1. This appeal is directed against a decree in favour of the plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof. The case for the plaintiff is, that the disputed property belonged to his maternal grandfather, Manyar Singh. Manyar Singh died many years ago and left a widow Rajrani Koer who died in 1867. According to the plaintiff, Manyar Singh also left two daughters, his mother Gangabati and her sister Sham Dasi, Gangabati died in 1886 and Sham Dasi in 1909. On the 8th May 1907, the plaintiff commenced this action for declaration of title and recovery of possession of the dispute property from the appellants who purchased it from Gangabati and Sham Dasi under a conveyance executed on the 15th January 1890. The defendants resisted the claim on the ground that the transfer by Gangabati and Sham Dasi was for legal necessity, and they had consequently acquired an indefeasible title. The written statement in which this plea of legal necessity was urged was filed on the 25th March 1907. The issues were framed on the following day and the parties are called upon to file the documentary evidence. On the 27th. June the defendants invited the Court to send for the original of certain records from the Collectorate relating to mutation proceedings in 1847, upon the application of Rajrani Koer. On the 16th July 1907, the defend-ants applied for leave to amend their written statement. This application was refused on the day following. The suit was subsequently tried out, and the only question in controversy between the parties, was whether there was legal necessity for the alienation in favour of the defendants. The Court found that the defendants had failed to discharge the burden that lay upon them to establish the alleged legal necessity. The result was that a decree was made in favour of the plaintiff. Upon appeal to the District Judge, the defendants conceded that the finding of the original Court upon the question of legal necessity could not be successfully assailed on the evidence. In fact, in view of the circumstance that the transaction had taken place nearly forty years before the trial of the suit, it would be extremely difficult, if not wholly, impracticable for the defence to establish the plea. The defendants, however, urged before the District Judge that they ought to have been allowed to amend their written statement. The District Judge overruled this contention and affirmed the decree of the primary Court. Upon the present appeal the only point which has been urged on behalf of the appellants is that their application for amendment of the written statement was improperly refused. In our opinion, this contention is well-founded and must prevail.
2. The application of the 16th July 1907, for amendment of the written statement was to this effect: The defendants alleged that they had discovered from the record of the mutation proceedings of 1348 that Rajrani Koer then alleged that upon the death of Manyar Singh he had been suoceeded by his son Durga Prosad; and that upon the death of Durga Prosad, about the year 1817, Raj Rani Koer herself had succeeded to the estate as the heiress of his son. It was on this basis that the application was made by Raj Rani Koer in 1848, for mutation of the name of Manyar Singh in the records of the Collectorate. The defendants in the present suit prayed that they might ba allowed to amend their written statement and set up an alternative defence, namely, that if it was established that Manyar Singh left a son Durga Prosad upon whose death the properties passed to Raj Rani Koer, upon the death of the latter the estate would pass not to the sisters of Durga Prosad, namely, Gangabati and Sham Dasi, but to his nephew Rachia Lal, the present plaintiff. In this view, the question would arise whether the defendants, although they had professed to buy the property from Gangabati and Sham Dasi, on the assumption that they were the heirs to the estate of Manyar Singh had not acquired a good title by adverse possession and whether the claim of Rachia Lal to succeed to the estate of Durga Prosad was not barred by limitation. No doubt the legal inference which could follow upon the establishment of the fact that Durga Prosad had succeeded to the estate of his father Manyar Singh was not explicitly set out in the application for amendment; but it was plainly unnecessary for them to state the legal inference in detail; they could at best ask for leave to amend the written statement by a recital of the fact which they had discovered. The question, therefore, arises whether the defendants were entitled in justice to have their written statement amended as prayed. The answer to this question depends upon two elements; namely, first was it open to the defendants to include in their written statement two inconsistent defences; secondly, if it was open to them to do so, whether their application of the 16th July 1907, ought to have been granted so as to enable them to include in the written statement a defence inconsistent with the defence originally taken.
3. Now, in so far as the first of these points is concerned, there can be no room for controversy that it would have been open to the defendants to include two inconsistent defences in the alternative in their original written statement. In support of this proposition, reference may be made to the decision of a Fall Bench of this Court in the case of Narendranath Barary v. Abhoy Charan Chattopadhya 34 C. 51 : 4 C.L.J. 437 : 11 C.W.N. 20 : 1 M.L.T. 364 which was applied in Alickjan Bibi v. Rambaran Shah 12 C.L.J. 357 at p. 360 : 7 Ind. Cas. 166. In the case last mentioned, it was pointed out that a defendant may raise by his written statement as many distinct and separate, and, therefore, inconsistent defences as he may think proper. This is in accord with the rule which prevails in England Hawkesley v. Bradshaw (1880) 5 Q.B.D. 302 : 49 L.J.Q.B. 333 : 42 L.T. 285 : 28 W.R. 557 : 44 J.P. 473.
4. In so far as the second question is concerned, it is clear that there was nothing in the law as it stood at the time of the decision of the suit in the original Court, which pre-vented the defendants from amending their written statement. Section 112 of the Code of 1882 provides that the Court may at any time require a written statement or an additional written statement from any of the parties and fix a time for presenting the same. Upon a construction of the corresponding Section 122 of Act VIII of 1859, it was ruled by this Court in Dasimoni Dasi v. Srinath Ghose 3 B.L.R. App. 11 that on an application by the defendant to be allowed to file an additional written statement, the Court might grant the application even though the additional written statement was inconsistent with the original written statement. Such an order, however, could be made only upon payment of costs by the defendant to the plaintiff. The law, as it now stands, gives a wider discretion to the Court, because Rule 7 of Order VI of the Code of 1908 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. This rule merely gives effect to what has been the recognised practice, because, as was stated by their Lordships of the Judicial Committee in the case of Australian Steam Navigation Co. v. W. Howard Smith and Sons 14 App. Cas. 318 : 61 L.T. 134 their Lordships are strong advocates for amendments, whenever it CM be done without injustice to the other side, and even where they have been put to certain expense and delay, yet if they can be compensated for that in any way, an amendment ought to be allowed for the purpose of raising the real question between the parties. The two cardinal elements to be borne in mind are, first, whether the application for amendment is made in good faith, and, secondly, whether the application is made at such a late stage of the case that if we grant the prayer, the plaintiff may be injured because the defendant would without notice raise a totally different and inconsistent case which the plaintiff has not sufficient opportunity to meet Tildesley v. Harper (1778) 10 Ch. D. 393 : 39 L.T. 552 : 27 W.R. 249 : 48 L.J. Ch. 495; Charapede v. Commercial Union (1881) 32 W.R. 151 at p. 262; Weldon v. Neale (1887) 19 Q.B.D. 391 : 35 W.R. 820 : 56 L.J.Q.B. 621 and Laird v. Briggs (1880) 16 Ch. D. 410 at p. 446 : 43 L.T. 632 : 29 W.R. 197 : 50 L.J.Ch. 260 Bullen and Leake--Precedents of Pleading, 6th Ed., p. 16. It is obvious, as we have already explained, that the plaintiffs in the case before us would not have been embarrassed in any way if the amendment had been allowed. We are, therefore, of opinion that the course which was pursued by the Court of first instance and has met with the approval of the District Judge, cannot be defended on principle.
5. The result is that this appeal is allowed, the decrees of the Courts below set aside and the case remanded to the Court of first in-stance in order that the defendants may have an opportunity to amend their written statement. The defendants are entitled to their coats both in this Court and in the Court of the District Judge. They will also be allowed one gold mohur as costs of the hearing of the 16th July 1907 in the Court of first instance. The other costs in the Court of first instance will abide the result.
6. We may add that, in so far as the question of legal necessity is concerned, it will not be open for further consideration. The only point for examination at the re-trial will be whether Manyar Singh left a son Durga Prasad, and if so, what is the result of that circumstance on the rights of the parties. They will be at liberty to adduce evidence on the questions which require determination.