P L D 1963 Supreme Court 553 (PLP)

B. Z. KAIKAUS, J.‑The property in dispute in this appeal by special leave which consists mainly of agricultural land was admittedly in the possession of one Moosa Khan of village Deh Mohabat Wah, Taluka Khairpur at the time of his death which occurred on the 20th September 1951. After his death disputes with respect to the right to succeed to this property arose between parties who were all plaintiffs in the present suit. Plaintiffs 1 to 3 i.e., Budho, Palio and Ganhwar claimed the right to inherit the property of the deceased on the ground of relationship. At the same time three Wills were alleged to have been executed by the deceased on the 15th November 1928, the 19th August 1946 and the 2nd August 1951, respectively. The first of these Wills was in favour of plaintiff No. 1 i.e. Budho alone, the second was in favour of plaintiffs Nos. 1, 2 and 4 i.e., Budho, Palio and Mst. Saodan and the third was in favour of plaintiffs 2, 3 and 5 i.e., Palio, Ganhwar and Mundhoo. As there was a dispute with respect to possession the Police sent up a case under section 145, Cr. P. C. before a Magistrate who ordered that during the pendency of the proceedings the property should remain in the possession of a Receiver. Ghulam Shah who is the sole defendant in the present suit put in an application before the Magistrate who was hearing the proceedings under section 145, Cr. P. C. for being made a party on the ground that he was in possession. He was in fact made a party. His plea was that the land in dispute belonged not to Moosa Khan, but to his own maternal grandfather Bijar Khan and that this land had been handed over by Bijar Khan to Moosa Khan in trust for the daughter and maternal grand‑son of Bijar Khan. The Magistrate held that the land was in possession of Ghulam Shah defendant. A revision filed against this order by the plaintiffs before the Sessions Judge failed. The High Court was then moved and the High Court directed the appellants to establish their title in a Civil Court. While the proceedings under section 145, Cr. P. C. were pending a compromise had been arrived at between all the five plaintiffs at the instance of one Haji Mir Ghulam Hussain by virtue of which the plaintiffs agreed to be henceforth the owners of the land in dispute in shares specified in the plaint. The plaintiffs then filed the suit out of which this appeal arises for possession of the land in dispute against Ghulam Shah defendant. They alleged in the plaint that three of them i.e., plaintiffs 1 to 3 were relatives of the deceased Moosa Khan and, therefore, entitled to inherit his property. They went on to state that the deceased had also executed three Wills on three different dates in favour of three sets of persons. They then mentioned the settlement that had been arrived at between the plaintiffs during the proceedings under section 145, Cr. P. C. in accordance with which the land was to be owned by all the plaintiffs in specified shares It was also stated in the plaint that plaintiffs were in possession of the land in dispute and had been illegally dispossessed by the defendant who was a trespasser. The reliefs claimed in the plaint were (i) declaration that the plaintiffs were lawful heirs and owners of the property in dispute (ii) possession; and (iii) mesne profits. The defendant denied that the land in dispute belonged to Moosa Khan and alleged that Moosa Khan was only a trustee of the land in dispute, the defendant and his mother being the beneficiaries. With respect to the Wills the defendant said that they were forged and invalid. The validity of the family settlement alleged in the plaint was also denied. Some legal objections were taken and as a result the following issues were framed (1) Is the suit not in proper form? (2) Is the suit bad for misjoinder of the plaintiffs? (3) Is the suit bad for misjoinder of the contradictory causes of action? (4) Is the plaint not properly stamped and is the suit property under‑valued? (5) Is there no cause of action? (6) Are the provisions of the D. A. R. Act applicable to this suit? (7) Whether the plaintiffs are the heirs and relations of deceased Moosa Khan and whether the pedigree shown by the plaintiff is correct? (8) Does the suit property belong to Moosa Khan? (9) Who had been in possession of the suit property after the death of deceased Moosa Khan? (10) Are the Wills, alleged by the plaintiffs, left by deceased Moosa Khan ? Whether they are genuine and have any legal force ? (11) Who was Bijar Khan, who are his heirs and how are they connected with the present suit? (12) Was there any family settlement between the plaintiffs and has it 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 their effect on this suit? (16) What are the mesne prots of the suit land? (17) What should the decree be ? The suit was heard by Mr. Ghulam Hussain S. Ansari, a First Class Sub‑Judge at Khairpur. Apart from the legal issues the contest before the Sub‑Judge appears to have been mainly on the question as to whether the property was owned by Moosa Khan or Bijar Khan for after disposal of the legal issues he dealt only with the question as to whether the property belonged to Moosa Khan or Bijar Khan and having come to a finding that it belonged to Moosa Khan he decreed the suit without going into the other issues. An appeal was filed against this decision by the defendant and by consent of parties the District Judge who heard the appeal made an order for remand with a direction that findings be recorded afresh on all the issues in the suit. Mr. Ali Muhammad V. Akhund, the successor of Mr. Ansari after remand held that the property in dispute was owned not by Bijar Khan but by Moosa Khan. On the issue as to relationship of the plaintiffs with Moosa Khan he found that none of the plaintiffs was proved to be related to the deceased. On issue No. 10 the last of the three Wills was held to be genuine the plaintiffs not having made any attempt to prove the other Wills. The family settlement, it was held, had no effect on the suit. The suit was decreed only to the extent of 3rd of the property in dispute on the ground that under Muhammadan Law a Will could he made only in respect of 1/3rd of the property and with respect to the remaining 2/3rd, the Sub‑Judge held that it was to go to the Government by escheat. The legal objections to the suit were all disposed of in favour of the plaintiffs. Both parties appealed to the District Judge. At the hearing of the appeals the parties agreed that the District Judge should decide the following points (l) Were the three Wills, alleged, left by Moosa Khan. Whether they are genuine and have legal force. (2) Whether Budho, Palio, Ganhwar, Mundhoo and Mst. Saodan were heirs of Moosa Khan. (3) Whether they can claim under the Wills and can this plea be allowed. (4) If the property belonged to Moosa Khan or Bijar Khan. (5) Whether the facts alleged by Ghulam Shah that Moosa Khan was entrusted with the property by Bijar Khan and that he returned the property and parwana to Ghulam Shah are true. If so what is the effect. (6) Whether the joinder of the Deputy Commissioner is necessary in the Appeal No. 30 of 1958. The District Judge found that the Wills were all genuine, that the property belonged to Moosa Khan and not to Bijar Khan and there had been no entrustment of this property by Bijar Khan to Moosa Khan. The Deputy Commissioner was found not to be necessary party. With respect to the question whether three of the plaintiffs were heirs of the deceased, the District Judge observed that they had not taken this point in the grounds of appeal before him and, therefore, he would not allow them to agitate it. Although the District Judge found on facts in favour of the genuineness of the Wills, he was of the opinion that the suit was based not on the Wills but on simple inheritance. On this finding alone he dismissed the suit. The plaintiffs filed an appeal against the judgment of the District Judge in the High Court and the High Court agreed that the suit was not based on the Wills and the judgment of the District Judge was upheld. Leave to appeal had been granted in this case because it appear that a person who had according to the findings of the Courts below no right to the property in dispute had been left in possession of it in the face of the fact that Moosa Khan deceased who was admittedly the owner of this property had made some Wills the genuineness of which was accepted and in which there was a recital as to the relationship of the deceased with three of the plaintiffs. The main question for decision in this appeal is whether the refusal of the District Judge as well as the High Court to decree the suit on the basis of the Wills in spite of a finding as to the genuineness of Wills was justified on account of the fact that the plaintiffs had failed to base their claim on the Wills. As already observed the plaintiffs had stated in the plaint that the deceased had made three Wills. In three separate paragraphs each relating to one Will they had given particulars of the Wills all of which had been registered. They had then stated the dispute which arose between the plaintiffs some of whom claimed as relatives of the deceased and some on the basis of Wills. They had then referred to the family settlement. In the end they had stated that they were "as a matter of law and fact the owners of property in dispute and were legally entitled to its possession". An issue had been framed with respect to the genuineness of the Wills and evidence had been led on the issue. The trial Court had after remand decided the suit on the basis of the last Will. On these facts prima facie there does not appear any good reason for precluding the plaintiffs from claiming the property of the deceased on the basis of Wills as against the F trespasser. However, two Courts have agreed to dismiss the suit on the ground that claim was not based on the Wills and it is necessary to examine their reasonings with some care. The District Judge was of the opinion that an exhaustive study of the plaint would lead to the conclusion which he arrived at. The following extract from his judgment contains the whole of the reasoning on this point . Plaint para. 4 mentioned that Budho and others are the only heirs and relations of Moosa Khan. Para. No. 5 said that according to law and facts Budho and others were entitled to possess the property left by deceased Moosa Khan. Paras. Nos. 6 and 7 mentioned the properties left by Moosa Khan. There was reference to the three Wills under paras. 8 to 10 of the plaint. Paras. 11 to 16 referred to 145, Cr. P. C., proceedings. Paras. Nos. 17 to 18 referred to arbitration and family settlement. Tara. No. 20 mentioned that Ghulam Shah had no legal and lawful claim to the property of deceased Moosa Khan. Para. No. 21 again definitely said that Budho and others are the owners of the property. Paras. 22 and 23 referred to cause of action and court‑fee stamps. The relief clause mentioned that Budho and others be declared lawful owners of the property. 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 Palio and others hive 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. 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 finding therefore is that Budho and others cannot be permitted to claim under the Wills in the present suit." The District Judge has not referred to any particular statement in the plaint which may support the conclusion that the plaintiffs were not suing on the Wills and regards this as an effect of the reading of the plaint as a whole. He has, however, relied on the fact that the plaintiffs claimed as "heirs" and "owners". He was also of the opinion that the Wills were mentioned in the plaint in order to prove the relationship of the plaintiffs to the deceased. He has not explained why he made this inference and in this connection it will be proper to observe that there was nothing in the plaint showing that there was any recital in any Will as to the relationship of the plaintiffs with the deceased. The grounds on which High Court agreed with the District Judge will appear from the following extract from its judgment A perusal of the allegations 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 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 pleading 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 slightest 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, there fore, 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 appellant to change their case and to claim relief on a right which was not the basis of the suit The High Court appears to be of the opinion that the plaintiffs were basing, their case on inheritance and the family settlement. The family settlement it should be clear was of no avail at all against the defendant. It could not be a source of title as against the defendant although it may have been of binding force in a dispute between those who were parties to the settlement. The Sub‑Judge had found that the family settlement was irrelevant and that was the correct legal position. The High Court made an inference of abandonment by the plaintiffs of their right on the basis of Wills from two facts, the first being that they had claimed as heirs and the second that they had reached a settlement between them. Neither of these facts was, in our opinion, sufficient to show that there was an abandonment of the rights based on Wills. When a person makes a statement of a fact in the plaint he is entitled to rely upon that fact in support of the relief which he claims and it is not necessary for him to say in the plaint in so many words that he relies upon it. Order VI, rule 2, of the Civil Procedure Code provides‑ "R.

2. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures." It is not necessary for a plaintiff to state in the pleadings the legal effects which flow from the facts that he alleges. He is bound to state the facts and is confined to a statement of facts. He is presumed to rely upon all the facts which he states in the plaint, because according to the rule quoted above he is to state the material facts on which he relies. Of course, it is open to a party to give up in relation to a particular suit or proceedings the right which accrues to him from a particular fact, but such an abandonment is to be established beyond all doubt and cannot be infered from the mere fact that the plaint contains other facts from which too the same legal right flows. On a proper reading of the plaint in the present case the inference should be that the plaintiffs have placed before the Court all the facts which were relevant whatever the legal effects of those facts and then on the basis of those facts have asked for certain reliefs. By what process those reliefs flow from the facts alleged it was not necessary to explain in a plaint which is to contain by law only facts. It may be observed here that on the basis of relationship only three of the plaintiffs were entitled to succeed to the deceased, two of them being so entitled only on the basis of the Wills. The substance of the plaint is that some of the plaintiffs are related to the deceased, others have Wills in their favour, they have now settled the matter between themselves, and as against a trespasser they are entitled to a decree because it is some of them who are entitled to the property in dispute and the shares in which they hold the property is not a matter which is the concern of the defendant. Even on a general consideration of the plaint it would not be a reasonable conclusion that there had been an abandonment of the right based on Wills, but there were in addition a number of facts which should have prevented the Courts below from giving effect to the plea that the suit had not been based on the Wills. An issue as to the genuineness of the Wills had been framed. Evidence on this issue had been led and neither at the time of framing the issues nor when evidence was led was there any objection raised by the defendant that this was not a matter relevant to the suit. On the other hand there was an objection in the written statement that the suit was bad for joinder of contradictory causes of action. This apparently referred to both relationship and Wills or it may have referred even to the settle ment though that is improbable because the settlement could give no cause of action as against the defendant. On the basis of the objection as to misjoinder issue No. 3 had been framed. When the suit was remanded by the District Judge with the consent of both the parties, it was agreed between the parties that the decision was to be on all the issues framed, i.e., the defendant expressly agreed that the issue as to the Wills should also be decided. After remand the trial Court decreed the suit on the basis of the Wills to the extent of 3rd of the property and no objection was taken at the time of the argument before the Sub‑Judge that the suit could not be based on the Wills for there is no mention of any such objection in the judgment of the Sub -Judge. We have found no variation of the case as originally put forward in the plaint but even if there were some variation it would, considering the circumstances, have been ignored. Questions relating to variation of a case are to be decided on grounds of notice and prejudice. If the other party has notice of the variation and is not in any way prejudiced by it the variation is permissible. Of course this does not mean that one cause of action can be substituted by another, but in respect of the cause of action on which a suit is based the Court is not debarred from permitting variation if there be no prejudice to the opposite‑party. In the present case it is obvious that the defendant had full notice of the case of the plaintiffs based on the Wills. There was an issue framed, evidence had been led and there are other circumstances which show that the defendant was not objecting to the case based on Wills. The defendant had full opportunity of rebutting proof of the Wills. It may be stated here that the Wills were all registered documents one of them being of the year 1928 and that the defendant had in a previous statement accepted the genuineness of the Wills. Even if one of the Wills was genuine the defendant was not entitled to retain possession of the property in dispute. There are observations in the judgment of the High Court which show that they regarded the right based on the Wills as inconsistent with the right based on inheritance. The learned Judges relied upon the following passage in a Madras case :‑ "Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the incon sistency no longer open to him." At another place the learned Judges said: "there is no doubt that the rule of secundum allegata et probata is not strictly applied in respect of pleadings in this country; but 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." It is to be explained in the first place that there is no inconsistency between a case based on a Will and a case based on inheritance. No objection on the ground of incon sistency can be taken because a number of facts are alleged all of which can be the source of rights of the plaintiff even if the assumptions of those facts or transactions be not consistent with each other. A person may state‑ (i) that as a matter of fact he was himself the owner of the property by purchase from a person who laid claim to it though it stood in the name of another; (ii) that he was a nephew and an heir of the deceased in whose name the property stood; (iii) that the deceased had made a Will in his favour ; and (iv) that the deceased had during his life made a sale of the property to him. The assumption of the Will, the right of inheritance and the sale is that the deceased owned the property in dispute and this is not consistent with the plea that the plaintiff himself was owner of the property by purchase from a rival claimant, but there is no objection at all in law to a plaintiff relying upon all the above mentioned facts as sources of his title. There is no bar to a person relying upon more than one alternative source of title. An alternative case should be distinguished from an inconsistent case. No two facts can be said to be inconsistent with each other if both could have happened. The test of inconsistency between two facts would be that a plaint which contains both the facts could not be verified as true by a plaintiff: If for instance the plaintiff alleges a document to be a forgery and at the same time states that the execution by him of the document is the result of undue influence, the pleas are inconsistent with each other and a plaintiff cannot verify both the statements of facts as true. In the case before us the two alleged inconsistent facts are only the Will and the relationship. There is obviously no incon sistency between the facts themselves. When a party puts forward more than one source of his title he is not taking up an inconsistent position. He is only pleading in the alternative. In respect of the above extract from the judgment of the High Court three more observations are needed. The first is that the High Court has regarded the principle of secundum allegata el probata as applicable to the circumstance of this case. The principle only means that a fact has first to be alleged by a party in the pleading before it is allowed to be proved. But there it had been alleged in the plaint that the deceased had made Wills. Even the particulars of the Wills had been given. The second observation called for is that the High Court had itself accepted the principle that a new plea can be allowed if it would trot pause any prejudice to the opposite‑party. Although the High Court accepted this it did not advert to the fact that an issue had been framed with respect to the Wills and the defendant had been allowed to lead evidence to disprove the Wills. The learned Judges of the High Court did say that the defendant may have been misled by the fact that the suit was based on inheritance and may not have insisted on strict proof of the Wills and may not have fully cross‑examined the witnesses produced, but the defendant never made any such complaint. He never said that he had on account of a mis apprehension not led any evidence as to the Wills or that he wanted a fresh opportunity with respect to disproof of the Wills. In fact when the trial Court heard arguments on the question of Wills he fully argued the matter without objection. The learned Judges have also relied upon the observations reproduced above from an Indian case wherein it was said that "if the party has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other right." But the learned Judges have not referred to any such unequivocal act. There was another aspect of the matter which was ignored. Even if the suit was not based on the Wills it could not have been dismissed on this finding alone. The suit was based not only on ownership but on previous possession which had been distinctly alleged in the plant. In the plaint it had been stated that the plaintiffs had been dispossessed by the defendant. On this point there was even a finding in favour of Mundhoo plaintiff by the trial Court. In fact in the appeal before the District Judge this finding had not been challenged at all by the defendant for it was not one of those points which he was called upon to decide by the consent of parties. A person in possession of land has a good title against the whole world except the person with title. The plaintiffs, therefore, could not have been non‑suited unless the finding given by the trial Court that Mundhoo plaintiff was in possession was set aside by the High Court. As this finding had not been challenged at all before the District Judge, it was prima facie not liable to be disturbed by the High Court at all. We have come to the conclusion that the plaintiffs were entitled to base their claims on the Wills. There is no dispute now that on the basis of the Wills the plaintiffs would be entitled not to 1/3rd of the property decreed but to the whole of it because it is only an heir of a Muslim who can object to the whole of the property passing to the legatee under a Will. If there be no heirs the legatee takes the whole of the property and no part of it passes by escheat to the State. Some of the plaintiffs are entitled to the whole of the property in dispute. As a matter of fact it is only the last Will which is to be given effect to and that Will is in favour of three plaintiffs and in the absence of any other consideration the decree should have been in favour of those three plaintiffs. However, the plaintiffs who are entitled to the property are accepting the rights of those who are not so entitled, and as between the plaintiffs there is a family settlement which binds them all. The defendant is not interested in the question as to which of the plaintiffs should be granted a decree and he has not taken any objection on this score. Under the circumstances it will not be improper to award a decree in this case not to three of the plaintiffs, but to all of them. The decree and judgment of the High Court is, therefore, set aside and the plaintiffs are awarded a decree with costs throughout as prayed for in the plaint, the mesne profits to be determined by the executing Court. A. H. Order accordingly.