P L D 1962 (W (PLP)

(12) Was there any family settlement between the plaintiffs and has ft any bearing on this suit, if yes, with what effect ? (13) Has the defendant any legal right or title to the suit property (14) Are the plaintiffs entitled to any relief claimed by them ? (15) Were there any proceedings under section 145, Cr. P. C., in respect of the suit property. If yes, what is its effect on this suit ? (16) What should the degree be ? (17) What are the mesne profits of the suit land ? The suit was heard by Mr. Ghulam Hussain S. Ansari the then First Class Sub‑Judge, Khairpur, and decreed by judgment dated the 30th of October 1957. Respondent No. 1 challenged this judgment in appeal on the ground that the learned Subordinate Judge had not disposed of the suit on all the issues and the matter was remanded to the trial Court for decision on all the issues. The suit was then numbered as Suit No. 46 of 1958. Mr. Ali Muhammad v. Akhund, the then Sub‑Judge, First Class, Khair pur, after recording further evidence in the case, disposed of the suit by judgment dated the 30th of September 1958. The learned Subordinate Judge came to the conclusion that the property in dispute belonged to Moosa Khan and not to Bijar Khan. He held that the appellants were nor the heirs of Moosa Khan, but decreed the suit in favour of appellant Mundhoo and Gohar on the ground that deceased Moosa Khan had bequeathed 1 /3 of his property under the last will dated the 2nd of August 1951 to Mundhoo, Ganhwar and Palyo. According to the judgment, Palyo, appellant No. 2, is not the same Palyo mentioned in the will as one of the legatees. In respect of the remaining 2/3 property and the share of Palyo, the learned Subordinate Judge held that in the absence of any heir of the deceased, it was escheated to the Government. Both the appellants and respondent No. 1 challenged the findings in Civil Appeals Nos. 29 and 30 of 1958 before the learned District Judge, Khairpur. The learned District Judge did not accept the case of respondent No. 1 that the property in dispute belonged to Bijar Khan and on that basis it was given to him by deceased Moosa Khan. He found that the parwana in favour of respondent No. 1 was not in respect of the property in dispute. He agreed with the finding of the learned Subordinate Judge that the case set up by respondent No. 1 that deceased Moosa Khan gave him the parwana and the possession of the property in dispute was not proved on the record. He also agreed with the finding of the learned Subordinate Judge that the last will executed by Moosa Khan dated the 2nd of August 1951 was proved on the record but be accepted the appeal of respondent No. 1 on the ground that the appellants had not claimed the property in dispute on the basis of the last‑mentioned will but as heirs and on the basis of the alleged family‑settlement entered into on the inter vention of Sahibzada Haji Mir Ghulam Hussain Khan Talpur. According to the learned District Judge, as the appellants had failed to establish that they were the heirs of deceased Moosa Khan, the learned Subordinate Judge was not competent to decree the suit in favour of appellant Mundhoo and Mst. Sohdan on the basis of the last will of deceased Moosa Khan. The relevant portion of the observations of the learned District Judge in this respect is reproduced below "The reading of the whole plaint would show that Budho and others claimed property as relations and heirs of Moosa Khan. They did not claim the property under the wills. The perusal of the judgment of the lower Court shows that Palyo and others have been given property under the last will executed in 1951. I feel that the lower Court was wrong in doing it and the law on this point is practically settled." Later on the learned District Judge went on "A perusal of all these rulings would show that if a person claims property under one right, the Court cannot award it to him on the other right which is totally inconsistent with the first right. In the present case Budho and others claimed the property as heirs descended from the common ancestor. They made reference to the wills as ancillary documents, to prove the relationship. The Court therefore cannot grant them any relief under the wills which they did not seek in their plaint. My find ing therefore is that Budho and others cannot be permitted to claim under the wills in the present suit." The appellants have challenged the findings of the learned Subordinate Judge and the learned District Judge on the issues against them in this second appeal. At the hearing of the appeal, respondent No. 1 has raised two preliminary objections: firstly, that the appeal is time‑barred; and secondly; that an appeal against a portion of the decree is not maintainable. In support of the first objection the respon dent contended that the appeal should have been filed during the vacation as the Court cannot be considered to be closed during this period. In support of his contention the appellant, who argued the matter in person, referred us to a decision of the Bombay High Court reported in Dharamsi Morarji Chemical, Co. Ltd. v. Occhavlal Hargovandas Shah (A I R 1927 Bom. 480). In this decision it was held that according to the prevalent practice in the Bombay High Court, suits on the Original Side can be filed in the summer vacation and therefore the Bombay High Court Original Side is not closed within section 4 during the vacation. On the other hand, Mr. A. G. Talpur, the learned counsel for the appellants, has referred to a decision in Mian Abdul Aziz v. Dr. G. A. Chisty, (P L D 1959 Lah. 31). Kaikaus, J. in that case held that the High Court is deemed to be closed in the vacation for the purposes of civil business and that an appeal would be within time if it is filed on the opening of the High Court after the expiry of the vacation. He further held that under section 14(2)of the Limitation Act the period during which the High Court remained closed during the vacation will be excluded for comput ing the period of limitation for filing the appeal. The view taken by Kaikaus, J. is consistent with the view which is generally taken in this Court on the question of instituting proceedings in the High Court during the vacations. According to the notification issued, the High Court is closed for civil business during the vacation and therefore the view taken in the Bombay High Court is not applicable to the appeals filed in this High Court. This objection is over‑ruled. The second objection of respondent No. 1 has also no force. The respondent's argument is that the appellants have preferred the second appeal not against the decree of the lower appellate Court but against a portion of the judgment in disallowing them to set up a new case for obtaining the reliefs claimed by them in the plaint. This argument is fallacious inasmuch as it is no necessary for a party to file appeals in respect of those portions of the judgment which are in his favour. The aggrieved party always files an appeal against those portions of the judgment which are against him. In the present case the appellants have accepted the findings which are in their favour and have challenged those findings which are against them. This is permissible in law. It is not at all necessary for the appellants to attack those findings which are in their favour in the appeal. This objection therefore must fail. On merits, the learned counsel for the appellants has challenged 'the findings of the learned subordinate Courts on two grounds: (1) That the learned subordinate Courts were not justified in holding that in cases where a deceased has bequeathed his property and died issueless and without any heir the will operates only to the extent of 1/3 of his property under Muhammadan Law and not to the extent of the whole property and (2) that the learned first appellate Court was not justified in dismissing the appellants' suit on the ground that they had not based their claim under the wills. Respondent No. 1 on The other hand has not only contested the above‑mentioned objec tions but has also supported the decree of the first appellate Court on the ground that the appellants had failed to prove the genuine ness of the will and that the property in dispute really belonged to Bijar Khan and was handed over to him by Moosa Khan some time before his death. The first question for consideration in this appeal is whether the learned first appellate Court was justified in dismissing the suit on the ground that the appellants have not based their claim in the original suit on the last will alleged to have been proved before the learned subordinate Courts. I have already reproduc ed the observations of the learned first appellate Court in this connection. A perusal of the allegation made in the plaint leaves no doubt in my mind that the appellants have not based their claim on the basis of the wills executed in their favour by the deceased. On the other hand they have claimed the property in dispute as heirs of the deceased. They have further relied in support of their claim on the family settlement entered into by them on the intervention of Sahibzada Haji Mir Ghulam Hussain Khan Talpur dated the 18th of March 1952, under which the property in dispute has been given in definite shares to the appellants. Mr. Talpur contended that the question of the alleged will was specifically raised in the pleadings and an issue was also struck on this point. This is quite correct, but the important question for consideration is whether the appellants had based their claim under the alleged wills. There is not the sligh test doubt in my mind that the appellants have not done so. The impression which the plaint gives is that although some of the appellants in the beginning claimed the property in dispute under the wills but they had abandoned their right under It and have asserted their right as heirs and on the arrangement arrived at between them about the distribution of the property left by the deceased. It is, therefore, quite apparent that the appellants have deliberately given up their right under the wills. In such cases, in my opinion, it is not open to the appellants to change their cases and to claim relief on a right which was not the basis of the suit. Mr. Talpur, in support of his contention, has referred to the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad and others (A I R 1951 S C 177), and Ramayyan Gounden and another v. Pechi Ammal Koundarhi and others (A I R 1955 Trav. 134). In the first‑cited case the learned Judges of the Indian Supreme Court held that a plaintiff may rely upon different rights alternatively and there is nothing In the C. P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. It was further observed in that case that ordinarily the Court can not grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not admitted by the defendant in his written statement but was expressly put for ward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. In the second case also it was held that there is nothing in the case to prevent a plaintiff from basing his claim for relief in the suit on two alternative titles. It was observed in that case that:‑ "Where, therefore, a plaintiff claims recovery of possession of the property on the basis of two alternative titles, one as the legatee of her mother and the other as the heir of her father, it is a case of a party making two inconsistent sets of allegations in the plaint and claiming relief in the alternative and there is nothing to prevent her from doing so." But the principles of these cases cannot be applied to the facts of the present case. In this case, as already observed, though the appellants have alleged the factum of the wills, they have not claimed any relief on that basis in the alternative in support of their claim. In fact the allegation in the plaint shows that they have given up their right under the wills and confined their claim only as heirs of the deceased and on the basis of a private arrange ment entered into by them on the intervention of a respectable person of the locality. In my opinion, therefore, the appellants have, with full knowledge, done an unequivocal act indicating their choice of one of the two inconsistent rights and it is not open to them to change their front and ask for a relief on the basis of a right which they had already abandoned. In R. Samydra Vijay‑am Chettiar v. Srinivasa Alwar and others (A I R 1956 Mad. 301), on which the respondent has placed reliance, it was observed as under "Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicat ing his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him. Such cases do not require detriment to the other party as foundation for their application." This view is also supported by the decision of their Lordships of the Privy Council in Attorney‑General of the Colony of Feeji v. J. P. Baylay Ltd. (P I, D 1949 P C 274). In this case their Lordships observed that:‑ "Where, notwithstanding an objection taken by the defendant, the Judge proceeds, without any amendment of the pleadings, to consider a question which was not only in issue but which the plaintiff was by his own express admission precluded from argu ing and grants a declaration in favour of the plaintiffs on that basis the order is made without jurisdiction." There is no doubt that the rule of secundum allegeta et probata is not strictly applied in respect of pleadings in this country and there are certain well‑recognised rules under which only this rule is by passed. One of them is that an inconsistent case, not raised by way of alternative pleadings, can only be allowed if it would not cause any prejudice to the parties. In Hartram Serowgee v. Madan Gopal Begla and another (AIR 1929 PC 77), their Lordships did not allow a party to base his case on a different ground after he found that his claim on the first basis Is prejudicial to him. Their Lordships in this connection observed as under: "A party having claimed on basis of Investment in com mercial speculations cannot claim on another basis when he finds that the first basis is prejudicial to him." Similarly, In Raymond Lincoln v. Mrs. Alice Foupinel de Valence (AIR 1932 PC 95), their Lordships of the Privy Council did not allow a plaintiff in an action for damages for personal injuries from changing his claim from one ground of negligence to another ground of negligence. Their Lordships observed: "Moreover the plaintiff is not entitled to throw over the case of negligence which he has alleged and spoken to in evidence and then ask their Lordships to find negligence established on a quite different species facti. To permit this might work grave injustice to a defendant who had properly directed his evidence to the case which he had been told he bad to meet." It would be noticed that In this case respondent No. 1 has taken up the position that the wills referred to in the plaint are forged documents. In spite of this, the appellants for reasons known to them, failed to produce the original wills. The age of the deceased mentioned in the three wills cannot be reconciled with each other. In the last will (Exh. 1‑C) the age of the deceased Moosa Khan is mentioned as 60 years whereas In the will (Exh. 1‑B) dated 8‑3‑47 his age is shown as 70 years. Admittedly the age of the deceased on his statement (Exh. I‑F) dated 26‑7‑22 in the year 1951 be about 79 years. Appellants themselves before putting a united front were attacking wills in favour of each other as forged. In these circumstances It cannot be ruled out that respondent No. 1 on account of the fact that the appellants had not based their right on the alleged wills and had relied on them only for showing that they were the legal heirs or relatives of the deceased, might not have insisted on strict proof of the alleged wills. The cross‑examination of the respondent on this point is very meagre, and this may be for the above reason. Besides in the trial Court none of the appellants gave up their right as heir or under the family settlement. In these circumstances I entirely agree with the learned first appellate Court that the appellants on the facts of the present case cannot be allowed to fall back on the last will alleged to have been executed by the deceased as they had not based their right upon it in the original suit. On this view of the matter it is unnecessary to consider the question whether there is ample proof in support of the execution and validity of the last will alleged to have been executed by deceased Moosa Khan. It is also unnecessary to consider the points raised by respondent No. 1 that the property in dispute is covered by the parwana in favour of Bijar Khan produced by him in the trial Court or that he was also the legal heir of deceased Moosa Khan inasmuch as his maternal grandmother was related to the deceased. There is, however, no doubt that if the decree of the trial Court had been maintained, appellants 3 and 5, on the strength of the last will should have been awarded 2/3 of the property of the deceased. In Muhammadan Law, if a deceased leaves no heir, the will operates against his whole property and not to the extent of 1/3 property. This principle is now well‑established, and is not in need of any elaborate discussion. But as found above, the appellants concerned did not base their right to claim the property in dispute on the basis of the will in question. In these circumstances, the appeal must fail. In the result the appeal is dismissed with costs. Appeal dismissed.