ALIKJAN BIBI Vs. RAMBARAN SHAH

JUDGEMENT

(1.) This is an appeal on behalf of mortgagor defendant in a suit to enforce a mortgage security. The case for the plaintiff is that on the 11 October, 1893, the appellant Alikjan Bibi bororwed Rs. 4,900 from Gopal Chand Agarwala, and executed in his favour the mortgage bond in suit. The plaintiff further alleges that no payments have been made towards the satisfaction of the bond, and that the second defendant, who was indebted to him for a large amount of money for the recovery of which he has obtained a decree against him on the original side of this Court, executed in his favour a trust deed on the 7 September, 1908. On the 15 September, 1906, the plaintiff commenced the present action for recovery of the sum due under the mortgage bond, and he joined as defendants, the mortgagor as well as the representative of the mortgagee whose interest he claims to have acquired under the trust deed. The defendant resisted the claim substantially on three grounds, namely, first, that the plaintiff was not entitled to maintain the action as he had not acquired any valid interest in the alleged mortgage-debt: secondly, that she had neither executed the bond nor received the consideration mentioned therein: and, thirdly, that she was at the time of the execution of the mortgage-deed, an infant, and consequently, even if she executed the deed, it was not binding upon her. The learned Subordinate Judge has overruled all these contentions, and has held that there is really no defence to the claim. In this view, he has made the usual decree for sale, in favour of the plaintiff. The mortgagor defendant has now appealed to this Court, and on her behalf, the decree of the Subordinate Judge has been assailed on the three grounds unsuccessfully urged in the Court below. It has further been contended that the plaintiff is not entitled to succeed, inasmuch as he has not established that the deed was executed under circumstances which would make it binding upon a pardanashin lady: in other words, it has been suggested that the deed was not explained to her, and she had no independent advice in the matter of the transaction. In answer to this last contention, it has been argued on behalf of the respondent that the defendant cannot be permitted to set up two inconsistent defences, that is, to plead that the document was a forgery and was never executed by her, and in the alternative, that it was executed by her, but under circumstances which do not make it binding upon her. In support of this position reliance has been placed upon the observation of the Judicial Committee in the case of Mahommed Buksh Khan v. Hosseini Bibi 15 I.A. 81 : 15 C. 684. The first point, therefore, which requires consideration is, whether it is open to the defendant to take inconsistent defences of this character.

(2.) In the case of Mahomed Buksh Khan V/s. Hosseini Bibi 15 I.A. 81 : 15 C. 684. the suit was brought by a lady to set aside a hibanama on the ground that it had never been executed by her and had been fabricated. The issue raised, however, was in more comprehensive terms: "Whether the Hibanama on behalf of Sahjadi is genuine and valid, and executed with her knowledge and consent, or whether it was manufactured without her knowledge and consent, or whether it was executed under undue influence." It was on this issue that the Judicial Committee remarked as follows: In their Lordships opinion, the latter part of the issue ought not to have been admitted; it was absolutely inconsistent with the case made by the plaintiff; it only becomes possible on the assumption that the alleged cause of action is unfounded.

(3.) The ground on which it was held that the question of undue influence should not have formed part of the issue, was that it was not only not part of the plaintiff's case, but actually inconsistent with the case set up by her. The head-note to the report, however, is very comprehensive and goes beyond the actual decision of the Judicial Committee, inasmuch as it lays down that, where a plaintiff sets up forgery and undue influence, both these questions cannot be tried in the same suit. The decision of the Judicial Committee, therefore, cannot be treated as an authority for an inflexible rule of law that, inconsistent claims or defences cannot be set up by the same party in the same litigation. In fact, there is a considerable body of authority for the contrary proposition, amongst "which reference may be made to the cases of Ameeroonissa Bibi V/s. Woomarooddeen Mahomed Chowdhry 14 W.R. 49 Lahshmi Bai V/s. Hari 9 B.H.C.R. 1 Ningappa V/s. Shivappa 19 B. 323 and Narayana Sami V/s. Rama Sami 14 M. 172 The decisions, however, are, by no means, uniform, and, although it has never been seriously disputed that on the same basis of facts two distinct and inconsistent titles may be put forth [Chova V/s. Isabin 1 B. 209, it has been sometimes denied that inconsistent assertions of fact can be permitted either in the plaint or in the written statement [Iyyappa V/s. Rama Lukshmamma 13 M. 549]. The question was considered recently by a Full Bench of this Court in the case of Narendra Nath V/s. Abhaya Charan 4 C.L.J. 43 : 34 C. 51 : 11 C.W.N. 20 : 1 M.L.T. 364 where it was ruled that inconsistent claims, for instance, a right of ownership, and in the alternative a right of easement can be set up by the plaintiff. Sir Francis Maclean, C.J., observed that the rule thus laid down was in accordance with that of the Courts in England. The rule, as applied in the English Courts, is to the effect that either party may, in a proper case, include in his pleading two or more inconsistent sets of material facts, and claim relief thereunder in the alternative. Thus a plaintiff may rely upon several different rights alternatively, although they may be inconsistent [Phillips V/s. Phillips 4 Q.B.D. 127 at p. 134. and Child v Stenning 5 Ch. D. 695 : 46 L.J. Ch. 523 : 36 L.T. 426 : 25 W.R. 519]. Similarly it was ruled by Thesigor L.J., in Berdan V/s. Greenwood 3 Ex. D. 251 : 47 L.J. Ex. 628 : 39 L.T. 223 : 26 W.R. 902 that a defendant may raise, by his statement of defence, without leave, as many distinct and separate, and, therefore, inconsistent defences as he may think proper [see also Hawhesley V/s. Bradshaw 5 Q.B.D. 302 : 49 L.J.Q. B. 333 : 42 L.T. 285 : 28 W.R. 557 : 44 J.P. 473.]. In the case of In re Morgan 35 Ch. D. 492 : 56 L.J. Ch. 603 : 56 L.T. 503 : 35 W.R. 705 it was further ruled that a pleading is not embarrassing merely because it contains inconsistent averments, though whenever such alternative oases are alleged, the facts belonging to them respectively ought not to be mixed up, but should be stated separately so as to show on what facts each alternative relief is claimed [Dauy V/s. Garrett 7 Ch. D. 473 at p. 489]. As Lord Justice Lindley puts it: "a person may rely upon one set of facts if he can succeed in proving them, and he may rely upon another set of facts if he can succeed in proving them;" and it appears to me to be far strict a construction of the order, (Order XIX, Rule 4 of the Rules of the English Supreme Court, which corresponds to Order VI, Rule 2 of our Code of 1908), to say that he must make up his mind on which particular line he will put his case. One of two inconsistent defences may be struck out as embarrassing or oppressive to the other side, though the statement that no inconsistent pleading can be pleaded was not warranted by the rules, and was contrary to the established practice of the Courts. [See also observations of Lord Cranworth in Hickson V/s. Lonbard L.B. 1 H.L. 324 at p. 336 referred to with approval by the Judicial Committee in Guthrie V/s. Abool Mozuffer 14 M.I.A. 53 at p. 66 : 7 B.L.R. 630 : 15 W.R. (P.C.) 50]. As an illustration of the Rule, it may be pointed out that a plaintiff has been allowed to sue for the cancellation of a bond on the ground that it was a forgery, or in the alternative, that it was void for want of consideration [Jino V/s. Manon 18 A. 125]. Similarly, a plaintiff has been allowed in the same suit to prefer a claim to have a partnership agreement with the defendant cancelled on the ground that he was induced to enter into it by the fraud of the latter, or in the alternative, for dissolution of partnership and accounts [Bagot V/s. Easton 7 Ch. D. 1 : 47 L.J. Ch. 225 : 37 L.T. 369 : 26 W.R. 66]. In view, therefore, of the authorities mentioned and specially of the decision of the Full Bench in the case of Narendra Nath V/s. Abhaya Charan 4 C.L.J. 43 : 34 C. 51 : 11 C.W.N. 20 : 1 M.L.T. 364, we are constrained to adopt the rule that it is open to a defendant to raise by his written statement as many distinct and separate, and therefore, inconsistent defences as he may think proper, subject only to the qualification that if the defence is embarrassing, the Court may, under Order VI, Rule 16, direct one of two inconsistent defences to be struck out and the pleading amended. In the case before us, there was in the written statement of the defendant a denial of execution of the bond. The language was not free from ambiguity, and there might be room for discussion whether the defence was intended to be merely a denial of execution or in addition thereto a denial of intelligent execution without adequate independent advice. When the evidence came to be adduced, the defendant was allowed, without any objection on the part of the plaintiff, to go into both these matters; she and her witnesses were examined and cross-examined, not merely upon the question whether she had executed the document, but also upon the question of the surrounding circumstances at the time of the alleged execution. Under these circumstances, it is too late for the plaintiff to raise any objection on the ground that the defences put forward were inconsistent and on this ground to seek to oblige her to make an election at this stage of the case. Indeed, it is worthy of note that in the case of Mahomed Bukhsh Khan V/s. Hosseini Bibi 15 I.A. 81 : 15 C. 684, their Lordships of the Judicial Committee, examined the question, not merely of the genuineness of the document, but also of its alleged execution under undue influence. We must, therefore, consider the present case from the point of view of both the objections urged by the appellant.