S.K. Katriar, J.
1. The plaintiff is the appellant against a judgment of affirmance. This appeal is directed against the judgment and decree dated 6-3-2002, passed by learned Additional District Judge II, Patna, in Title Appeal No. 21 of 1994 (Smt. Phul Kumari Tripathi v. Smt. Veena Devi @ Saraswati Devi), whereby he has dismissed the plaintiffs appeal, and has upheld the judgment and decree dated 21-1-1994, passed by learned 2nd Munsif, Patna, in Title Suit No. 841 of 1988 (Smt. Phul Kumari Tripathi v. Veena Devi @ Saraswati Devi), whereby the suit had been dismissed. Hence this appeal at the instance of the plaintiff. We shall go by the description of the parties occurring in the plaint.
2. The facts lie in a narrow compass, and are almost admitted except some details which are inconsequential for the disposal of this appeal. According to the plaint, CS Plot No. 506, appertaining to Khata No. 39, situate in the locality of Rajapur in the township of Patna, originally belonged to Vijay Kumar Singh, out of which he sold two and a half kathas each in favour of the plaintiff and the defendant by separate registered deeds of absolute sale dated 24-1 -69. There was and continues to be a 16 feet wide municipal road on the southern side of the two plots. There were either vacant plots or constructed houses on remaining three boundaries of the two plots. In view of the measurement of the plots with long length and short breadh, each side having 28'3" (approx.) in width and 120 feet in length, it was not possible to have good and proper houses, on the two plots. The parties, therefore, agreed to an oral settlement way back in 1970, whereby they amalgamated their plots and divided their lands from east to west half and half, and the southern half adjacent to the municipal road was allotted to the defendant. The rear plot, i.e. to the north of the plot allotted to the defendant, was allotted to the plaintiff. In view of the position that the land allotted to the plaintiff was entirely land-locked, it was part of the same oral agreement that the defendant shall on the eastern side of her plot leave a passage measuring eleven feet wide starting from the municipal road upto a distance of sixteen feet, and thereafter twelve feet wide upto the land of the plaintiff for the exclusive use of the plaintiff for ingress and egress and shall be in her exclusive possession. The parties had also agreed that the defendant will have limited rights thereafter in relation to the said passage.
2.1. According to the plaintiffs further case, the plaintiff constructed the ground-floor of her house between 1970 and 1974, and the upper floors were constructed later on. Similarly, the defendant also constructed her own house on the area allotted to her. After the constructions were complete, the terms and conditions of the oral agreement were reduced into writing on 3-12-1978, and the demarcation of land has been reduced into a sketch map annexed to the same. The suit was instituted for the declaration that the plaintiff has the exclusive right, title and interest including the right of user of the passage, the defendant cannot open their window planks on the side of the passage, nor can project chajjas or balconies on the side of the passage, the defendant be directed to remove the same, the defendant be permanently restrained from making construction of wall on the western extremity of the passage land.
3. On the other hand, the defendant's case as per the written statement, is that the parties had purchased the land length-wise. As it was found inconvenient for the purpose of construction, the parties had re-arranged and re-partitioned the land by dividing the same in the aforesaid manner exactly half and half. She had handed over a sum of Rs. 2000/- to the plaintiff for creation of a passage by acquisition of the adjoining lands. In other words, the parties had agreed to re-arrange the lands and be in possession of exactly half and half without any right of passage to the plaintiff The parties constructed their houses after re-allotment of lands and the defendant constructed underground chamber on the portion of her land which is now being claimed by the plaintiff as her passage, opened windows, and constructed balcony and chhajjas on the side of the alleged passage. The aforesaid agreement dated 3-12-1978 is an unregistered document and is, therefore, hit by the provisions of Section 17 read with Section 49 of the Registration Act, 1908 (hereinafter referred to as the 1908 Act).
4. The parties entered appearance. The learned Munsif framed the following issues for adjudication:--
1. Is the suit as framed maintainable ?
2. Is the suit barred by limitation and adverse possession ?
3. Is the suit barred by estoppels, acquisition and waiver ?
4. Is the suit barred under Section 34 of the Specific Relief Act ?
5. Has the plaintiff got any cause of action for the suit ?
6. Is the plaintiff entitled to relief, sought for by the plaintiff ?
7. To what relief or reliefs, if any, found be entitled to the plaintiff ?
5. The parties led evidence in support of their respective cases. The trial Court in substance held that the agreement marked Ext. 2 is unregistered and is hit by the provisions of Section 17 read with Section 49 of the 1980 Act and cannot be received as evidence of the transaction affecting the property. Therefore, the declaration sought for by the plaintiff as to the right of passage cannot be granted. He has further found that undisputed position is that the defendant had given the plaintiff the right of passage which cannot at this stage be extinguished. In so far as opening the windows and construction of chhajjas and balcony are concerned, the plaintiff did not object to the same at the time of construction, and cannot now be allowed to be objected. Furthermore, the same does not obstruct the right of passage. He has concluded by holding that the plaintiff has no cause of action to maintain the suit, the defendant has allowed the plaintiff to use the passage from the inception, the windows and the chhajjas and the balcony put up by the defendant do not obstruct the plaintiff's right of passage. The suit has accordingly been dismissed.
6. Aggrieved by the judgment of the trial Court, the plaintiff appealed before the learned District Judge which has been dismissed by the impugned judgment. The learned Court of appeal below has in substance found that the parties agreed and constructed their houses as per their oral agreement agreed upon in 1970, and reduced into writing in 1978. The parties have partly constructed their houses on each other's land. The plaintiff had agreed to take the plot of land after re-adjustment in the rear, being an entirely land-locked plot with the stipulation of the right of passage. The defendant had given the sum of Rs. 2000/- to the plaintiff for improvement of the existing passage and making it pucca. As part of the aforesaid oral agreement of 1970, the plaintiff had given to the defendant the right to open windows and construct chhajjas and balcony on the side of the said passage. The defendant, therefore, cannot be asked to remove the same, particularly after the huge expenditure incurred with the consent of the plaintiff. It has further been found that the plaintiff's title to the passage cannot be declared because the unregistered agreement of 1978 (Ext. 2) is hit by the provisions of Section 17 read with Section 49 of the 1908 Act Therefore, the plaintiff's prayer to declare the right, title and interest with respect to the said passage cannot be granted, although the same is a genuine document, both the parties can jointly use the passage, and the defendant can open windows and project chhajjas and balcony on that side. The defendant has also been given the right to put up three chambers underground the said passage, and flow water by an underground the said passage, and flow water by an underground pipe. Hence this appeal at the instance of the plaintiff. The defendant has also preferred cross-appeal and the issues raised therein have been considered on merits.
7. While assailing the validity of the impugned judgment, learned counsel for the plaintiff (appellant) submits that the agreement of 1978 (Ext. 2) has to be enforced because the parties have voluntarily adjusted their positions which has become irreversible. He further submits that the arrangement in question was orally agreed upon between the parties way back in 1970, being akin to a family arrangement and, therefore, does not need compulsory registration in terms of Section 17 of the 1908 Act. Relying on the provisions of Section 37(2) of the Bengal, Agra and Assam Civil Courts Act 1887 (hereinafter referred to as the 1887 Act), he submits that the Court should act according to justice, equity and good conscience. He relies on various Latin maxims and has drawn support from Boom's Legal Maxims. He has placed reliance on the following reported judgments:--
1. AIR 1976 SC 807
2. AIR 2002 Bombay 129
(Smt. P.N. Wankudre v. C.S. Wankudre)
3. AIR 1962 Patna 400
4. AIR 2003 SC 578
8. Learned counsel for the defendant (respondent) has submitted that the plaintiff has only been given the easementry right of passage. The defendant's right to use the same as passage, the right to construct underground sump, and her right to open doors and windows, project chhajjas and balcony remain unaffected. In other words, the defendant has no objection to the plaintiff's using the passage in common with the defendant. The issue is concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. He relies on the judgment of the Supreme Court reported in AIR 2001 SC 2920 (Veerayee Ammal v. Seeni Ammal) (Paras 7 to 10). He next submits that the provisions of Section 37(2) of the 1887 Act are inapplicable to the facts and circumstances of the present case. The agreement (Ext. 2) needs compulsory registration. He next submits that interpretation of a document does not raise a substantial question of law. He relies on the judgment of the Supreme Court in Veerayee Ammal v. Seemi Ammal (supra). He further submits that the plea of estoppel has neither been pleaded nor raised before the Courts below. He relies on the judgment of this Court reported in AIR 1942 Patna 71 (Jado Singh v. Bishunath Lal Kanedia Marwari). There cannot be estoppel against the statute. He lastly submits that the plaintiff has allowed one Dinanath Tiwary, who has constructed a house on the northern side of the plaintiffs house, to use the passage and, therefore, the agreement has been violated and rendered unenforceable.
9. It appears to me on a consideration of the impugned judgment, the materials on record, and the submissions of learned counsel for the parties, that the parties had purchased their lands by separate registered deeds of absolute sale as per the specifications and boundaries indicated in their registered title deeds. The parties decided to adjust their plots so that comfortable and proper houses could be built. Therefore, the parties had amalgamated their plots and divided it half and half in the manner indicated in the sketch annexed to the agreement (Ext. 2), and a photocopy of the same is the next page of this judgment.
FINAL MAP OF THE PASSAGE TO BLOCK A AND THE PLOT OF M/S FULKUMARIE VI W/O SRI VISHWANATH TIRIPATHI AND SMTI VINA DEVI W/O SRI RAM TIWARI AFTER MUTUAL AGREEMENT AND EXCHANGE KHATA NO. 39 TAUZI NO. 18223 KHESRA NO. 506 (PART) THANA NO. 3
(Editor: The text of the vernacular matter has not been reproduced.
The southern half adjacent to municipal road was allotted to the defendant, and the rear plot, i.e. to the north of the plot allotted to the defendant, was allotted to the plaintiff. The parties were full conscious of the position that the land on the rear portion was entirely land-locked and allottee of the same had no passage for ingress and egress. They had, therefore, orally agreed to create the said passage giving unrestricted and exclusive right of ingress and egress to the allottee (plaintiff) of the rear plot. The parties had also orally agreed for some of the other terms and conditions for effectual exercise of the right, obligation and the needs of the parties which are indicated in the agreement (Ext. 2) and are summarised hereinbelow in the language as nearly as possible stated therein. The materials on record show that the plaintiff commenced construction of the ground floor of his house in 1974, the first floor in 1978, and the second floor was completed in 1980. Grih Pravesh of the house was done in 1974. It further appears from the impugned judgment that the parties thereafter agreed to reduce the terms and conditions of the aforesaid oral agreement accompanied with the sketch map (compendiously marked Exhibit 2) into writing for the purpose of memory and posterity which was signed by them on 3-12-1978. On a plain reading of this document, I observe that the following are its main features:--
(i) Much after the purpose, both the parties realised that the plots of land were very long and the breadth was very short, and it was not possible to construct a convenient house on each of the two plots. Therefore, the parties arrived at oral agreement with a view to construct their respective houses over the lands to be mutually adjusted by the parties on the following terms and conditions. The defendant is described in the agreement and the sketch map appended thereto as the first part, and the plaintiff as the second part,
(ii) Both the parties had mutually agreed to divide their land from east to west half and half length-wise, and the southern half adjacent to the municipal road was allotted to the defendant and the northern side (rear plot) allotted to the plaintiff. In view of the position that the plaintiff had, after the re-adjustment, no passage leading to his plot, it was agreed that the defendant shall allow passage from the municipal road to that of the plaintiff with a width of 11 feet upto 16 feet from the municipal road, and 12 feet thereafter upto the land of the plaintiff.
(iii) The said passage would always remain in the exclusive possession and use of the plaintiff. The defendant agreed not to interfere in the peaceful enjoyment of the passage, and the plaintiff had agreed to keep the passage intact for ever.
(iv) The defendant had paid a sum of Rs. 2000/- to the plaintiff for constructing a pucca road thereupon.
(v) According to the aforesaid terms and conditions, the parties had done the measurement of the land accordingly, carved out the same, and the passage was demarcated and the parties came in possession over their respective land in accordance with site plan annexed to the agreement.
(vi) The plaintiff permitted the defendant to construct three underground refuse water chambers of the size of 1' x 1 1/2' along with a connecting pipe of 6 inches diameter to be connected with the chamber on the Municipal card in front of the passage, with the clear stipulation that the defendant shall have no right, title, interest whatsoever of any kind on the passage exclusively belonging to and in the actual physical possession of plaintiff on account of such permissive construction. The defendant was also liable to pay compensation to the plaintiff for any damage to the passage on account of construction/repair etc. The defendant was also permitted to use this passage for repair of his house on the eastern side of his house without causing any annoyance or inconvenience to the plaintiff.
(vii) It was clearly stipulated that the defendant shall never use the passage in any manner other than provided in the agreement.
(viii) The passage in the exclusive possession of the plaintiff has been described in the sketch map appended to the agreement in green ink, and the plaintiff shall be permitted to use the pillar on the south-eastern corner of the land of the defendant to fix a gate on the said passage.
(ix) The agreement clearly states that the parties had orally agreed upon the terms and conditions earlier and was being reduced in writing so that it may be useful to both the sides in future.
10. It appears that the amalgamation of the two plots of land and re-distribution by way of an oral agreement is in the nature of a family arrangement. Learned counsel for the plaintiff has, therefore, rightly relied on the judgment of the Supreme Court in the case of Kale v. Dy. Director of Consolidation reported in AIR 1976 SC 807, the relevant portions of which are set out hereinbelow:--
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:...
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Hence also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the records or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore, does not fall within the mischief of Section 17(2)(sic) (Section 17(1)(b) of the Registration Act and is, therefore, not compulsorily registrable."
"25. Further as stated above, the appellant's husband through whom the Appellant claims, had acted upon the said documents and had derived benefit thereunder. The appellant herself also affirmed the agreements as stated above and further raised no objection in respect thereof for a number of years. In such circumstances, even assuming that the documents were required to be registered, their conduct operated as an estoppel preventing them from resiling from this arrangement. In Kales case (supra), the Supreme Court held as under at page 823:--
"38. Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable, there can be estoppel against the statute....
Assuming, however, that he said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal 45 Ind App 118 at p. 124: (AIR 1918 PC 70 at p 74), the Privy Council applied the principle of estoppel to the facts of the case and observed as follows:
"Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships opinion he is bound by it, and cannot now claim as a reversioner."
26. It is well established that the Courts generally lean in favour of family arrangements, take a very liberal and broad view of the validity of family arrangements and try to uphold and maintain them rather than strike them down on frivolous grounds. The principle is well settled and it is unnecessary to refer to all the decisions. If any authority is required in this regard, it is sufficient to refer to the judgment of the Supreme Court in Kales case (supra)."
The judgments of this Court in Awadh Narayan Singh v. Narayan Mishra (supra) and that of the Bombay High Court, in P.N. Wankudre v. C.S. Kudre (supra), are to the same effect.
11. Learned counsel for the plaintiff (appellant) is right in submitting that after having reallotted their lands with consent and having constructed their houses thereupon as per the oral agreement inter-parties and reduced into writing at a later date vide Ext. 2, the defendant (respondent) is estopped from challenging it or resiling from that position. The oral agreement had been fully acted upon by both the parties much before the same was reduced into writing. The Supreme Court has observed in its judgment in B.L. Sreedhar v. K.M. Munireddy (supra) that estoppel can itself be the foundation of a right against the person estopped and indeed, if it were not so, it is difficult to see that protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Paragraphs 22, 25, 26 and 27 of the judgment are relevant in the present context and are set out hereinbelow for the facility of quick reference:--
- "22. The essential factors giving rise to an estoppel are, I think--
"(a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made.
"25. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped.
"26. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddy v. Deputy Kamalamma. (AIR 1951 Madras 403) where Vishwanatha Sastri, J. observed:
"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."
"27. Of course, an estoppel cannot have the effect of conferring upon a person legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."
It is thus manifest that the defendant (respondent) in the facts and circumstances of the present case is estopped from challenging the agreement (Ext. 2), having been fully acted upon. In fact, the defendant is a greater gainer under the agreement. Its terms and conditions have been reduced into writing at a later date, much after the same was finally acted upon. The oral agreement is in the nature of a family arrangement and, therefore, does not need compulsory registration. Even if it needed compulsory registration, the same must be dispensed with in the present case, inter alia, for the reason that the same has been fully acted upon and the parties have made their position irreversible. The Court have generally learned in favour of family arrangements and try to uphold them rather than striking down the same on technical grounds and attributable to the greedy or dishonest approach of the party disowning the same.
12. Law is well settled that an agreement has to be taken as a whole or rejected as a whole. An agreement is a voluntary act of the parties, is a composite whole each clause of which is a consideration for the other and binds the parties fully, particularly after the same has been acted upon. Having taken full or part benefit under the agreement, he cannot disown the remainder of the agreement He must take the settlement as a whole, with its benefits and emcumbrances. I am supported by the judgment of the Supreme Court reported in AIR 1977 SC 322 (Herbertsons Ltd. v. The Workmen of Herbertsons Ltd.), and that of this Court reported in 1988 PLJR 125 (Rohtas Industries Ltd. v. Ghanshyam Das Premi). Though the judgments were under the Industrial Disputes Act, the principle enunciated thereunder is illuminating.
13. Learned counsel for the plaintiff submits that the provisions of Sub-section (2) of Section 37 of the 1887 Act are inapplicable to the facts and circumstances of the present case. In cases not covered by Sub-section (1) of Section 37 or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience. Learned counsel for the defendant (respondent), on the other hand, submits that Sub-section (2) of Section 37 applies only with respect to the items mentioned in Sub-section (1) of Section 37 of the Act, namely, succession, inheritance, marriage or caste, or any religious usage or institution. Section 37 of the 1887 Act is reproduced hereinbelow for the facility of quick reference:--
"37. Certain decisions to be according to law.--Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment been altered or abolished.
(2) In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience."
I am unable to accede to the submission of the learned counsel for the defendant (respondent), inter alia, for the reason that Section 37(2) of the Act really applies to situations and cases not covered by Section 37(1), i.e. cases other than succession, inheritance, marriage or caste or any religious usage or institution. Section 37(2) applies in a situation or a case where there is absence of statutory provisions and in case of doubt or difficulty. The judgment of this Court in the case of Basudeo Choudhary v. State of Bihar (supra) fully supports the view that I have taken. That was a case where this Court felt difficulty in applying the law of pre-emption envisaged by Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act in a situation where both sides appeared to this Court to be equally entitled to the benefit of Section 16(3). That was obviously not a case relating to succession, inheritance, marriage or caste or any religious usage or institution under the Hindu Law or the Mohamedan Law. Taking guidance from the traditional law of pre-emption in the Mohamedan law, this Court came to the conclusion that both the sides were entitled to equal shares in the disputed lands and each of them was liable to pay half the amount as per Section 16(3) of the said Act. I am, therefore, of the view that the provisions of Section 37(2) of the 1887 Act is available to the plaintiff in the present case, i.e. in the absence of statutory provisions governing an extra-ordinary situation like the present one where the parties have made their position irreversible by re-allotment of land which is tantamount to alteration of right, title and interest in the lands without a registered document in terms of Section 17(3) of the 1908 Act. The defendant (respondent) can be permitted to resile from this position only after he demolishes his own house, pays the exact market value of the house of the plaintiff (appellant) as on the date of the demolition, and possession of the lands is restored as per the original title deeds. In the totality of the situation, I feel convinced that this Court should be guided by the provisions of Section 37(2) if the 1887 Act and must act according to justice, equity and good conscience which leads to the irresistible conclusion that the agreement must be implemented fully with all its details.
14. Learned counsel for the plaintiff (appellant) has rightly relied on the legal maxim QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS which means "He who derives the advantage ought to sustain the burthen." This legal maxim has been discussed at length in Broom's Legal Maxims (Tenth Edition), at page 482, the relevant portions which are set out hereinbelow for the facility of quick reference:--
"The contract must be performed in its integrity. Accordingly, where a person adopts a contract which was made on his behalf, but without his authority, he must adopt it altogether. He cannot ratify that part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere.
...If, moreover, a person accepts anything which he knows to be subject to a duty or charge, it may be rational to conclude that he means to take such duty or charge upon himself, and the law may imply a promise to perform what he has so taken upon himself.
.... A testator gives a specific bequest to A, and directs that in consideration of the bequest A shall pay his debts : the payment of the debts is, in this case, a condition annexed to the specific bequest, and if A accept the bequest, he is bound to pay the debts, though they exceed the value of the property bequeathed to him.
... .We may observe also that the Scottish doctrine of "approbate and reprobate" is strictly analogous to that of election in our own law, and may consequently, be properly referred to the maxim now under consideration. The principle on which this doctrine depends is, that a person shall not be allowed at once to benefit by and to repudiate an instrument, but that, if he choose to take the benefit which it confers, he shall likewise discharge the obligation or bear the onus which is imposes. "It is equally settled in the law of Scotland as of England, that no person can accept and reject the same instrument. If a testator give his estate to A, and give A's estate to B, Courts of equity hold it to be against conscience that A, should take the estate bequeathed to him, and at the same time refuse to give effect to the implied condition contained in the will of the testator. The Court will not permit him to take that which cannot be his but by virtue of the deposition of the will, and at the same time to keep what, by the same will, is given or intended to be given to another person. It is contrary to the established principles of equity that he should enjoy the benefit, while he rejects the condition of the gift."
15. Law is well settled that having made an election under a scheme and having taken the benefit thereunder, and altered their position, the party or the parties cannot at a later date be allowed to resile from the same and disown the election. In the present case, the defendant has surely taken the advantage of taking the far better of the two plots of the land after adjustment, having constructed his house thereon which is at the municipal road, relegating the plaintiff to an undoubtedly inferior plot in the rear being entirely land land-locked, he cannot be permitted to disown the agreement. The law in this behalf has been very well explained and illumined in Halsbury's Law of England, Vol. 16, 5th Edition, Reissue, the Hailshan Edition, paragraphs 957 and 1071 of which are set out hereinbelow for the facility of quick reference:--
"957. Approbation and Reprobation.--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:
(1) That the person in question, having a choice between two courses of conducts, is to be treated as having made an election from which he cannot resile; and
(2) 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 first pursued and with which his subsequent conduct is inconsistent.
Thus a plaintiff, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them.
The common law principle which puts a person to his election between alternative and inconsistent courses of conduct has no connection with the equitable doctrine of election and relates mainly though not exclusively, to alternative remedies in a Court of justice."
"1071. Promissory Estoppel.--When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relation subject to the qualification which he himself has so introduced. The doctrine of promissory estoppel derives from a principle of equity enunciated in 1877, but has been the subject of considerable developments. It differs from estoppel in pais in that the representation relied upon need not be one of present fact. The doctrine cannot create any new cause of action where none existed before, and it is subject to the qualification that:
(1) the other party has altered his position;
(2) the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promise a reasonable opportunity of resuming his position;
(3) the promise becomes final and irrevocable only if the promise cannot resume his position.
The doctrine is known variously as 'equitable' or 'promissory' or 'quasi' estoppel.
16. Learned counsel for the defendant next contends that the plea of estoppel has neither been pleaded nor been raised before the Court below and, therefore, cannot be permitted to be raised for the first time in second appeal. The contention is stated only to be rejected. The issue raised in the form as has been done by the plaintiff (appellant) raises a pure question of law. Learned counsel for the defendant submits in the same vein that there cannot be estoppel against the specific terms of statute. The contention has to be rejected in view of the forgoing discussion that the agreement (Ext. 2) does not need registration in terms of Section 17 of the Act, inter alia for the reason that it is a family arrangement orally agreed and acted upon much before it was reduced into writing.
17. Learned counsel for the plaintiff has rightly relied on the Latin Maxim MODUS ETCONVENTIO VINCUNT LEGAM which in its English rendition would mean that "The form of agreement and the convention of parties overrule the law." This maxim has been discussed at length in Broom's Legal Maxims, tenth Edition, at pages 470 to 476, the relevant extracts of which are set out herein below for the facility of quick reference:--
"This may be regarded as the most elementary principle of law relative to contracts, and may be thus stated in a somewhat more comprehensive form: The condition annexed to a grant or devise, the convenants inserted in a conveyance or lease, and the agreements, whether written or verbal, entered between parties, have, when duly executed and perfected, and subject to certain restrictions, the force of law over those who are parties to such instruments or agreements. "Parties to contracts," remarked Erle, J., "are to be allowed to regulate their rights and liabilities themselves," and "the Court will only give effect to the intention of the parties as it is expressed by the contract."
Where the tenant of a house covenanted in his lease to pay a reasonable share of the expenses of supporting and repairing all party-walls, and to pay all taxes, duties, assessments, and impositions, parliamentary and parochial - "it being the intention of the parties that the landlord should receive the clear yearly rent of L 60 in net money, without any deduction whatever" - and during the lease the owner of the next house built a party-wall between his own house and the house demised, under a provision of the Fire Prevention (Metropolis) Act, 1774: it was held that the tenant and not the landlord, was bound to pay the moiety or the expense of the party-wall; "for", observed Lord Kenyon, "the convenants in the lease rendered it unnecessary to consider which of the parties would have been liable under the Act; modus et conventio-vincunt legem."
....In an action for not carrying away tithe com, the plaintiff alleged that it was "lawfully and in due manner" set out : it was held that this allegation was satisfied by proof that the tithe was set out according to an agreement between the parties, although the agreed mode varied from that prescribed by the common law, the tithe being set out in shocks, and not in sheaves, as the law directed.
....Again, the lien which a factor has upon the goods of his principal arises from a tacit agreement between the parties, which the law implies; but, where there is an express stipulation to the contrary, it pts an end to the general rule of law, banker, also, is part of the law merchant, and will be upheld by the Courts, unless there be some agreement between the banker and the depositor, either express or implied, inconsistent with such right."
18. Learned counsel for the defendant (respondent) has submitted that the plaintiff (appellant) has violated the terms and conditions of the agreement (Ext. 2) by allowing Dina Nath Tiwary, the owner of the plot adjacent north to the plaintiff. It is indeed correct to state that PW 8 (Vishwa Nath Tiwary), the husband of the plaintiff, has deposed in paragraph 12 of his deposition that the said Dina Nath Tiwary occasionally uses the passage in question for his ingress and egress. There is no evidence on record that Dina Nath Tiwary is using the passage in question on a regular basis. An occasional user of the passage by a third party is insufficient efficient to prove the regular user of the passage and as a matter of right and, therefore, cannot have any adverse effect on the sanctity and the enforceability of the agreement. I am in this connection reminded of the judgment of this Court reported in AIR 1937 Patna 388 (Muhammad Walilul Haque v. Ludput Upadhaya). That was a case where the Muslims had claimed the right of bathing in a hot spring at Rajgirh which the Hindus had claimed to be exclusively for them over the ages. An artificial pool (water body) forming part of the precincts of the Hindu temple, was always kept in repair by its Brahmin custodians and was enclosed by iron gates for more than 25 years. A customary right of bathing in it was claimed by certain Mahomedans on behalf of their community in general and evidence was adduced to show that certain distinguished Mahomedan bathed in the pool at times. Repelling the contention, the Division Bench held that "...the casual bath of a distinguished Muhammadan can hardly be treated as a representative bath, and this kind of evidence can certainly not be held to be sufficient to prove the existence of general customary right of all Muhammadans to enter the precincts to bathe whenever they please...."Secondly, this is basically a mixed question of law and facts and cannot be permitted to be raised in the second appeal for the first time, not having been raised before the Courts below. Thirdly, the agreement (Ext. 2) states that the plaintiff has been given exclusive possession of the passage. This, therefore, by necessary implication does not prohibit its occasional user by a third party so long it is with free and voluntary consent of the plaintiff. The contention is, therefore, rejected.
19. Learned counsel for the defendant (respondent) next submits that the plaintiff was given only easementary right to user, and she has no objection to the joint user of the passage. The issue has been discussed at length hereinabove and has to be rejected. Clause 8 of the agreement (Ext. 2) states in unequivocal terms that the first part (defendant) shall never use the passage referred to in the Agreement as also described in the Sketch Map in green ink appended hereto in the manner other than provided in the agreement. The agreement clearly stipulates that the said passage will always remain in the exclusive possession and user of the plaintiff. In fact, this stipulation is stated at four places in the agreement. The contention is, therefore, rejected.
20. Learned counsel for the defendant (respondent) next contended that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. He has relied on the judgment of the Supreme Court in Veerayee Ammai v. Seeni Ammal (supra), wherein it has been held that the issue framed by the trial Court in a suit for specific performance of agreement to sell was whether plaintiff was ready and willing to perform his part of contract. The issue being one of fact, concurrent findings of facts arrived at by Courts below on the said issue bind the High Court. It has further been held that the High Court in second appeal on appreciation of facts cannot take a different view and assume jurisdiction by terming the issue as a substantial question of law. The proposition of law in its abstract form is well established and well-known, but the same is inapplicable to the facts and circumstances of the present case. The question whether or not, in the peculiar facts and circumstances of the present case, the agreement (Ext. 2) needs registration in terms of Section 17 of the Act, or is a family arrangement by an oral agreement inter-parties, and after it has become Fait Accompli, reduced into writing for purposes of memory and future generation, needs registration or not, is undoubtedly a substantial question of law and needs adjudication by this Court. The foregoing discussion is enough to establish that the parties have raised pure questions of law which indeed, in the estimation of this Court, are substantial questions of law. Infact, the judgments of the Courts below have done a tight rope-walking in attempting to reconcile the unenforceability or otherwise of the agreement and the Fait Accompli of complete construction by the parties. Both the Courts below have sought to forge a via-media by declaring that the agreement is unenforceable and yet substantially granting the reliefs to the plaintiff flowing from the agreement, in a manner which does not appeal to this Court. The contention is, therefore, rejected.
21. I must deal with utmost clarity another area of dispute between the parties, namely, the extent of the right of user of the parties to use the land in question other than its user as a passage. It will bear repetition that the rights and obligations of the parties are entirely governed by the detailed terms and conditions of the agreement (Ext 2). The agreement has been written with clarity and precision and is free from cub-webs. The rights and obligations of the parties as per the agreement from this angle are as follows:--
(i) The plaintiff shall have exclusive possession and right of user of the passage to the complete exclusion of the defendant.
(ii) The defendant has been permitted to construct three under-ground refuse water chambers of the size of 1 feet. x 1 and 1/2 feet, along with connecting pie of 6 inches chamber to be connected with the chamber on the municipal road in front of the passage which shall not give to the defendant the right, title and interest whatsoever of any other kind with respect to the passage on account of the said permission.
(iii) In case of any damage to the passage on account of repair etc. of the chamber and the pipe, the defendant shall pay adequate and suitable compensation to the plaintiff.
(iv) The defendant can use the passage for repair of his house from the side of the passage without causing any annoyance or inconvenience to the plaintiff.
(v) The defendant will have the right to open windows on the ground floor, but the same must open inside the house.
(vi) The agreement nowhere provides that the defendant can project chhajjas or balconies on the passage. Invoking the provisions of Section 37(2) of the 1887 Act, I hold that it cannot be permitted upto the height of eight ft. from the ground, otherwise it will reduce the plaintiff's right of exclusive user of the passage coupled with the clause in the agreement that the passage must have a minimum width of 11 ft. from the municipal road upto the length of 16 feet, and thereafter with a width of 12 feet upto the plaintiff's land. The defendant can project chhajjas and balconies above the height of 8 feet which will allow to the plaintiff free passage of cars, three-wheelers and two-wheelers, human beings and cattle etc. The net result, therefore, is that defendant shall have to scrap the chhajjas and the balcony upto a height of eight feet from the ground. In view of this clause, the plaintiff cannot put up a wall to divide the defendant's house from the passage which, if permitted, will interfere with the defendant's right to open windows on the side of the passage and obstruct light and air. The defendant cannot open doors on the side of the passage on the ground floor.
22. I have no manner of doubt that the defendant (respondent) has been able to arrogate to herself the clearly superior plot because the same is on the main road without the slightest problem of ingress and egress, and the plaintiff has been given a clearly inferior plot, being entirely land-locked. The extra area to the plaintiff for purpose of construction is no compensation at all in a situation where ingress and egress would be impossible but for the passage in question. The defendant's act seems to be a high water-mark of dishonesty and chicanery, and the position to which the plaintiff has been driven giving rise to the present litigation is entirely of the doing of the defendant, contrary as it is to the clear terms and conditions of the agreement (Ext. 2), and the defendant (respondent) does not stand to lose at all by the luxury of the litigation. In the worst of the situation, she will be compelled to abide by the terms and conditions of the agreement inter-parties (Ext. 2), and in the best of the situation, for which she may be relying on the proverbial uncertainties of litigation, will enjoy the benefit of common user of the passage. She has gone to the extent of saying in the written statement that Rs. 2000/- was paid to the plaintiff"........... as the price for arranging another alternative passage...", which has been scaled down to common user of passage during the course of oral submissions. Such dishonest acts on the part of persons like the defendant give rise to most unwanted litigations and clog the Courts.
23. In the result, the appeal is allowed with costs throughout. The judgment and decree dated 6-3-2002, passed by the learned Additional District Judge II, Patna, in Title Appeal No. 21 of 1994 (Smt. Phul Kumari Tripathi v. Smt. Veena Devi @ Saraswati Devi), is hereby set aside, and the suit is decreed in the manner indicated hereinabove.