nd plaintiff is the daughter born to Noohu Kannu by the 1st plaintiff. The 1st plaintiff claimed 1/16th share and the 2nd plaintiff 7/120th share. 2. The suit was contested by the defendants. The 1st defendant is the 1st wife of deceased Noohu Kannu and defendants 2 to 8 are the sons by the 1st defendant. They contended that the 1st plaintiff is not the legally wedded wife of the deceased Noohu Kanuu and the 2nd plaintiff born in that unlawful wedlock is disentitled to inherit the estate left by Noohu Kannu. They further contended that the 1st plaintiff was not the wife of Noohu Kannu at the time of his death. Another contention raised was that the 2nd plaintiff agreed to the terms of the deed of gift dated 29th June 1960 executed by Noohu Kannu and the gift accepted by the 2nd plaintiff in lieu of her share in the other properties of her father which would debar her from claiming any share in the estate subsequently. A question of estoppel on the deed was said to arise. The defendants' contentions were overruled and the suit was decreed. 3. The Trial Court passed a preliminary decree for partition on the following terms: (1) The plaintiffs were allowed to get partitioned 29/240 share of the plaint schedule properties (excluding 50 cents in item 6) with metes and bounds. (2) The plaintiffs were allowed to realise 29/240 share of Rs. 300 (the profits derivable from the plaint schedule properties) for a period of 3 years till recovery of possession whichever is earlier. (3) Actual division is left open to be decided in the final decree. The parties were at liberty to apply for the issue of a commission to effect division and other allied matters. (4) The parties were directed to suffer their respective costs. This decree was confirmed in appeal by the District Court of Quilon in A.S. No. 138 of 1973. The parties were at liberty to apply for the issue of a commission to effect division and other allied matters. (4) The parties were directed to suffer their respective costs. This decree was confirmed in appeal by the District Court of Quilon in A.S. No. 138 of 1973. In confirming the decree the court below said that to work out estoppel as defined in S.115 of the Evidence Act, there must have been a declaration, act or omission by the 2nd plaintiff intentionally leading her father to believe that after acceptance of the gift she will not be claiming a share in the properties of her father after his death. The court said that there was nothing to show that before making the gift Noohu Kannu mentioned to his daughter that he will make the gift only if she was prepared to give up her rights of future inheritance. There is no recital in the document that he made such a stipulation and that the donee had accepted the same. It is also not stated in the deed that the gift was made subject to this condition. In the earlier part of the document a gift was unconditionally made. Subsequent part on which reliance is placed by the defendants, according to the learned District Judge, is more in the nature of a pious wish entered after the operative portion of the document. This recital states: Malayalam xxx" The court said that as the document does not impose the provision as a condition for the making of the gift the donee is not placed in such a position where she should have refused to accept the gift or run the risk of her losing her future right of succession. The learned District Judge further said that no rulings were sited before him which would go to show that the mere acceptance of a gift under the circumstances will work out an estoppel against the donee for claiming her future legitimate share in the properties of her father. 4. In this second appeal, the appellants defendants contend that the 2nd plaintiff is barred from claiming any share in the estate left by Noohu Kannu as she had accepted he gift under Ext. A1 on the basis that she will not claim any share in the estate of Noohu Kannu. 4. In this second appeal, the appellants defendants contend that the 2nd plaintiff is barred from claiming any share in the estate left by Noohu Kannu as she had accepted he gift under Ext. A1 on the basis that she will not claim any share in the estate of Noohu Kannu. Though this contention was raised originally in the appeal memo, on the basis of estoppel under S.115 of the Evidence Act, in an application to urge the additional ground in the appeal memorandum - C.M.P. No. 12898 of 1977 - the appellants seek to take an additional ground which on the reading of the ground would indicate is only giving another basis for the same contention. The ground reads: "The second plaintiff, having accepted the gift under Ext. A1, cannot accept the benefit under the said gift without at the same time conforming to all its provisions and renouncing every right inconsistent with them she cannot claim any share in the properties of the deceased on the principle that she cannot both approbate and reprobate''. In the affidavit in support of the application for a consequential amendment of the appeal memo, the 8th appellant states that the ground taken is only a pure ground of law arising from the admitted and proved facts of the case. No prejudice would be caused to the plaintiffs by allowing the appellants to rely upon the said ground of: law also in support of the appeal. He states that otherwise irreparable injury would be caused to the appellants. 5. I may in the first instance state that I find no objection in allowing the appellants to take up this additional ground. After all it is a pure question of law. As the Supreme Court has pointed out in Seth Loon Karan Sathiya v. Ivan E. John and others 1969 (1) SCWR 222 cited by Shri Shenoi, learned Counsel for the appellants, purely legal contentions if they are valid go to the root of the matter and such contentions would be permitted to be raised in the appellate court even though they were not taken in the pleadings or before the court below. I may also at the outset state that though a ground is taken in the appeal memo that the marriage between the 1st plaintiff and Noohu Kannu was not subsisting on the date of the gift deed Ext. I may also at the outset state that though a ground is taken in the appeal memo that the marriage between the 1st plaintiff and Noohu Kannu was not subsisting on the date of the gift deed Ext. A1 and the 1st plaintiff is not entitled to any share in the estate left by Noohu Kannu, on the concurrent findings of the facts of the matter by the courts below, I see no reason to interfere with the decision and Mr. Shenoi did not lay much stress on this point. What Mr. Shenoi strongly urged before me is that in asking for partition for share in the estate left by her father, the 2nd plaintiff the daughter should not be allowed to approbate and reprobate i.e. if she wants to retain the benefit under Ext. A1 she should give up her claim in respect of the properties left by her father on his death or in the alternative she may lay claim to her share of the estate giving up the gift in her favour of the 50 cents of property covered by Ext. A1. 6. Mr. Shenoi pointed out that he is not really raising the contention on behalf of the plaintiffs on this aspect of the question on the ground of estoppel. As has been laid down by the Supreme Court in Gulam Abbas v, Haji Kayyam AIR 1973 SC 554 if the expectant heir under the Mohamedan Law receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir can be debarred from setting up his right when it does unquestionably vest in him. The principle of estoppel operates in such cases. That though under the Mohamedan Law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void, such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. As Suleman, C. J. observed in Latafat Hussain v. Hidayat Hussian AIR 1936 All. 573. As Suleman, C. J. observed in Latafat Hussain v. Hidayat Hussian AIR 1936 All. 573. "The question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mohamedan Law." But, for the application of estoppel, the principle of which is statutorily recognised in the Evidence Act in S.115 and 116 it requires a person to act inconsistently with the representation, expressly or impliedly made to the other party on which the other party has acted to his detriment. That basis for the application on the ground of estoppel is strictly not here. 7. The learned District Judge is correct in stating that in the absence of any conduct on the part of the 2nd plaintiff which would have put her father under the belief that making this gift the 2nd plaintiff will not thereafter he claiming her due share of the properties, no question of estoppel as such arises. 8. However, there is another fundamental principle which would be applicable in this case and that principle has been succinctly stated in the decision of the House of Lords reported in James, C. Pitman v. Alexander Crum Ewing and others 1911 AC 21. That was a case which came in appeal to the House of Lords from part of a decision of the First Division of the Court of Session, Scotland, upon a special case. There it was said that it is equally settled in the law of Scotland and of England that no person can accept and reject the same instrument. Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with them. In that case a testator gave the life rent of a fund to his daughter and the fee to her children "in such proportions ............ . and subject to such restrictions provisions and limitations as she may direct" and failing such directions then equally among them. The daughter by one comprehensive trust disposition and settlement which was not a good exercise of the power of appointment gave the fund massed with her own estate to her children in life rent and to their children in fee. and subject to such restrictions provisions and limitations as she may direct" and failing such directions then equally among them. The daughter by one comprehensive trust disposition and settlement which was not a good exercise of the power of appointment gave the fund massed with her own estate to her children in life rent and to their children in fee. The House of Lords said that though a comprehensive trust disposition and settlement was not a good exercise of the power of appointment under the Will, the children of the daughter claiming the fund in default of appointment must be put to their election between their own rights and the benefits conferred on them by the Will, as they could not accept part and reject part of the same Will. It will be useful in this connection to note that Lord Shaw of Dunfermline in his judgment quotes the following passage of Lord Eldon in the House of Lords in the Scotch case of Ker v. Wauchope I Bli 1. "It is equally settled in the law of Scotland and of England that no person can accept and reject the same instrument." Lord Shaw further points out that in as comprehensive although ampler language, Lord Cairns puts again the law of both countries on the same footing of general principle in Codrington v. Codrington LR 7 HL 854, 861, "By the well settled doctrine, which is termed in the Scotch Law the doctrine of approbate and reprobate and in our Courts more commonly the doctrine of election, where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent therewith." Lord Shaw further states in his judgment: "In the law of Scottish succession, however, and in the law of all countries where the rights of children are of such a nature that it is in the general case beyond the legal power of a parent totally to disinherit them, there come frequent occasions when the legal rights of the children have to be balanced against the conventional provisions of a settlement under which they also have benefits. If, however, my Lords they choose their legal rights, it is familiar and elementary that they cannot at the same time choose their conventional benefits. Their legitima portio falls to them as a debt due from the estate, and they cannot on the one hand pro tanto deplete the estate, and on the other hand claim conventional provisions made out of it by the parent's settlement. That, my Lords, is only an illustration of a difference in the law of succession, and therefore of extending and applying the principle of approbate and reprobate to that particular; but nothing of this imparts any change in the principle to be applied." Mr. Shenoi in his argument has stressed on this passage. He contended that the law of approbate and reprobate or law of election as English lawyers put it will be applicable even in cases where a person cannot totally disinherit his heirs as in the Mohamedan Law. Equitable doctrine of election or law of approbate and reprobate which we derive from the English law is derived on a principle which is old, basic and wide. A person may not take a benefit and reject an associated burden or to put it in another way, a person may not choose between parts of a single transaction. "He may not approbate and reprobate." Qui Sentit commodum sentire debet et onus. In Hanbury and Maudsley's Modern Equity it is stated: "At the beginning of the eighteenth century this principle appears in a distinct form; a volunteer taking under a Will must give effect, so far as he is able, to everything contained in the Will. But in this form the principle is extended from Wills to deeds and, by the end of the century, it is at the root of a wide variety of cases. Cases of excessive execution of a power, ineffective disposition of reality, and dispositions in conflict with a spouse's right such as dower are among the most common. Such cases may lead to an election, in this sense: the disappointed beneficiaries may be to some extent compensated by making those who do take under the instrument elect between their rights. Cases of excessive execution of a power, ineffective disposition of reality, and dispositions in conflict with a spouse's right such as dower are among the most common. Such cases may lead to an election, in this sense: the disappointed beneficiaries may be to some extent compensated by making those who do take under the instrument elect between their rights. To attempts to give property over which A has rights to B absolutely, and as part of the same transaction, gives other property to A. A cannot take the latter without giving effect to the former." (10th Edition-Page 577.) As the authors themselves say the doctrine is not of course confined to Wills. No doubt, applying this principle to Indian conditions we should know three things; first we have a basic idea enshrined in a technical doctrine. This basic idea has continued to have applications that are analogous to the technical doctrine but not part of it. Some parts of the technical doctrine are anomalous in that they inherit reasoning from the doctrine's earlier days. As an equitable principle this can certainly be applied in India. 9. Another case in this connection is Douglas Mensiesx v. Umphelby 1980 AC 224 where Lord Robertson observes as follows at page 232 of the report: "In considering the merits of the decision appealed against it is well to remember the doctrine of approbate and reprobate involved by the appellant. Although the name is different, the principle as was laid down by Lord Eldon in -- 'Ker v. Wauchope', 1819 (I) Bligh 1 (B), is the same as that of the English Law of election. It is against equity that any one should take against a man's Will and also under it. This rests on no artificial rule, but on plain fair dealing. If any one has the right by law to take a share of a testators' estate, which the testator has not given but has otherwise disposed of, that person takes it against the Will and cannot go on to found on the Will and claim its benefits." 10. In Rungama v. Atchama 1846 (4) MIA 1 = 7 WR 57 it was said that election is a principle not peculiar to the English Law, but common to all which is based on the rules of justice, viz. In Rungama v. Atchama 1846 (4) MIA 1 = 7 WR 57 it was said that election is a principle not peculiar to the English Law, but common to all which is based on the rules of justice, viz. the principle that a party shall not at the same time affirm and disaffirm the same transaction, -- affirm it as far as it is for his benefit and disaffirm it as far as it is for his prejudice. 11. I might state here, to avoid confusion that I am referring to the equitable doctrine of election which is some times expressed by the phrase "approbate" and "reprobate" (which phrase is said to be the Scottish equivalent of the doctrine) and not to the English common law doctrine of election. The common law doctrine, of election is more in the realm of the law of estoppel which may conveniently be summarised as follows. "Where A dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing, between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course, and definitely to reject or relinquish the other, and B in such belief laters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting." In the Law relating to estoppel by representation by Spencer Bower and Turner (Second Edition by Turner 1966) it is pointed out at pages 286 and 287: "But it is certain that the equitable doctrine of election has no connection with the common law principle which puts a man to his election (to give a few instances only) whether he will affirm a contract induced by fraud or avoid it, whether he will in certain cases waive a tort and claim as in contract, or whether, in a case of wrongful conversion, he will waive the tort an 1 recover the proceeds in an action for money had and received. Common law election relates for the most part to alternative in a Court of justice. Common law election relates for the most part to alternative in a Court of justice. The history of the common law rules, the principles which apply to them and the effect of the election, are all very different from those which prevail where the equitable principle is in question." The distinction has been well explained in Lissenden v. C.A.V. Bosch Ltd. 1940 (1) All. ER 425 at 429 = (1940) AC 412 at 418, 419 by Lord Maugham. Turner points out that Lord Simon in his Judgment in Young v. Bristol Aeroplane Co. 1946 AC 163 cites Lord Maugham's passage with approval. In the present document concerned in this case which is marked as Ext. A1 what is stated is: Malayalam "xxx" If the 2nd plaintiff accepts this gift certainly she cannot claim any right in the estate after the death of her father. No doubt, if she is willing to give up the gift subject to her rights to the value of improvements, if any she has made in the said property from the time she was in possession of the same, she could claim share in her deceased father's estate. Therefore, I would modify the judgment and decree of the court below by holding that as far as the 2nd plaintiff is concerned she would be entitled to claim share in the property only if she gives up the gift. She will have to make an election as to whether she would take the gift or claim a share in her father's estate. If she claims the share she will have to give up the gift, no doubt subject to her rights to the value of improvements, if any she has made in the property. However, nothing will impede in any way her succession to the 1/16th share of the estate which the 1st plaintiff had got. The time for the 2nd plaintiff to make the election in the manner indicated above will be at the final decree proceedings. If she gives up the property gifted and prefers to get the share in the estate, the same will have to be brought into hotchpotch for partition amongst the various sharers. The second appeal is disposed of as above. There will be no order as to costs.