1. These appeals are tne off-shoots of the decision of this Court in S. A. No. 182 of 45-46 which arose out of _a suit filed by the Respondent for a declaration of his right to and possession of the plaint schedule properties and in the alternative for a decree for sale on the foot of a mortgage deed marked Exhibit J. The facts which are not in dispute are fully stated in the judgment of that appeal and need only be briefly referred to, to appreciate the points in controversy.
2. The lands involved in this litigation formerly belonged to the family of one Venkata Rao and his sons. One of the sons of the said Venkata Rao filed a suit for partition of the family properties and during the pendency of the appeal preferred against the decree of the trial Court in that suit, a settlement appears to have been arrived at between the members of the family on the one hand and the creditors on the other. The terms of the settlement were embodied in a document styled composition deed dated 1-7-1934, by which certain properties of the family are said to have been given to the respective creditors in discharge of their claims. One of such creditors was Chikka Nagappa and sons to whom monies were due under three separate deeds of simple mortgage for satisfaction of which the suit properties besides others are said to have been absolutely transferred. Subsequent to the mortgages in favour of Chikkanagappa these properties were mortgaged with possession to P. S. Rama Rao. Defendant as assignee of this mortgage is in possession of the properties. The plaintiff as transferee from Chiknagappa sued defendant for possession of the properties, alleging that the mortgage debt of Rama Rao was satisfied by the composition deed and plaintiff was owner thereof. As an alternative to this relief, he claimed payment of the amount due under one of the three simple mortgage deeds Exhibit J executed in favour of Chikkanagappa. The defendant contended that the composition deed cannot be treated as a conveyance and, in any case, since Rama Rao did not consent to the composition it does not affect his rights under the possessory mortgage. Rejecting these contentions the trial Court granted a decree for possession. The learned Subordinate Judge, on appeal, dismissed the suit in toto but this Court disallowed the claim for possession of the properties on the view that Rama Rao was not bound by the composition and as such the defendant as assignee of the mortgage was entitled to be in possession of the properties but granted a decree with respect to the simple mortgage under Exhibit J by directing sale of the properties now in dispute in the event of the defendant not making payment of the amount to be fixed under Section 82 of the Transfer of Property Act by taking into account the amount due under the mortgage deed and the value of the suit properties and of others which were subject to the mortgage. In pursuance of this direction, the learned Munsiff held that the amount recoverable from the suit properties is Rs. 1073/- and this is confirmed in appeal. The defendant has preferred S. A. No. 6 of 49-50 questioning the correctness of the amount fixed.
3. The other appeal R. A. No. 154 of 48-49 arises from a suit filed by the same plaintiff subsequent to the decision in the former second appeal for redemption of the mortgage effected in favour of Rama Rao and now assigned to the defendant. The plea of the defendant inter alia was that the suit was not maintainable by virtue of the claim and the decision in the former suit. The learned Subordinate Judge decreed the suit and the defendant has as in the other case appealed.
4. There is thus a decree for sale in one and a decree for redemption in another suit, the parties and properties relating to both being the same. Apparently both decrees cannot be given effect to as enforcement of one may render the other futile and unnecessary. If the properties are sold, redemption is not possible. If redemption is allowed, sate is not called for, as it is tantamount to plaintiff getting his own property sold for money due to him. The learned Subordinate Judge does not seem to have noticed the incongruity and conflicting features of the situation but Sri Laksh-minaranappa, learned counsel for the plaintiff respondent, recognising these, expressed that plaintiff is satisfied if the decree for redemption is upheld. Sri Subba Rao on behalf of the Appellant argued that the decree for sale has become conclusive and that being so, the decree for redemption is legally unsustainable. The question therefore to be determined is as to which of the two decrees is to stand and which has to be set aside.
5. The plaintiff himself does not allege that the decree for sale which has become final is ineffective for any reason or that he has given up his rights under it. The only ground on which its executability is sought to be avoided is that decree for redemption is passed in a subsequent suit. It is curious that the person seeking this is the person who applied for and obtained the decree. Apart from this, the ground must disappear if the relief of redemption could not be granted in the later suit and the decree is not warranted.
6. To avoid multiplicity of suits, Rule I of Order 2 of the Code of Civil. Procedure requires that a suit should be so framed as to afford ground for final decision upon the subjects in dispute and prevent further litigation concerning them. Rule 2(3) states: 'A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted.' Sri Lakshminaranappa contended that the only question in the earlier suit was whether the mortgage to Rama Rao was subsisting and there was no consideration of anything relating to equity of redemption. He also argued that since the mortgage amount was beyond the pecuniary jurisdiction of the Munsiff's Court in which the first suit was filed, the doctrine of res judicata cannot apply to the suit now filed in the Court of the Subordinate Judge. The arguments advanced are plausible but cannot prevail.
7. It is not shown that apart from the composition deed there is any basis for the respondents to urge a right to redeem the defendant's mortgage. The deed recites that in settlement of certain debts the suit properties and some others were given to respondent's transferor. Relying on this the plaintiff claimed in the first suit to be the owner of the properties and as such entitled to possession thereof. Anticipating the contingency of Rama Rao's mortgage being an impediment to his getting possession as owner he put forward an alternative claim on the foot of the prior mortgage and not a claim by virtue of his being owner to redeem Rama Rao's mortgage in the event of its being found to be subsisting. In short, he wanted possession if possible without liability for any payment on his part or else recovery of the money due under a prior mortgage, alleging ownership for the purpose of the primary relief and to be the mortgagee as regards the alternative claim. He could claim the latter relief as Section 101 of the Transfer of Property Act enables a prior mortgagee to enforce his rights as such when it is to his advantage notwithstanding the fact of his having become the owner of the mortgaged properties.
8. Cause of action as has been pointed out in several cases means the. facts necessary to be proved if traversed by defendant, for the plaintiff to succeed in his claim. All the facts and circumstances on the strength of which plaintiff now seeks redemption are exactly the same as those which existed at the time of the former suit. Having availed himself of the advantage of the exception to the rule of merser under the section the plaintiff now assumes the position of owner to insist upon defendant submitting to redemption. I do not think that plaintiff can be allowed to adopt this course now. The plaintiff set up two rights in the first suit one as owner and another as a prior mortgagee. He could not as prior mortgagee enforce redemption of defendant's mortgage, the rule being 'Redeem up, foreclose down', but there was no hindrance to his seeking redemption in the capacity of owner. As was pointed out in 'GOVIND HARI v. PARASHHAM MAHADEO', 25 Bom 161:
'Section 43 (replaced by Order 2, R. 2 of the present Code) is directed against two evils: the splitting of claims and the splitting of remedies: If a man omits from his suit a portion of his claim he shall not afterwards sue in respect of it: if he omits one of his remedies he cannot afterwards pursue it.'
By his failure to seek redemption in the first suit, the plaintiff must be deemed to have abandoned or relinquished his claim with respect to it under Order II, Rule 2 of the Code of Civil Procedure. The plaintiff cannot escape this consequence because the suit for redemption has to be filed in a Court of higher pecuniary jurisdiction than that competent to try the suit for possession based on title or for sale in enforcement of the simple mortgage. This is a factor which has a bearing on the question of res judicata but does not take away the bar imposed by Order II, Rule 2, C. P. C. As observed by Pandalai J. in 'RAMA RAO v. VENKAYAMMA' : AIR1931Mad705
'Order 2, Rule 2 and Clauses 1 and 3 are not limited in their operation to cases where of two reliefs open to a plaintiff on the same cause of action both are cognisable by the same Court. They are operative even when those reliefs taken separately and alone would be cognizable in different jurisdictions.'
The fact that the reliefs were claimable in the alternative cannot prevent the application of the said rule. See 'RAM AUTAR v. SHANKAR DAYAL', AIR 1926 Pat 87 and 'HARNAM SINGH v. BHOLA SINGH', AIR 1921 Lah 309-The plaintiff ought to have asked for redemption in the first suit and filed it in a Court of competent jurisdiction to try it and he cannot be permitted to evade the operation of Order 2, Rule 2 by adopting a different course. Sri Lakshminaranappa has not cited any cases or referred to any statutory provision in support of the claim under circumstances such as those presented in this case. Instances of successive claims for redemption referred to by him are not of help as this is not a case of that kind but is a case in which redemption was not claimed at all though it was possible in a prior suit and the present claim is inconsistent with the relief which has bean obtained.
9. Another objection to the suit for redemption is that a party entitled to more than one relief cannot be allowed to shift his preference to one or the other from time to time. It seems to me that the respondent having made the choice and exercised the option of enforcing his right as mortgagee in preference to that of owner cannot now change his ground. Such voluteface would be nothing short of what is termed as 'blowing hot and cold' and the prin principle that a party cannot both approbate and reprobate applies to him. In 'GRETTON v. HAWARD', (1819) I Swan 409*, Plumber, M. R. observed
'The instances in which Courts of law have applied the maxim.....'He is not to be heard who alleges things contradictory to each other' are instances of 'inconsistent titles' whether to the same subject or different subjects, the assertion of one title being incomplete without a negation of the other. It is a maxim not of morality but of logic and compels elections between claims in respect not of the injustice, but of the technical impracticability, of their contemporaneous assertion.'
10. The sufficiency of the composition deed to convey titles was also disputed by the Appellant's counsel. It has to be noticed that debts running to thousands of rupees payable to several persons are settled in the deed by conferring on them rights of ownership on different items of properties and that if there were deeds of conveyance the stamp duty payable is far more than what is prescribed for a composition deed. If as contended for respondent the deed is effective in transferring rights of ownership to several persons in several properties it would be a cheap substitute for a number of sale deeds and the provisions of the Stamp Act for payment of duty on conveyances could be easily circumvented. Sri Lakshmi-naranappa learned Counsel for Respondent argued that in view of the recitals in the deed being clear and the deed being registered, the requirements of a sale are satisfied. In then appeal filed by the Appellants against the decree of the trial Court allowing the claim of respondent to be declared owner of the properties the learned Subordinate Judge held that the composition deed could not be construed as conveying rights of ownership and dismissed the suit. Notwithstanding the terms of the document and the fact of registration, I think, the question whether it can be relied upon as a completed sale of several properties in favour of several persons is open to doubt. Since the appeal is to be allowed for reasons already mentioned, there is no need to further deal with this.
11. I would therefore allow the appeal and dismiss the suit for redemption with costs throughout. Cross-objections are dismissed without costs.
12. S.A. 6 of 49-50: In S. A. No. 6 of 49-50 the only point for consideration is whether the amount which the two Courts have fixed as being recoverable from the suit properties is correct. For determination of the amount, the Courts below have relied on the agreement of parties, concerning the total extent of properties which should bear the liability for the mortgage debt and its market value. As some of the items are in possession of the plaintiff himself in pursuance of the composition deed, proportionate value of these has to be deducted from the mortgage debt and the balance only to be held recoverable from the items in defendant's possession. In estimating the value of properties in plaintiff's possession for this purpose allowance is made for the amounts payable under other mortgages in favour of the plaintiff and subtracting such amounts from the market value of these the remainder is taken into account: The Appellant contends that the prior encumbrances on the properties which are not included in the suit but which are subject to the mortgage should not have been taken into account while fixing the amount recoverable from the properties in the possession of the Appellant. Both Courts have held that this is not possible and Section 82 of the Transfer of Property Act prior to the Amendment which governs this case supports this view. HARI RAJ SINGH v. AHMAD-UD-DIN KHAN', 19 All 545 and 'GOPAL DAS v. DUR-GA SINGH', 38 Ind Cas 649 (All) are directly in point. In the former case it was held that
'In calculating the amount to which the plaintiff was entitled by way of contribution he was bound to take into account the liability which existed on most of the villages.....'
and in the latter as follows :
'The law as to rights under the two mortgages is very clearly set forth in Section 82 of the Transfer of Property Act. The liability of property A was to be ascertained by finding the value of property but from the value of property T should be deducted the amount of liability of property T under the earlier mortgage.'
Sri Subba Rao has not cited any case whichtakes a different view or drawn our attentionto any provision laying down a different principle. The second appeal is dismissed with costs.As a consequence of this the cross-objectionsfiled by the plaintiff are dismissed but withoutcosts.
13. Order accordingly.