A defendant can raise inconsistent defences, and the party aggrieved should move the court to take action if the defence is found to be embarrassing.

Anantakrishna Ayyar, J.

1. Suit to recover money due on a hypothecation bond dated 29th November 1906, executed for Rs. 300 by defendant 1 (Hameeda Beevi Ammal). Defendants 2 to 9 were impleaded as legal representatives of defendant 1, who died shortly after the filing of the plaint. The plea urged by the contesting defendants was that the property belonged to their father (husband of defendant l), that owing to pressure of creditors and to settle their claims easily the father made a colourable settlement in favour of defendant 1, and in order to lend colour to the settlement the plaint hypothecation bond was executed in favour of the plaintiff who was the father-in-law of defendant 2 without any consideration; and after the death of their father (defendant ls husband) the plaintiff having insisted on payment of Rs. 250, defendant 2, the eldest of the children, paid the plaintiff Rs. 360 in 1907, which was accepted in full discharge of the mortgage, and that the present suit was the result of collusion between the plaintiff and his son-in-law, defendant 2. The trial Court framed five issues in the suit and found that defendant 1 was entitled to mortgage the plaint property, that the mortgage was true and supported by consideration, but that it must be deemed to have been discharged as alleged by the contesting defendants (defendant 3, etc.). It dismissed the suit, but without costs.

2. On plaintiffs appeal the lower appellate Court concurred with the Munsifs decision. It was however argued before the lower appellate Court that the defendants ought not to have been allowed to raise inconsistent pleas and that the trial in the first Court was vitiated by that circumstance. The lower appellate Court dealt with this matter in para 16 of its judgment. It observed as follows:

As regards the contention of the learned vakil for the appellant that the defendants had raised inconsistent and mutually antagonistic pleas in their written statement, viz, that the mortgage sued on is nominal and that it has also been discharged, I think on a close reading of the entire written statement it cannot be said that the defendants have raised any contentions which are mutually destructive. As pointed out on the respondents side, the nominal nature of the transaction was set up only by way of probabilising the defendants plea of discharge of the entire debt by payment of Rs. 250. In any case it is too late for the plaintiff to urge any such argument in the above appeal.

3. In the result the appeal was dismissed, but the lower appellate Court modified the decree of the 1st Court and allowed the contesting defendants costs in both Courts. The plaintiff has preferred this second appeal. The learned advocate for the appellant, seeing that the findings on issues of fact are against the appellant, pressed two questions before me (1) that the defendants ought not to have been allowed to raise inconsistent and antagonistic pleas, viz.: (a) that defendant 1 had no title to the mortgage; (b) that the mortgage was nominal; and (c) that it had been discharged. He argued that such pleas were embarrassing to the plaintiff and that the lower Courts procedure in trying all the inconsistent issues had prejudiced the plaintiff; and (2) that the lower appellate Court ought not to have interfered with the order as to costs passed by the trial Court.

4. The question was argued how far parties to a suit are entitled to raise inconsistent pleas and what procedure should be accepted by Courts in such eases. Before the Judicature Acts the rule of pleading in England would seem to be that a plaintiff could not (without leave of Court) plead inconsistent facts. After the Judicature Acts it has been held in England that there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative. It is said that since the Judicature Acts, inconsistent defences, such as (a) never indebted and, (b)