13 January 1964
Supreme Court


Case number: Appeal (civil) 330 of 1960






DATE OF JUDGMENT: 13/01/1964


CITATION:  1965 AIR  295            1964 SCR  (6) 192  CITATOR INFO :  R          1980 SC1655  (5)

ACT: Code  of Civil Procedure (Act Y of 1908), 0. Ix, r.  9-scope of--Crown  Grants Act, s. 3-Lease by  Government-Effect  of- Applicability  of s. 41 of Transfer of Property Act  (IV  of 1882).

HEADNOTE: The  property covered by the Tea Estate was granted  by  the Government by way of lease in 1898 for 30 years.  In 1913 it was  purchased’ by Azam Ali.  When he died in 1917, he  left behind  8  sons,  9 daughters and 3  widows.   The  name  of Ismail, his eldest son, was entered in the official  records as  next in succession.  Ismail borrowed  considerable  sums from  National Agency Co. Ltd., and for securing  the  same, deposited  the title deeds of the Tea Estate on the  footing that  he  was  its  full owner.  As  the  amount  under  the mortgage was not paid, a suite was filed for realisation  of the amount by sale of mortgage property.,. 193 The  suit  was  decreed and in execution  the  property  was auctioned  and sale was confirmed in 1931 in favour  of  the decree-holder who sold the same to Azamabad Tea Estate,  the principal respondent in this case. The  heirs  of Azam Ali brought suit No. 58 of 1931  to  set aside  the decree and sale in favour of the National  Agency Co.  Ltd., on ,various grounds but that suit  was  dismissed for default. The  suit  out of which the present appeal  has  arisen  was filed  subsequently.  The plaintiffs-appellants who  claimed title under purchasers ’for the heirs of Azam Ali challenged the  validity  of  the transactions by  which  the  National Agency  Co.  Ltd. claimed to have purchased  the  entire  16 annas  interest  in  the  property  at  the  court  sale  in pursuance ,of a decree obtained by them against Ismail.  The trial  Court  held that the purchase made  by  the  National Agency  Co.  Ltd.  was  valid and  extended  to  the  entire interest  in  the  property and hence the  venders  of  -the plaintiffs  had no title to convey to them any interests  in the property.  The High Court in appeal disagreed with  this



finding but dismissed the appeal on other grounds except  to the  extent  of  an  8 pies  share  in  the  property.   The appellants  came to this Court on a certificate  of  fitness granted by the High Court. The  points raised before this Court were whether  the  High Court was right in holding that the present suit was  barred by O. IX, r. 9 on the ,ground that when suit No. 58 of  1931 was  dismissed  in default, no action was taken  to  get  it restored,  this was raised by the respondent and whether  in any  event their claims to the 2 as 13 odd gundas  share  of Ashfaq, son of Ismail, should not have been decreed. HELD (i) that the suit was substantially barred by 0. TX, r. 9.  The  essential bundle of facts on which  the  plaintiffs based  their title and their right to relief were  identical in the two suits the property sought to be recovered in  the two suits was the same.  The title of the ,persons from whom the  plaintiffs claimed title by purchase was based ,on  the same  facts.  The additional allegation about possession  in October   1934  did  not  really  destroy  the   basic   and substantial  identity  of the ,causes of action in  the  two suits. The  ban  imposed by 0. IX, r. 9 does not  create  merely  a personal  bar or estoppel against the  particular  plaintiff suing  on the same cause ,of action and does not  leave  the matter  at  large for those claiming under  him.   The  word "plaintiff"  in  the  rule includes his  assigns  and  legal representatives. (ii)that when the Government granted the lease in 1928, the lease  was granted not only in favour of Ismail but also  in favour of the ,other co-sharers although the name of  Ismail alone was mentioned in the lease deed.  The provisions of s. 3  of  the Crown Grants Act did not  affect  the  beneficial interest in the lease. Section 41 of the Transfer of Property Act did not help  the respondent as there was no evidence to show that Ismail  was put forward by 134-159 S.C.-13 194 the  other  co-sharers  as  the  ostensible  owner  of   the property.   The  conduct  of the  co-sharers  in  permitting Ismail to manage the common property did not by itself raise any  estoppel precluding them from asserting  their  rights. Even a cursory enquiry by the mortgagee would have disclosed that Ismail was not the full owner. As regards the contention of the appellants that they should have  been  granted a decree to the extent of 2 As.  13  odd gundas  share  of  Ashfaq in addition to the  8  pies  share decreed  to them by the High Court, the case was ordered  to be  remitted  to  the trial Court  for  giving  its  finding regarding the reality of the sale by Ashfaq. Gopi  Ram  v. Jagannath Singh, I.L.R. 9 Pat.  447,  Mohammad Khalil Khan v. Muhbub Ali Mian, 75 I.A. 121 and Soorijomonee Dasee v.Suddanund, (1873) 12 Ben.  L.R. 304, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 330 of 1960. Appeal from the judgment and decree dated March 18, 1954, of the Calcutta High Court in Appeal from Original, Decree  No. 80 of 1947. S.   T. Desai and B. P. Maheshwari, for the appellants. B.   Sen,  N. R. Ghosh, Salil K. Datt and P. K.  Ghosh,  for the respondents Nos. 1 and 2. January  13, 1964.  The Judgment of the Court was  delivered



by AYYANGAR  J.-This  is an appeal preferred, by  virtue  of  a certificate  of fitness granted by the Calcutta High  Court, against  its  judgment, by which the decree  passed  by  the Subordinate Judge of Darjeeling was substantially affirmed. The  plaintiffs are the appellants before this  Court.   The suit  out  of  which the appeal arises was  brought  by  the appellants claiming title to and the recovery of  possession of  a  property  known  as  the  Azambad  Tea  Estate  which comprised  about 378 acres of land in Touzi No. 911  of  the Darjeeling  Collectors.   This  property  was  set  out   in Schedule  A to the plaint and besides a claim was also  made to  certain  other items of the movable  and  certain  other tenures, but this appeal is not concerned with these  others which were set out. in Schs.  B and C to the plaint. 195 One Kazi Azam Ali was admittedly a full owner of this entire property  and the proceedings giving rise to the appeal  are concerned  with the rights of his heirs to it.   The  plain- tiffs  claim their title on the basis of  various  purchases from the heirs of this Azam Ali.  The contesting  defendants were the Azamabad Tea Co. who also claim the entire property as  transferees from the National Agency Co. Ltd.,  who  too have been impleaded as defendants.  The National Agency  Co. Ltd.  claim to have purchased the entire 16 as. interest  in the  property  at  a Court sale in  pursuance  of  a  decree obtained  by them against Kazi Mohammed Ismail,  the  eldest son  of  Azam Ali.  Various contentions were raised  by  the plaintiffs in challenge of the validity of the  transactions by  which  the  defendants claimed  their  title.   But  the learned Subordinate Judge repelled the plaintiffs’ claim and held  that the purchase by the National Agency Co. Ltd.  was valid  and extended to the entire interest in  the  property and that in consequence the plaintiffs’ vendors had no title to  convey  to  them  any interest  in  the  property.   The plaintiffs’ claim of the property in respect of Sch.  A  was therefore dismissed.  The plaintiffs preferred an appeal  to the  High Court and the learned Judges upheld the  title  of the plaintiffs to an 8 pies share in the property  mentioned in  Sch.   A to the plaint but confirmed the decree  of  the Subordinate  Judge as regards the rest.  The learned  Judges however  granted a certificate of fitness to the  plaintiffs on the strength of which the present appeal has been filed. The  history of the transactions before the suit occupies  a period  of over 20 years and the facts in  relation  thereto are at once long, voluminous and complicated.  But, for  the disposal of the appeal and the points urged before us it  is wholly  unnecessary to set these out and we shall  therefore confine ourselves to a narration of the bare outlines of the case   along  with  those  facts  which  are  necessary   to appreciate the contentions raised in support of the appeal. The  property  covered  by the Tea  Estate  was  granted  by Government  by way of lease to one Mudir and another for  30 years,  the  term to start on the 1st of  April  1898.   The grantees  effected transfers of their lease-hold  and  after several successive transfers the property was purchased in 196 1913  by one Kazi Azam Ali who got his name registered as  a proprietor.   It  was Azam Ali who started the  tea  garden. constructed  the requisite factories as accessories  thereto and named it the Azamabad Tea Estate.  Azam Ali had  several children and among them 8 daughters and in consideration  of gifts  made  to them, these daughters by a  registered  deed executed in 1909 relinquished their rights of succession  to Azam Ali.  They thus faded away from the picture and no more



notice  need be taken of them.  Besides these  8  daughters, Azam  Ali  had 8 sons who survived him and  were  among  his heirs,  when he died on June 8, 1917.  Mohammed  Ismail  was the  eldest of these sons.  Azam Ali also left behind him  a daughter who was born after’ the relinquishment of 1909  and three  widows.  Admittedly the sons of Azam Ali, his  widows and  his last daughters were all his heirs entitled  to  his estate  in the shares as prescribed by Muslim Law.  On  Azam Ali’s  death his eldest son--Ismail-had his name entered  in the Government records as the next in succession and at  the time  the thirty years term of the lease expired, the  lease continued to remain in the name of Ismail alone. We now proceed to the transactions as a result of which  the contesting defendants claim to have obtained the full  title to  the Tea Estate.  Ismail made large borrowings and  among them  were  some from the National Agency Co. Ltd.  and  for securing the loan he deposited with them the title deeds  of the Tea Estate.  It may be mentioned that the deposit was on the  footing that he was the full owner of the 16 as.  share of  the  property  mortgaged.   The  amount  due  under  the mortgage was not paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the  sale of  the property for the realisation of the mortgage  money. The suit was decreed as prayed for and the property was sold in  execution of the final decree and was purchased  by  the mortgage-decree holder on September 24, 1931.  The sale  was confirmed   on  November  13,  1931.    This   decree-holder purchaser sold the property to the Azamabad Tea  Estate--the principal  respondent  before  is.  There  was  some  little controversy as regards the reality and effectiveness of  the transfer  of the property from the National Agency Co.  Ltd. to the Azamabad Tea Estate, 197 but nothing turns on this, for even if that transfer was not effective that would not help the plaintiffs so long as they could not displace the title of the National Agency Co. Ltd. under the latter’s court auction purchase. The  case of the plaintiffs rested on the fact  that  Ismail who  got himself registered as if he were a full  proprietor of  the lease-hold interest in Touzi 911 was merely  one  of several co-sharers of Azam Ali’s estate to whom it passed on his  death.   The  lease-hold which  was  his  property  was according  to  them  inherited by all  his  heirs  including Ismail,  the  seven  other sons, the three  widows  and  the daughter born after 1909. The  term of the lease granted by the Government expired  in 1928  and a renewed lease was granted in the name of  Ismail alone.   Rival contentions were urged as regards the  effect of  this  circumstance on the right of Ismail.  It  was  the case of the contesting respondents that the lease granted in 1928  in favour of Ismail was his sole and  individual  pro- perty and even if for any reason the other heirs of Azam Ali had  an  interest in the previous lease-hold, they  did  not have any such interest in the property covered by the  fresh lease.   On the other hand, the case of the  plaintiffs  was that  by the renewal of the lease, Ismail obtained  qua  his co-heirs  the same interest as he formerly had in the  lease of 1898.  The renewal, they stated, was for the benefit  not merely of Ismail but for everyone of his co-heirs who  still retained his or her interest in Azam Ali’s estate.  On  this basis the plaintiffs raised the contentions that when by the sale  in  execution of the mortgage decree obtained  by  the National  Agency Co. they purchased the property  mortgaged, it  was only the interest of Ismail that passed to them  and not  those  of  his co-sharers who were no  parties  to  the



mortgage, There  is  one further transaction to which we  must  advert before  passing  on to the next stage  of  the  proceedings. After  the mortgage by deposit of title deeds in  favour  of the  National  Agency  Co., Ismail  transferred  his  entire interest  in the mortgaged property, that is, in the  equity of  redemption,  to his wife Mst.  Nazifannessa, by  a  deed dated  May  6,  1930.  Notwithstanding this  deed  and  this transfer of the equity of redemption Mst.  Nazifannessa  was not made a party to the 198 mortgage suit by the National Agency Co. The plaintiffs  who claim   to  have  acquired  Mst.   Nazifannessa’s   interest contended   that  by  reason  of  the  failure  to   implead Nazifannessa in the mortgage action, her right to redeem the mortgage  was still in tact in spite of the mortgage  decree and the sale in pursuance thereof, and on this footing  made a claim in the alternative to redeem the mortgage in  favour of  the National Agency Co. and obtain possession after  re- demption. To  complete the narrative of the relevant facts, very  soon after  the  purchase in Court auction in  execution  of  the mortgage decree, the heirs of Azam Ali brought a suit (58 of 1931) to set aside the decree and the sale in favour of  the National  Agency  Co. Ltd.  on  various  grounds--collusion, fraud,  the circumstance that Ismail was merely a  co-sharer entitled  to  about 2 1/2 as. share in the property  and  so could not mortgage more than that share, and that the decree could  not  bind  a  larger interest  nor  the  sale  convey anything more than that share, even if it conveyed any title to  the  property.   This suit however did  not  proceed  to trial, but was dismissed for default, in that the plaintiffs did  not appear in Court on the date fixed for  trial.   The only  other  matter to be mentioned is that  the  plaintiffs have,  by  their purchases, acquired from  the  several  co- heirs, directly or mediately, the entire 16 as. share in the property  assuming  that their vendors had any  such  right. Armed  with these purchases the plaintiffs filed  this  suit for the reliefs already indicated.               The  defences raised to the suit  were  three-               fold:               (1)   That  Ismail was the sole proprietor  of               the Tea Estate at the date of the mortgage and               consequently  the  entire  interest  was   the               subject of mortgage and so passed at the court               sale.  This was based on the provisions of the               Crown  Grants Act, now the  Government  Grants               Act.  It would be recollected that the  thirty               years  lease of Touza 911 was renewed in  1928               and  this  renewal  was made in  the  name  of               Ismail   alone.   Based  on  this  feature   a               contention  was raised that the grant  of  the               lease created a new title in the grantee since               the original lease in               199               which  alone the heirs of Azam Ali might  have               had   a   share  was   extinguished   by   the               termination of that lease by efflux of time.               (2)   The  second  line of  defence  was  that               Ismail,  even  if in fact or law was  not  the               full  owner,  was an ostensible owner  of  the               entire  interest in the property and that  the               co-heirs  were estopped from  questioning  the               validity   of  the  mortgage  of  the   entire               interest  effected by him under s. 41  of  the



             Transfer  of Property Act and that  in  conse-               quence the sale in execution passed the entire               16 as. share to the purchaser.               (3)   Lastly,   it   was   urged   that    the               plaintiffs’ suit was liable to be dismissed by               reason of the provisions of 0. IX, r. 9 of the               Civil  Procedure Code as the earlier  Original               Suit 58 of 1931 brought by the co-heirs to set               aside  the sale under the mortgage decree  had               been allowed to be dismissed for default. The learned Judges of the High Court rejected the first  two of  the  defences but held that except to the extent  of  an eight pies share which represented the interest of a co-heir which was not affected by the proceeding in Suit 58 of 1931, the  plaintiffs  were  precluded  by  0.  IX.  r.  9,  Civil Procedure  Code  from  disputing the sale  in  execution  of mortgage  decree by reason of the dismissal for  default  of Suit 5 8 of 1931. Before  proceeding to set out the arguments addressed to  us by  Mr. Desai, learned counsel for the appellants, it  might be  convenient to dispose of the submissions made to  us  by Mr.  Sen,  learned counsel for the respondents,  seeking  to ,sustain  the first two defences which were repelled by  the High Court. The  first of them was that by reason of the renewal of  the lease  in  1928 in the name of Ismail and the entry  of  his name  as sole lessee in the revenue records,  the  leasehold became  his sole property.  Apart from the  arguments  about Ismail being the ostensible owner of the entire 16 as. share in  the  lease-hold under the lease of 1898-which  we  shall consider a little later-Mr.  Sen did not dispute that 200 Ismail’s  co-heirs were entitled to their fractional  shares in the property under the original lease.  The acceptability of  this  argument  regarding the renewed lease  has  to  be determined on -the basis of two factors-first the  intention of the parties, and here primarily of the grantor, as to the nature and quantum of the title intended to be conferred  on or  obtained  by Ismail and, second, the provisions  of  the Crown, Grants Act which governed the grant on which reliance was  placed  as leading to that result.  First,  as  to  the intention  of the parties.  The original lease of  1898  was due  to  expireon March 31, 1928.  On July  20,  1928  Mohd. Ismail   made  a  petition  to  the   Deputy   Commissioner, Darjeeling by which after drawing the latter’s attention  to the date on which the lease was to expire, he  "respectfully solicited the favour of’ kindly granting a further lease  of the  said  Estate  for a further period of  30  years."  The Deputy Commissioner replied by letter dated August 10,  1928 sending  Ismail  the  draft of the  renewed  lease  for  his approval  and  return adding "in the record  of  rights  the following names have been recorded: 1.   Kazi Mohammed Ismail 2 as.; 2.   Kazi Isahaque 2 as.; 3.   Kazi Yakub 2 as.; 4.   Kazi Samoddoha 2 as.; 5.   Kazi Nurul Huda 2 as.; 6.   Kazi Badarudduza 2 as.; 7.   Kazi Insaf Ali 2 as.; 8.   Kazi Asfaque 2 as.; Please mention the name in whose favour the lease will  have to  be  issued." Ismail returned the draft  lease  with  his approval  but  desired  that  the  lease  should  be  issued according  to the name in the land register.  We are  unable to  read this request as meaning that Ismail,  contradicting



what the Government said, wanted that the leasehold interest should  be his sole property in which his co-heirs  who  had interest  in  the  earlier  lease  were  to  be  denied  all beneficial interest.     It  was thereafter that  the  lease was executed on February 1, 1929 in the name of Ismail to be operative from April 1,  1928 and was in terms in renewal of the previous 201 lease.  In the circumstance, we are satisfied that the  Gov- ernment  intended  to  grant a lease in favour  of  his  co- sharers  as well, though the lease deed was in the  name  of Ismail alone.  If Ismail intended to benefit himself at  the expense  of  his co-sharers and as we have said, we  do  not read his reply to the Deputy Commissioner as disclosing such an intention, the same was not made known to the Government. We are therefore unable to accept Mr. Sen’s submission based on  the  intention of the parties.  He,  however,  submitted that whatever be the intention of the parties, by reason  of s.  3 of the Crown Grants Act Ismail’s title to the full  16 as.  share  in the leasehold could not  be  disputed.   This section reads:               "3.  All provisions, restrictions,  conditions               and  limitations  over contained in  any  such               grant or transfer as aforesaid shall be  valid               and take effect according to (their tenor, any               rule  of  law,  statute or  enactment  of  the               Legislature to the contrary notwithstanding." If, as we have held. it was the intention of the  Government in  granting the renewal that the co-heirs too  should  have the benefit of the lease we do not see how these  provisions affect    their  beneficial interest in the lease.  Nor  are thereany  clauses  in  the  lease  which  preclude  the existence of abeneficial interest in persons other than the lessee named.This point is therefore without substance and is rejected.      The next point urged was based on s. 41 of the Transfer of  Property Act.  It was said that Ismail was by reason  of the  entry in the revenue registers, which the co-heirs  did nothing  to  correct,  ostensibly  the  full  owner  of  the property and hence the mortgage by him as full owner and the sale  in  court auction in execution of the  decree  by  the National  Agency Co. Ltd. passed the full title to  the  Tea Estate and that the co-heirs were consequently estopped from disputing the defendant’s right to the full 16 as. share  in the property. In order that s. 41 of the Transfer of Property Act could be attracted, the respondents should prove that Ismail was  the ostensible owner of the property with the consent of his co- sharers and besides that they took reason-able care 202 to ascertain whether Ismail had the power to make a transfer of  the full 16 as. interest.  Now, the facts  however  were that  except  the  property being  entered  in  the  revenue records  in  Ismail’s name, and that the management  of  the property  was left by the co-sharers with Ismail,  there  is not  an  iota of evidence to establish that Ismail  was  put forward by them as the ostensible owner of the property.  It is manifest that the conduct of co-sharers in permitting one of  them  to manage the common property does not  by  itself raise  any  estoppel precluding them  from  asserting  their rights.  The learned Judges have also pointed out that  even the least enquiry by the mortgagee would have disclosed that Ismail  was  not  the full owner and this  finding  was  not seriously  challenged  before  us.   In  this  view  it   is unnecessary for us to consider the submissions made to us by



Mr.  Desai that s. 41 was inapplicable to cases of sales  in court auctions for the reason that what the court is capable of selling and what is sold in execution of a decree is only the  right,  title and interest of the  judgment-debtor  and nothing  more.  We, therefore, hold that the learned  Judges of the High Court rightly held that s. 41 of the Transfer of Property Act afforded no defence to the respondents. The  next and the only point remaining for consideration  is whether the appellants’ suit is barred under the  provisions of  0.  IX. r. 9, Civil Procedure Code.  The  part  of  this provision material for our purpose runs:-               "Where  a suit is wholly or  partly  dismissed               under rule 8, the plaintiff shall be precluded               from  bringing a fresh suit in respect of  the               same cause of action." The  learned  Judges of the High Court have held  that  this provision  barred the plaintiffs’ claim in the present  suit except to the extent of an 8 pies share in the estate  which belonged  to  Azifunnessa  and  Najifennessa,  two  of   the daughters  of  Azam Ali, who on the death  of  their  mother became  entitled  to  that share.  These two  were  not  the parties to suit No. 58 of 1931 and hence the learned  fudges held   that  their  share  (which  was  purchased  ’by   the plaintiffs) was unaffected by the dismissal of that suit. 203 The  decision  of the High Court in regard to  this  8  pies share has become final and thus is outside controversy.  The ,only  question  is whether  the  plaintiffs-appellants  are entitled to anything beyond this share. The suit, 58 of 1931, was instituted by 7 plaintiffs Ashfaq, Shamsuzzoha, Nurul Huda, Mohd.  Yakub, these four being  the sons  of Azam Ali, two of his daughters Mahbuba  Khatun  and Habiba Khatun and one of his widows Bibi Marium.  There were two defendants-the National Agency Co. Ltd. the purchaser in court sale of the property under the mortgage decree,  whose title  was challenged and against whom reliefs were  claimed and  Mohd.  Ismail who was a pro forma  defendant.   Ashfaq, The first plaintiff, died after the institution of the  suit and  certain of the parties already on record were  recorded as his legal representatives.  The allegations in the plaint briefly  were that the 2nd defendant Mohd.  Ismail  was  not tile sole proprietor or owner of the Azamabad Tea Estate and that  for  that reason, the mortgage in favour  of  the  1st defendant,  the mortgage-decree obtained by it and the  sale thereunder passed to it no title except to the extent of  2- 1/2  as. share belonging to Mohd.  Ismail.   The  plaintiffs therefore prayed for a decree declaring-               (1)   that  Mohd.  Ismail had only  2-1/2  as.               share  in the property and the remaining  132-               1/2 as. share belonged to the plaintiffs;               (2)   that only 2-1/2 as. share was sold under               the  mortgage  decree  and  purchased  by  the               National Agency Co. Ltd. at the court sale. The suit was instituted on 28th November, 1931 and after the issues  were settled, the suit was posted for trial on  22nd August,  1932, on which date the plaintiffs were absent,  no witnesses  on their behalf were present, and  their  pleader reported  no instructions.  The suit was therefore  directed to be dismissed with costs in favour of the National  Agency Co. Ltd. who was the only party present in Court.  It may be mentioned  that  Mohd.   Ismail never  appeared  during  the hearing of the suit. 204 Before  taking  up for consideration  certain  points  urged before  us by Mr. Desai regarding the construction of 0.  IX



r.  9 C.P.C. we might dispose of a contention raised by  him that  Suit  No.  58  of  1931  was  filed  fraudulently  and collusively and the dismissal was the result of a settlement brought about collusively in order to defeat the plaintiffs’ rights.   We  consider  that there is no  factual  basis  to sustain,  this plea for he could point to no definite  proof in  support,  and the most he could do was to  refer  us  to certain suspicious circumstances.  We cannot obviously  base any  decision or rest any finding, on mere suspicion and  we have  no hesitation in saying that the submission  does  not deserve serious consideration. The  next  submission  was that even the 212  as.  share  of Ismail  did  not  pass under the sale in  execution  of  the mortgage  decree,  because  it was  said  Ismail  had  been, adjudicated  an insolvent in Insolvency Case 38 of  1931  by the Dist.  Judge Purnia, as a result of which the properties which  were the subject of the court-sale had vested in  the official  receiver  before the relevant  date.   Though,  no doubt,  an allegation regarding this matter was made in  the plaint  and  this  was denied by  the  plaintiffs  there  is nothing  in  the judgments of the courts below  or  in  the, evidence to indicate that the necessary facts were proved or that this point was urged with any seriousness at any  stage of  the proceedings until in this Court.  We have  therefore nothing  beyond the bare allegations and denials and as  the full facts in relation to this matter were not placed before the  Court  we hold that this plea is devoid of  merits  and does not merit consideration. It  was next said that two of the plaintiffs in suit No.  58 of 1931, Nurul Huda and Habiba Khatun, a son and a  daughter of  Azam Ali were really adults but were shown in the  cause title  as  minors represented by  their  respective  natural guardians  as  their next friends and that as  these  adults could not in law be represented by persons purporting to act as  their guardians they could not be held to be parties  to the suit and hence their interests could not be affected  by the dismissal of the suit.  This also is one of the  matters in  respect of which the plaintiffs beyond a  mere  pleading which was denied, made no grievance in the courts 205 below  and the facts in relation to this issue, namely,  the age  ,,of the two plaintiffs at the date of the  plaint  not having  been clearly proved, we do not find it  possible  to entertain the plea at this stage. Mr. Desai, then submitted that Ashfaq who had figured as the first plaintiff in suit No. 58 of 1931 had already on  April 18,  1931 transferred his 2 as. 13 gandas and odd  share  in Touzi  No.  911  to one Pir Baksh from  whom  the  plaintiff obtained  a conveyance by a deed dated September 2, 1943  of what he had purchased from Ashfaq.  For this reason he urged that on the findings on the merits of the title in favour of the plaintiffs on the first two defenses we have dealt  with earlier the plaintiffs should have been granted .a decree to this share of Ashfaq in addition to the 8 pies share decreed to  them by the High Court.  No doubt, if  this  transaction were  made  out  and was real, it would stand  on  the  same footing as the 8 pies share in regard to which a decree  was granted  in  favour of the plaintiffs by  the  judgment  now under  appeal.  We shall however consider this matter  after dealing with the point urged as regards the construction  of 0.  IX.  r.  9, Civil Procedure Code,  which  was  his  main submission  and which, if upheld, would  entirely  eliminate the bar under this provision of law. On  this the first submission was that the rule which  spoke of  the  "plaintiff" being precluded from bringing  a  fresh



suit created merely a personal bar against the plaintiff  in the first suit and that in the absence of words referring to the representatives of the plaintiff or those claiming under the  plaintiff as in s. 11 or s. 47 of the  Civil  Procedure Code,  the  bar  was  not  attracted  to  cases  where   the subsequent  suit  was  by  the heirs  and  assigns  of  that plaintiff.  In support of this submission Mr. Desai  invited our  attention to the observations of Das J. in Gopi Ram  v. Jagannath Singh(1) where this argument was characterised  as a weighty one and examined elaborately.  Though the  learned Judge  decided  this  matter on quite a  different  line  of reasoning,  he referred to various earlier  decisions  which appeared  to him to favour the view submitted to us  by  Mr. Desai and expressed his hesitation in (1)  L.L.R. 9 Pat. 447 at P. 454.                             206 rejecting  that  construction. We are not however  impressed by the argument that the ban imposed by 0. IX. r. 9  creates merely  a  personal bar or estoppel against  the  particular plaintiff  suing on the same cause of action and leaves  the matter  at large for those claiming under him.   Beyond  the absence  in  0. IX. r. 9 of the words  referring  "to  those claiming  under the plaintiff" there is nothing  to  warrant this  argument.   It  has neither principle,  nor  logic  to commend  it.  It is not easy to comprehend how A who had  no right  to  bring  a suit or rather  who  was  debarred  from bringing a suit for the recovery of property could effect  a transfer  of his rights to that property and confer  on  the transferee  a  right  which he was  precluded  by  law  from asserting.   There are, no doubt, situations where a  person could  confer  more  rights on a  transferee  than  what  he possessed  but  those are clearly defined  exceptions  which would  not include the case now on hand.  This argument  was addressed   to  the  High  Court  and  the  learned   Judges characterised  it as startling, a view which we share.   The rule would obviously have no value and the bar imposed by it would  be rendered meaningless if the plaintiff  whose  suit was dismissed for default had only to transfer the  property to  another and the latter was able to agitate rights  which his vendor was precluded by law from putting forward.   Aga- in  to  say  that an heir of the plaintiff is  in  a  better position  than  himself  and  that  the  bar  lapses  on   a plaintiff’s death, does not appeal to us as capable of being justified  by  any principle or line of reasoning.   In  our opinion, the word "plaintiff’ in the rule should  obviously, in order that the bar may be effective, include his  assigns and legal representatives. It  was next urged that 0. IX. r. 9 precluded a second  suit in respect of "the same cause of action" and that the  cause of action on which Suit 58 of 1931 was laid and the  present suit-Title suit 18 of 1943 was not the same and so, the  bar was not attracted. In  view  of this argument it is necessary to  examine  them cause of action on which the present suit has been filed and compare and contrast with that in Suit 58 of 1931.   Closely analysed  the  material allegations to found  the  cause  of action on which reliefs were claimed in the present suit  207 were (i) That the Tea Estate was originally the property  of Azam  Ali.  When he died his estate was inherited by  his  8 sons,  his widows and a daughter.  That the registration  of the  estate in the name of Md.  Ismail was as  a  co-sharer, the property belonging beneficially to all the heirs.   This position  was  not altered by the termination of  the  first lease  and  its renewal in 1928 for a further period  of  30



years.   All  the co-heirs lived as a joint  family  with  a common  mess and hence there was no question of any  adverse possession  by Md.  Ismail whose possession was not as  sole proprietor  or  exclusive.   The suit on  the  mortgage  was fraudulent  and  collusive,  by Ismail  colluding  with  the mortgagee  to defraud his co-heirs.  Details were  mentioned as  evidence of the fraud and collusion.  The sale  in  pur- suance  of  the decree which was passed  ex-parte  was  also fraudulent.  On the date of the auction Ismail had no  title even to the 2-1/2- as. share because of his adjudication  as an insolvent earlier.  The manner in which the 8 pies  share of the daughters was obtained by the plaintiff was set  out, and similarly the purchase by them through Pir Baksh of  the share  of  Ashfaq.  The other purchases  by  the  plaintiffs whereby  they claimed to have obtained the 16 as.  share  in the  Tea  Estate were set out.  The plaint then went  on  to refer  to suit 58 of 1931 and set out their case as  regards the nature of that litigation and its effect.  Lastly,  they pleaded that they had obtained possession of the Tea gardens on October 10, 1934 and that on the next day the  defendants moved  the  Magistrate for an order under s.  144,  Criminal Procedure  Code  and that the Magistrate had made  an  order against  the  plaintiffs restraining them  from  interfering with  the  possession of the defendants  which  necessitated their  bringing  the suit for the reliefs we  have  set  out earlier. We  have already summarised the material  allegations  which were  made  in  Suit 58 of 1931.   The  material  difference between  the  cause of action alleged in  the  present  suit consists  only in the addition of the allegations about  the possession and dispossession in October, 1934.  This suit is based  on  the title of the plaintiffs by  reason  of  their purchases and admittedly their vendors would have nothing to convey if the court sale conveyed, as it purported to 208 convey,  the full 16 as. interest in the Tea garden  to  the National  Agency  Co.  Ltd.  It was  because  of  this  that allegations were made to sustain their title and this  could be done only if they established want of title to the extent of 16 as share in Ismail, the consequent ineffectiveness  of the  mortgage effected by Ismail and of the decree  obtained in  pursuance thereof and of the court sale in execution  of that  decree, being confined at the most to 2-1/2 as.  share belonging  to  Ismail.  These allegations which  were  fund- amental  to the plaintiffs’ case were identical  with  those which  had been made in suit No. 58 of 1931.  Bearing  these features  in mind, the proposition that Mr. Desai  submitted for our acceptance was briefly this. A cause of action is a bundle of facts on the basis of which relief  is claimed.  If in addition to the facts alleged  in the first suit, further facts are alleged and relief  sought ,on their basis also, and he explained the additional  facts to be the allegations about possession and dispossession  in October, 1934, then the position in law was that the  entire complexion  of the suit is changed with the result that  the words  of  0.  IX. r. 9 "in respect of  the  same  cause  of action"  are not satisfied and the plaintiff is entitled  to reagitate the entire cause of action in the second suit.  In support  of  this submission, learned  counsel  invited  our attention to certain observation in a few decisions to which we  do not consider it necessary to refer as we do  not  see any substance in the argument. We consider that the test adopted by the Judicial  Committee for determining the identity of the cause of action    in the two suits in Mohammed Khalil Khan and Ors. v.Mahbub Ali



Mian and Ors. (1) is sound and expressescorrectly   the proper  interpretation  of the provision.In  that  case  Sir Madhavan Nair, after an exhaustive discussion of the meaning of  the expression "same cause of action" which occurs in  a similar  context  in  para (1) of O. 11 r. 2  of  the  Civil Procedure Code, observed:               "In considering whether the cause of action in               the subsequent suit is the same or not, as the               cause of action in the previous suit, the test               (1)75 1. A. 121.               209               to be applied is: are the causes of action  in               the  two suits in  substance-not  technically-               identical?" The learned Judge thereafter referred to an earlier decision of  the Privy Council in Soorijamonee Dasee v.  Suddanund(1) and  extracted  the  following passage as  laying  down  the approach to the question :               "Their Lordships are of opinion that the  term               ’cause of action’ is to be construed with  re-               ference  rather to the substance than  to  the               form of action...........". Applying this test we consider that the essential bundle  of facts  on which the plaintiffs based their title  and  their right  to  relief  were identical in  the  two  suits.   The property  sought  to be recovered in the two suits  was  the same.   The  title of the persons from whom  the  plaintiffs claimed title by purchase, was based on the same facts viz., the  position  of  Md.  Ismail quoad his  co-heirs  and  the beneficial  interests  of the latter not being  affected  or involved in the mortgages, the mortgage-decree and the  sale in  execution thereof.  No doubt, the plaintiff set  up  his purchases  as the source of his title to sue, but if  as  we have  held the bar under 0. IX. r. 9 applies equally to  the plaintiff  in the first suit and those claiming  under  him, the  allegations regarding the transmission of title to  the plaintiffs  in the present suit ceases to be material.   The only  new allegation was about the plaintiffs  getting  into possession  by virtue of purchase and  their  dispossession. Their  addition,  however, does not wipe  out  the  identity otherwise of the cause of action.  It would, of course, have made  a difference if, without reference to  the  antecedent want of fun title in Ismail which was common to the case set up  in  the two plaints in Suit 58 of 1931 and  Suit  18  of 1943,   the  plaintiffs  could,  on  the  strength  of   the possession  and dispossession or the possessory  title  that they  alleged,  have obtained any relief.  It  is,  however, admitted  that  without alleging and proving  want  of  full title  in  Md.  Ismail the plaintiffs could  be  granted  no relief in their present suit. (1) (1873) 12 Beng.  L.R 304,315. 134- 59S.C--14 210 The  question  is  whether  the  further  allegations  about possession in October, 1934 have really destroyed the  basic and substantial identity of the causes of action in the  two suits.   This  can be answered only in  the  negative.   The learned  Judges of the High Court therefore  correctly  held that the suit was substantially barred by O. IX. r. 9. It  now remains to consider the claim of the  plaintiffs  to the 2 annas 13 odd gundas share of Ashfaq.  In paragraph  52 of  their plaint the plaintiffs stated that by a  registered sale-deed executed on April 18, 1931 Ashfaq, the son of Azam Ali  sold  the  entire interest which he  possessed  in  the Azamabad  Tea Estate to Pir Baksh in pursuance of a  Bainama



dated  April 7, 1930 and put him in possession, and  in  the succeeding  paragraph they set out their purchases  of  this share  by  a Kabala dated September 2, 1943.  In  the  joint written statement filed on behalf of the defendants 1 and  2 these  allegations were controverted.  The execution of  the sale-deed  in  favour  of Pir Baksh was denied  and  it  was further  stated  that even if the sale-deed were  proved  to have been executed it was a sham and nominal transaction and therefore  inoperative  to pass title.  Though  no  specific issue  in  relation to this sale to Pir  Baksh  was  raised, there was a general issue (Issue No. 8) which related to the plaintiff’s  acquiring  title to the Tea Estate.   Ile  sale deed  by  Ashfaq was filed and marked as Ex. 12(i)  and  the sale in favour of the plaintiffs by Pir Baksh as Ex.  12(c). The  effect however of this sale to Pir Baksh on the  rights of  the  plaintiffs to relief does not appear to  have  been raised  before the learned trial Judge.  It may  be  pointed out  that the learned trial Judge held that Ismail  was  the full owner of the property under the lease granted in  1928, by reason of the provisions of the Crown Grants Act and even if this were not so, he held that his co-heirs had consented to  put him forward as the ostensible owner of the  property with the result that they were’ estopped from impeaching the mortgage  and the sale of the property in execution  of  the mortgage  decree.  It is therefore possible that because  of the view which the learned trial Judge was inclined to  take of  the  title  of  Md.   Ismail,  the  plaintiffs  did  not seriously put forward their rights under their purchase from Pir Baksh, because if the learned trial Judge was right, the sale by Ashfaq to Pir Baksh even if real 211 would  not have helped the plaintiffs to obtain any  relief. In  this  connection it may be pointed that  the  plaintiffs claim to the 8 pies share which was allowed in their  favour by the High Court, was not pressed in the trial court. Even in the High Court, however, the point arising from  the sale  by  Ashfaq  to Pir Baksh does not seem  to  have  been pressed. We  shall  presently advert to and examine  the  submissions made to us by Mr. Sen as regards the merits of this claim to the share of Ashfaq, but before doing so we must refer to  a point  raised  by  Mr. Sen which  necessitated  a  prolonged adjournment  of  the appeal after the  main  arguments  were heard.   After  pointing  out that the  plaintiffs  did  not agitate  or press before the courts below any special  right based  on the purchase of Ashfaq’s share through Pir  Baksh, he submitted that this might possibly have been because  the property  covered  by  the  sale deed Ex.  12  (i)  did  not comprise Touza No. 911--the Azamabad Tea Estate.  There  was scope  for this submission because in the record as  printed for the use of this Court, the Schedule annexed to the  sale deed  Ex.  12(i)  was  not  printed  but  only  the  portion containing  the description of the parties and the words  of conveyance,  with  the result that Mr. Desai was  unable  to make  out  whether as a fact Ashfaq’s interest in  the  suit property  was sold under Ex. 12(i).  To make  matters  worse the Schedule to the sale deed of 1943 executed by Pir  Baksh was  also not translated and printed in the record  prepared for  the  appeal.   In view,  however,  of  the  categorical statement  in  the plaint as regards the  indentity  of  the property conveyed under Ex. 12(i) with Ashfaq’s share in the Azamabad  Tea  Estate, we considered  that  the  appellant’s submission could not be rejected as frivolous.  We therefore acceded  to  the  request of Mr. Desai and  called  foe  the original  of Ex. 12(i) from the High Court so  that  counsel



might make submissions to us as regards the identity of  the property  conveyed.  The document was  accordingly  obtained ’and translated for the use of the Court and when the appeal was  again  placed  before  us Mr.  Sen  admitted  that  the property conveyed by Ex. 12(i) was Ashfaq’s 2 as. 13  gundas odd interest in Touza No. 911. 212 Coming  now  to the merits of the plaintiff’s claim,  it  is common  ground  that  if the sale by Ashfaq  were  real  and intended to pass title to Pir Baksh, the plaintiffs would be entitled  to a decree for a declaration that in addition  to the  8  pies share granted to them by the High  Court,  they would  be  entitled to a further 2 as. 13  gundas  share  of Ashfaq  in  the  plaint  A  Schedule  property.   Mr.  Sen’s submission,  however,  was that we should not  entertain  or give  effect  to this claim, because  several  circumstances throw grave suspicion on the reality of the transaction, and that  in any event the claim could not be  accepted  without careful scrutiny of the facts. Having regard to the definite case raised in the  pleadings, we  are not disposed to reject the claim merely because  the same was not pressed in the courts below.  Besides we cannot ignore  the circumstance that the sale deeds Ex.  12(i)  and 12(c)  on which the claim was based were filed in the  trial court,  and Pir Baksh was examined to formally  prove  these deeds as the 31st witness for the plaintiff.  Moreover, even though  as regards certain other transfers, the trial  Judge recorded findings that they were nominal, there was no  such finding  as  regards the sale by Ashfaq.  In view  of  these features,  we  have decided not to reject the claim  of  the plaintiffs based on this ground. There  are,  however,  certain  features  which  throw  some suspicion  on the reality of the transaction which  Mr.  Sen pressed before us which have led us to desist from ourselves passing a decree for this additional share in their  favour. The  circumstances to which Mr. Sen drew our attention  were these; (i) though Ashfaq executed the sale deed Ex. 12(i) on April 18, 1931, he figured as the first plaintiff in Suit 58 of  1931  which was filed on 28th  November,  1931,  without adverting  to  the sale, a piece of  conduct  certainly  not consistent  with  the sale being real and intended  to  pass title; (2) though in the plaint the necessary averments were made  regarding their obtaining the share of Ashfaq  through Pir Baksh, the claim under this head was not pressed  before the trial court; (3) when the plaintiffs preferred an appeal to the High Court from the total dismissal of the suit, they did  not raise any specific ground touching their  right  to this share, nor were any argument                             213 addressed to the High Court on this point; and (4) there had been  no mutation in the revenue records when this sale  was effected  and  Pir  Baksh  who was  examined  as  a  witness admitted  this  fact.   These  circumstances  are  certainly capable of explanation, but they show that the claim of  the plaintiffs  cannot  be  accepted by us  straightaway  and  a decree passed in their favour. In these circumstances, we consider that the proper order to pass  would  be to remit the matter to the trial  Court  for recording  a finding as regards the reality of the  sale  on the   evidence  already  on  the  record  and  to  pass   an appropriate  decree in the suit, that is, if the sale  under Ex.  12(i)  were held to be real, the  plaintiffs  would  be entitled in addition to the 8 pies share decreed to them  by the  High  Court,  to a further 2 as  13  gondas  odd  share belonging  to  Ashfaq which they obtained  under  Ex.  12(c)



through  Pir Baksh, and in the event of the sale  not  being held  to  be real to no more than what the  High  Court  has decreed. With this modification, the appeal is dismissed with costs. Appeal dismissed.