1. This is an appeal by the plaintiff against the preliminary decree in a suit for partition of joint property. The decree has been assailed on two grounds, namely, first, that the lower Court has erroneously determined the share of the plaintiff; and, secondly, that the lower Court has made an incorrect order for costs in favour of the defendants.
2. As regards the first ground, it appears that the disputed property was, on the 10th September 1898, purchased at an execution sale for Rs. 6,130 by a person whom we shall call X. X had a brother Y who had four sons A, B, C and D. On the 7th November 1900, X conveyed a six-annas share of the property to his three nephews A, B and C. On the 14th June 1910, A transferred a two-annas share to the defendants on the assumption that he was, competent to deal with that share as one of the three brothers in whose favour the conveyance had been executed by X. On the, 6th October 1910, X, B, C and D conveyed fourteen-and-a-half-annas share to the plaintiff, namely, a ten-annas share held by X, and four-and-a-half-annas share claimed by B, C and D, on the hypothesis that the conveyance by X, though nominally in favour of A, B and G, had really benefited A, B, C and D. On the 23rd January 1911, the plaintiff commenced this action for partition on the allegation that he was entitled to fourteen-and-a-half-annas share of the property while the defendants were entitled to the remaining one-and a-half-annas share. The defendants answered that they had acquired a good title to a two-annas share by their purchase from A, and that the plaintiff was entitled to only fourteen-annas share.
3. The plaint, it may be observed at the outset, is singularly meagre; it does not narrate the history of the title of the plaintiff, nor does it mention the deeds whereby the title bad devolved on him, The defendants accordingly urged in their written statement that the plaintiff was not entitled to relief on a plaint so framed and was bound to disclose the details of his title. This contention was well founded, as the plaintiff was bound state the nature of the deeds on which he relies in deducing his title from the person under whom he claims and to show the devolution of the estate to himself: Philipps v. Philipps (1878) 4 Q.B.D. 127 : 48 L.J.Q.B. 135 : 39 L.T. 556 : 27 W.R. 436 Darbyshire v. Leigh (1896) 1 Q.B.D. 554 : 65 L.J.Q.B. 360 : 74 L.T. 241 : 44 W.R. 452 Davis v. James (1884) 26 Ch. D. 778 : 53 L.J. Ch. 523 : 50 L.T. 115 : 32 W.R. 406; for as Cotton, L.J., said in Philipps v. Philipps (1878) 4 Q.B.D. 127 : 48 L.J.Q.B. 135 : 39 L.T. 556 : 27 W.R. 436, it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial. This much the plaintiff is bound to do, though be need not set out the evidence whereby he proposes to prove the facts which give him the title: Williams v. Wilcox (1838) 8 A. & E. 314 at p. 331 : 3 N. & P. 606 : 1 W.W. & H. 477 : 7 L.J.Q.B. 229 : 112 E.R. 857 : 47 R.R. 595 Gautret v. Egerton (1867) 2 C.P. 371 : 36 L.J.C.P. 191 : 16 L.T. 17 : 15 W.R. 638. The Court, however, took no notice of the objection, and raised a comprehensive issue in these terms: What is the share of the plaintiff in the properly in suit.' The plaintiff was thus left free to nullify the salutary rule enunciated by Brett, L.J., in Philipps v. Philipps (1878) 4 Q.B.D. 127 : 48 L.J.Q.B. 135 : 39 L.T. 556 : 27 W.R. 436 that the parties should be held strictly to their pleadings and should not be allowed to prove at the trial any fact which is not stated in the pleadings. What the consequence has been, we realise when we come to examine the case on the merits. We find that the title alleged by the plaintiff is contrary to the tenor of the admitted deeds. On the face of the sale-certificate, X became the sole owner by purchase of the property in dispute. Under the conveyance executed by V in favour of A, B and 6, they became jointly interested in a six-annas share. After this transaction, a ten-annas share was left to X. Consequently, A was prima facie entitled to a two-annas share which he transferred to the defendant. B and C were entitled to a four-annas, while their uncle X had a ten-annas share; this they conveyed to the plaintiff, who thereby obtained a fourteen-annas share. D was apparently not entitled to any share at all. The claim of the plaintiff to a fourteen-and-half-arms share cannot consequently be sustained, unless it is established that these deeds do not represent the true state of facts. The plaintiff in his plaint has furnished no indication of the source of his title, nor does he afford a clue to the grounds, if any, upon which he challenges the admitted deeds. When we turn to the evidence, however, we find that he has attempted to develop two inconsistent cases. He called one of his vendors, namely, X to prove that X and Y, who were separate in food and estate, became joint owners of the property by purchase at the execution sale and that the consideration was furnished by them in the proportion of ten to six, though the purchase was made in the name of X alone. The witness added that thereafter Y took a conveyance from him in respect of a six-annas share in the name of his three major sons. X in substance repudiated the allegations he had solemnly made in the conveyance in favour of his nephews. On this basis, the plaintiff can succeed only if he proves that what purports to be A conveyance to A, B and C, is in reality a deed of relinquishment in favour of their father Y, and that upon the death of the latter, his four sons A, B, C and D have taken equal shares by right of inheritance. The plaintiff then called another set of witnesses, namely, his vendors B, C and D to contradict the allegations of X, on the hypothesis that the property was acquired by X alone and was transferred by him for consideration under the conveyance in the names of A, B and G either to Y or to A, B, G and B. The defendants found themselves in a position of embarrassment, when these contradictory allegations were sprung upon them, without any indication afforded in the plaint; hut fortunately, the testimony of one set of witnesses neutralised that of the other, and the Subordinate Judge held that the plaintiff had failed to prove his title to any share in, excess of fourteen annas. In our opinion, the plaintiff should not have been allowed to proceed on the plaint as framed; he should have been called upon to specify in his statement of claim, the nature of the deeds and transactions from which he deduced his title. The plaintiff, deliberately and for obvious reasons, departed from the well-recognised rule applicable to the matter; when the plaint was filed, he could not make up his mind which alternative to choose, and consequently left his case to be developed by his witnesses Now, it may be conceded that a plaintiff may in certain circumstances rely upon several different rights alternatively, though they may be inconsistent. This was recognised by the Full Bench in Narendra Nath Barari v. Abhoy Charan Chattopadhya 34 C. 51 : 4 C.L.J. 437 : 11 W.N. 20 (F.B.) : 1 M.L.T. 364 and is in conformity with the rule recognised in Philipps v. Philipps (1878) 4 Q.B.D. 127 : 48 L.J.Q.B. 135 : 39 L.T. 556 : 27 W.R. 436; Berdan v. Greenwood (1878) 3 Ex. D. 251 : 47 L.J. Ex. 628 : 39 L.T. 223 : 26 W.R. 902; Hawkesley v. Bradshaw (1880) 5 Q.B.D. 302 : 49 L.J.Q.B. 333 : 42 L.T. 285 : 28 W.R. 557 and In re Morgan, Owen v. Morgan (1887) 35 Ch. D. 492 : 56 L.J. Ch. 603 : 56 L.T. 503 : 35 W.R. 705. But as pointed out by the Judicial Committee in Mahomed Buksh v. Hosseini Bibi 15 C. 684 : 15 I.A. 81 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175, the plaintiff cannot be permitted to allege two absolutely inconsistent statements of facts each of which is destructive of the other, in the case before us, the plaintiff, it is true, did not make a definite case in the plaint but sought at the trial to develop two inconsistent cases on the testimony of two different sets of witnesses. The Subordinate Judge rightly held that the evidence was not reliable enough to establish either the one case or the other. He has pointed out that the evidence to show that the execution purchase, though made in the name of X, was for the benefit of both X and Y, is utterly untrustworthy. The two brothers at the time were separate. There is no independent evidence to corroborate the assertion of X that a proportionate part of the consideration was furnished by Y. Nor is there any trustworthy evidence to show that, after this purchase, Y obtained joint possession of the property along with X. There is, on the other hand, no tangible evidence to prove that the conveyance executed by X in favour of A, B and C was really a conveyance in favour of Y, or of A, B, C and D, It was suggested at one stage of the argument in the Court below, and that suggestion has been repeated in this Court, that the conveyance might possibly be treated as a deed of relinquishment. This theory is extremely improbable. If the parties really intended the document to operate as a deed of release, there is no conceivable reason why it should not have been described as such; it is inexplicable why recitals untrue in fact should have been deliberately inserted in the deed, and why a large amount should have been paid as stamp duty on the conveyance, while a smaller amount would have sufficed for a deed of release. We are clearly of opinion that the plaintiff has failed to prove that the deed of conveyance by X in favour of A, B and G was in reality other than what it purported to be. But the appellant has argued that as the parties in a suit for partition occupy the position of counter-claimants, it was incumbent upon the defendants to set up and establish their special case. There is plainly no force in this contention. The defendants had no occasion to meet any case alleged in the plaint, while the two alternative oases developed in the evidence were destructive of each other. The first ground consequently fails.
4. As regards the second ground, it has not been seriously disputed by the respondents that the order for costs is erroneous. The Subordinate Judge has allowed the defendants the full amount of Pleader's fees On the value of the suit. This order could not properly be made at the stage of the preliminary decree, when the matter in controversy related only to a half-anna share in the property valued at Rs. 320. We hold accordingly that the Pleader's fee in Court below should have been assessed at one gold mohur only and that the total costs allowed to the defendants should have been fixed at Rs. 42-1-9 instead of Rs. 376-1-9. Subject to this variation, the decree of the Subordinate Judge wilt he affirmed. The respondents are entitled to their costs in this Court. We assess the hearing fee at two gold mohwrs.