1. The sole question for determination in this appeal is one of law, namely, whether the present suit is barred' as res judicata on account of a previous judgment.
2. The facts involved in the point of law-are briefly these:
The respondent, who was the plaintiff in the Court of first instance, brought a. suit in the year 1917 against the defendant-appellant for the setting aside, inter alia, of a sale-deed, executed by her on the 13th of April, 1914, in favour of the-appellant. She said that the sale-deed was a fictitious one, that no title was meant to pass by it, that although it was on the face of it, for the sum of Rs. 2,000, she got no portion of the consideration, money, that her statement before the Sub-Registrar that she had received a consideration of Ra. 1,600 was false and that the sum of Rs. 400 that was actually handed over to her before the Sub Registrar, had been returned by her after the registration of the document was over. On these allegations, she sought cancellation of the sale-deed and also recovery of possession of the house.
3. The Court of first instance held that the sale was obtained in circumstances under which it was open to her to avoid it. But it also held that she had received a portion of the consideration money. A decree was accordingly made in favour of the plaintiff for recovery of possession of' the house on condition of payment of a certain amount of money. The plaintiff appealed and she contested the finding; that she had to pay anything at all. The learned District Judge, who heard the appeal, reduced the amount payable; by her but otherwise upheld the decree. By the final decree that was passed in the case, the plaintiff was ordered to pay a sum of Rs. 600 within a certain period of time, and it was further ordered that in case of default of payment, the suit should stand dismissed. The plaintiff failed to pay the sum of Rs. 600 and the result was that her suit for recovery of possession stood dismissed. Thereafter, the respondent brought the suit out of which this appeal has arisen, for the recovery of Rs. 1,400 being the balance of the purchase money, by the sale of the property sold. She evidently wanted to enforce what is known as vendor's lien over the property.
4. The defence, inter alia, was that the suit was barred as res judicata and this is the only point which we have to decide in this appeal.
5. Both the Courts have found against the defendant. In the various cases that have come before the Court from time to time the question of res judicata has been decided on the facts of each case. It would always be difficult to get a case exactly in point. The principle laid down, however, seems to be this, that where the subsequent claim, if added to the former claim, was likely to embarrass the trial of the suit or was likely to place the plaintiff in a false position, it would not be incumbent on the plaintiff to ask for the relief in the second suit along with the relief asked for in the earlier suit. For example, in the case of Mahomed Ibrahim v. Sheikh Hamja (1911) 35 Bom. 507 a suit was brought for redemption and it having failed, a second suit was brought in ejectment. It was held that the second suit was not barred as res judicata. Similarly, in Veerana Pillai v. Muthu Kumar a Asari (1904) 27 Mad. 102, a mortgagee brought a suit for sale and it was held that his mortgage was really an usufructuary one and he could not maintain a suit for sale. Then he brought a second suit for recovery of possession on foot of the same mortgage. It was held that the second suit was maintainable. In Mahandar Singh v. Janki Singh (1905) 2 A.L.J. 342, a suit was brought claiming, an entire property. It was dismissed, the Court having found that the parties were joint owners. The second suit of the plaintiffs, for a declaration that they were entitled to collect a half share of the rents from the land, was held to be maintainable.
6. It will, therefore, be seen from these cases that simply because the parties to both the suits are the same and some allegations common, it does not necessarily follow that a second suit brought by the same plaintiff should be held barred as res judicata.
7. Coming to the facts of the case. As already stated the plaintiff wanted a declaration that the sale was fictitious, that it was obtained from her by fraud and that she received not a single shilling out of the consideration money. Under the circumstances, the plaintiff could not very well say, in the same breath, that if the Court held the sale to be a genuine one, she should be given the sum of Rs. 1,400 as a part of the consideration money, she having received the balance.
8. The second 'ground of attack' would have been entirely inconsistent with her first case and any evidence that she might lead on the two contradictory cases was not at all likely to be accepted by the Court
9. We hold that in the circumstances of the present case the second suit is not barred as res judicata.
10. The appeal fails and is hereby dismissed with costs.