S.R. Das Gupta, C.J.
1. These two appeals arise out of a suit instituted by the appellant in S. A. 56/52-53 for a declaration of title and for possession. The suit was dismissed by the trial Court. On appeal, the decree of the trial Court was reversed and the plaintiff was declared entitled to 2/3 share of the suit property and the defendant to the remaining 1/3 share. Both the parties felt aggrieved by the said decision and each has filed an appeal against the same. S. A. 92/52-53 has been filed by the defendant in the suit and S. A. 56/52-53 has been filed by the plaintiff.
2. The plaintiff's case is that he had purchased the suit properties under Exhibits A and B on 23-4-1943 and 3-5-1943. The allegation in the plaint is that the said properties belonged to one Shamanna and his two sons, Narayana and Subrahmanya, who are members of an undivided joint Hindu family, and they sold the said properties to the plaintiff and put him in possession thereof.
The defendant claims under an agreement for sale executed by Shamanna on 26-9-1942. That document, according to the defendant, conferred absolute right on him over the properties in suit. The defendant's further case was that in pursuance of the document he was put in possession of the said properties and the plaintiff was fully aware of the said possession and title of the defendant. In the premises the defendant contended the plaintiff was non-suited and was not entitled to maintain the said suit.
3. It appears that there was a previous suit instituted by the plaintiff against several defendants including the present defendant for a declaration of title and for an injunction. The said suit ultimately came up to this High Court for final decision. This Court took the view that in order to succeed in the case as framed by the plaintiff the plaintiff must establish that he was in possession of the property, but it was clear that the possession of the property was not with the plaintiff.
In the premises this Court came to the conclusion that the finding of the learned Subordinate Judge that the 1st defendant was in possession of the properties was correct and in view of the decision of the Privy Council repeated in Joseph Klein v. Eliahu ( Leo Heiman, AIR 1949 PC 53, the plaintiff could gain nothing by the declaration asked for unless he proceeded to take necessary action for recovery of possession of the lands of which he claimed to be the purchaser. In that view of the matter, this Court did not think it proper to go into the question of title and dismissed the suit.
4. The present suit has been filed by the plaintiff and the title claimed in this suit is the same which was claimed in the earlier suit. In the present suit, however, there is a claim for possession which was not made in the earlier suit.
5. At the hearing I first took up S. A. 92/52-53, which is the appeal filed by the defendant against the decision of the lower appellate Court. The first ground urged before me in support of that appeal by the defendant was that this suit was not maintainable and was barred by the provisions of Order 2. Rule 2, Sub-rule. 1, 2 and 3 of the Code of Civil Procedure. The said sub-rules read as follows:
'(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion or his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.'
The learned Advocate for the appellant in this appeal placed reliance mainly on Sub-rule 3 of Rule 2, of the said order. He contended that the plaintiff in the earlier suit was entitled to ask for possession find in view of the fact that he omitted to do so without the leave of the Court to sue for such possession, he shall not be entitled to sue for that relief' in this suit.
The learned Advocate further submitted before mo that the plaintiff's claim is also barred by the principle of res judicata. He contended that the decision in the earlier suit prevents the plaintiff from filing this suit. In my opinion, this contention of the learned Advocate for the Appellant cannot be accepted as sound. As for the applicability of Sub-rule (3) of Rule 2 of the Code of Civil Procedure, it seems to me that the said sub-rule would apply in a case where the plaintiff was entitled to more than one relief in respect of the same cause of action. In other words, the cause of action must be the same in both cases and if the plaintiff in the earlier suit had omitted to ask for a relief which arose out of the cause of action on which the said suit was based, then, he would be debarred from asking for the same relief in a subsequent suit based also on the same cause of action.
In this case, however, the cause of action in the earlier suit, as framed, was not exactly the same as the cause of action on which the present suit is based. In the earlier suit the plaintiffs case was that he was in possession and the defendant wanted to interfere with the said possession and, therefore, he asked for an injunction. In the present; suit, the plaintiff's case is that ho is not in possession and therefore he asks for possession.
It is clear, therefore, that in the earlier Suit, as framed, the plaintiff could not have asked for possession. That relief, in my opinion, the plaintiff was not entitled to in the said suit. But, in this suit, he would be entitled to ask for that relief. In the premises, I hold that Sub-rule (3) of Rule 2 has no application to the present case, the causes of action being different. There was some discussion before me as to the exact meaning of 'cause of action.'
In my opinion, it is now well established that 'cause of action' means the bundle of facts which the plaintiff must prove in order to succeed in his action. In the earlier case, one of the facts which the plaintiff had to prove was that he was in possession and therefore was entitled to injunction. In this case, one of the facts which he has to prove is that he is not in possession & therefore he is entitled to possession. This being the position, the cause of action cannot be said to be the same in both cases.
6. I am also of the opinion that the principle of res judicata does not apply to the present case for the obvious reason that the earlier case, so far as it related to declaration of title, was not heard, and finally decided. What was heard and finally decided was that the plaintiff was not in possession. Nothing else was finally decided in the said suit. In this case, the plaintiff is not contending that he is in possession. He proceeds on the footing that he is not in possession. Therefore, in my opinion, it cannot be said that the doctrine of res judicata applies to the present case. The preliminary objection taken by the learned counsel for the appellant must therefore fail.
7. Coming to the merits of this appeal, the learned Advocate for the appellant urged two grounds before me. In the first place, he contended that the lower appellate Court was wrong in holding that the document executed in his client's favour by Shamanna was merely an agreement tot-sale and not a sale deed. In order to appreciate this contention, it would be necessary to refer to the terms of the said document (Exhibit I). The terms material for the present purpose read as follows :
'I have agreed to execute the regular sale deed on a stamp paper within five months from this date, get the signature of my sons relating to the said document, see that there is no scope of any kind of trouble in respect of the said property under sale, to receive the balance of Rs. 1350/- before the Sub-Registrar at the Office of the Sub-Registrar of Yolanda excluding Rs. 50/- taken this, day out of the sale price and get it registered. It this does not take place so, properly and in time this karar itself shall be considered as a sale deed.' It was urged by the learned Advocate for the Appellant in this appeal that on the expiry of the five months and on the events which have happen-ed, the document in question became a regular sale deed. He relied, in support of this contention, on a decision of the Bombay High Court in the case of Kondu Kanhoji v. Vishnu Moreshvar, ILR 37 Born 53. The learned Advocate also relied on Section 5 of the Transfer of Property Act which inter alia lays down that 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons: and 'to transfer property' is to perform such act.'
The learned Advocate laid stress on the use of the words 'in present or in future' and contended before me that the said words govern the word 'conveys' and not the word 'property'.
In support of that proposition he relied on the case of Earna Boyi v. Narasimiah Setty, 48 Mys HCR 655. It cannot be disputed that their Lordships in the said case took the same view which is now pressed before me by the learned Advocate for the Appellant. I, however, feel some difficulty in accepting that proposition. In view, however, of my decision on other questions, to which I shall hereafter refer, a decision on this point becomes wholly immaterial for the purpose of this appeal and I need not, therefore, express any final opinion on this point.
The next contention urged before me by the learned Advocate for the appellant was that, though the document in question be not held to be a sale deed hut a mere agreement for sale, even then, in view of the provisions of Section 53-A of the Transfer of Property Act, this suit should have been dismissed. He further urged before me that although both the Courts came to the conclusion that his client was entitled to the benefit of Section 53-A of the Transfer of Property Act the lower appellate Court has held that the plaintiff is entitled to 2/3rd share of the suit properties and his client was entitled to 1/3 share. This view, he contended before me, was incorrect and the decision of the lower Appellate Court should be set aside.
8. Section 53-A of the Transfer of Property Act reads as follows:
'Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract though required to be registered, has not been registered, or, where there' is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee transfer elias taken or continued in possession other than a right expressly provided by the terms of the contract.'
It was urged before me by the learned Advocate for the appellant that all the requirements of Section 53-A had been fulfilled and there was a contract for sale and in performance of that contract his client had already been put in possession and that his client was also willing to perform his part of the contract. In that view of the matter, he urged that, though the document in question may not he a sale deed, even then the plaintiff, who gets his title from the transferor, should be debarred from enforcing his right against the transferee.
9. This contention of the learned Advocate for the Appellant, in my opinion, can be accepted only upto a certain limit. So far as the right of Shamanna is concerned, Section 53-A, in my opinion, is a bar to the enforcement of that right. But it cannot be said that, so far as the rights of the sons of Shamanna are concerned. Section 53-A at fords any protection to the appellant. It appears that the document in question was executed by Shamanna alone and not by any of his sons. I am for the moment proceeding on the assumption that the property in question is Joint-family property of the father, i. e., Shamanna, and his two sons. On that basis, this document even though it is an agreement for sale is operative so far as the interests of Shamanna are concerned but not with regard to the interests of his two sons who were not parties to the same.
Section 53-A prohibits the transferor or any persons who were claiming under him from enforcing against the transferee in the circumstances mentioned in the said section any right in respect of the property of which the transferee has taken, or continues in, possession. The transferor in this case is Shamanna and not his two sons. Therefore the section itself on the face of it would be operative so far as the interests of Shamanna are concerned, and in that view of the matter the lower appellate Court seems to be right in holding that the plaintiff can only get a declaration of his title with respect to 2/3 share in the property which belongs to the two sons of Shamanna and that 1/3 share therein by virtue of the operation of the said section would go to the defendant. This view, in my opinion, is correct.
10. Mr. Krishnamurthi, however, appearing on behalf of the respondent in this appeal, strenuously urged before me that Section 53-A cannot be availed of by the appellant in this case. His argument was two-fold. In the first place, he contended that it must be shown that the transferee has either performed or is willing to perform his part of the contract. He contended that there is no evidence, and it has not been found either, that the transferee has performed or is willing to perform his part of the contract, Mr. Krishnamurthi further urged that there is also no plea that the transferee has performed or was willing to perform his part of the contract.
In my opinion, even though this question, viz., the applicability of Section 53-A of the Transfer of Property Act was not raised by the defendant in his pleading, the same was fully gone into at the hearing by both the Courts and both the Courts have found that the appellant before me was entitled to avail himself of the provisions of the said section.
I will not be justified, in the circumstances, in taking a too technical view of the matter by-holding that in view of the fact that there was no specific averment in his pleadings by the defendant on this question, ho should not be allowed to avail himself of the provisions of the said section. On the question as to whether or not the transferee has performed or is willing to perform-his part of the contract, it appears that there is a finding of the trial Court which, in my opinion, can be taken to be a clear finding of the fact that the defendant was willing to perform his part of the contract. After narrating all the facts relevant to this question, the learned Munsiff says:
'As Shamanna did not execute the sale deed, the defendant deposited the amount in Mysore Government Savings Bank as per the pass hook Exhibit XVII. The defendant could not do anything better under those circumstances.' In my opinion, this should be considered as a finding that the defendant was willing to perform his part of the contract. It is true that there is no-such clear finding in the judgment of the lower appellate Court. All that the said Court mentioned was that the conditions as laid down in Section 53-A were all fulfilled. The learned Advocate for the appellant contended before us that though put in a general form the said statement implies that the condition, viz., that the transferee was willing to perform his part of the contract, was also fulfilled. Had it not been the fact that there is a clear finding on this point by the trial Court and the view taken by the trial Court as to the applicability of Section 53-A to this case was accepted by the lower appellate Court, I would have perhaps sent the case back to the lower appellate Court for a finding on this point. But it seems to me that having regard to the fact that there is a clear finding on this point by the lower appellate Court and there is a statement, although of a general nature, viz., that the conditions laid down in Section 53-A have been fulfilled in the judgment of the lower appellate Court, T do not think it would be right to send the case back to the said Court for purposes of corning to a clearer finding on this point.
Apart from this as Mr. Krishnamurthi himself admitted before me, the condition as to willingness must subsist up to the date of hearing of the matter i.e., even up to the date of hearing of this appeal. I put to the learned Advocate for the appellant whether or not he was willing to deposit the sum of Rs. 1350/- in the trial Court and he expressed his willingness to do so and gave an undertaking on behalf of his client to that effect. In my opinion, therefore, it must be held that the transferee was willing to perform his part as the contract.
11. The next contention urged by Mr. Krishnamurthi was that, in view of the fact that the property in suit was an undivided property in which there were three co-sharers and Shamanna was only one of such co-sharers, Section 53-A would not be applicable to the present case. In other words, he contended, in the first place, that the agreement in question cannot be said to be a valid document and, in the second place, the entire property was not capable of being transferred and possession cannot also be given by virtue of this document.
For all these reasons, Mr. Krishnamurthi contended before me, Section 53-A has no application to the present case. He relied, in support of his said contention, on two decisions, one of the Calcutta High Court and the other of the Madras High Court, viz. Bharat Chandra v. Ramjan, 45 Cal WN 489 and Rattayya v. Chandrayya, AIR 1948 Mad 52G. The decision in the Calcutta case was the decision of Mr. Justice Sen. sitting singly. The decision of the Madras High Court was also of a single Judge.
In the Calcutta case what happened was that the guardian of a minor purported to sell, for himself and as the guardian of the minor, certain properties. In other words, by virtue of that sale he purported to transfer not only his own interest but also the interests of the minor. Mr. Justice Sen, in the circumstances of that case, came to the conclusion that the contract of sale, so far as it related to the minor's interests, was not valid.
In that view of the matter, His Lordship held that Section 53-A of the Transfer of Property Act could not he availed of so far as the minors' share in the property was concerned. Then the question arose as to whether or not Section 53-A can be availed of only with respect to tbe guardian's share in the properly. His Lordship held that, in his opinion, the said Section could not be availed of also with respect to the guardian's share in the property.
The view expressed by His Lordship was that the contract contemplated by Section 53-A must be a completed and valid contract and that a person cannot seek the benefit of Section 53-A on the basis of a contract forbidden by law or on the basis of negotiations which had not matured into a contract. This, it seems to me, was the ratio decidendi of that decision. That case, in my opinion, is clearly distinguishable from the present. In the present case, it cannot be said that the agreement for sale was invalid. It is one thing to say that the agreement for sale had no binding effect on the
rights of other persons who were not parties to it and it is a quite different thing to say that the agreement for sale was invalid. The agreement in this case is valid although it may not be binding on the interests of Shamanna's sons who were not parties thereto in the properties in question. In other words, the agreement is a binding agreement between the parties and must be held to be valid. In this view of the matter the present case stands on a different footing from the case which was decided by Mr. Justice Sen.
Section 53-A says that in the events mentioned in the said section, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of such transfer. The question in this case is whether or not the transferor, that is to say, Shamanna or the plaintiff so far as he claims under him, shall be debarred from enforcing against the defendant any right in respect of the property. In this view of the matter I am of option that the decision of the lower appellate Court is correct.
In this case, the transferor was only Shamanna and the transferee was the defendant and as between them Section 53-A would be operative. I cannot accept the view propounded before me by Mr. Krishnamurthi that, in view of the fact that the properly belongs also to other persons, Section 53-A would not apply. Those persons, it they have any right in the property, can enforce the same in proper proceedings. That would not prevent the application of Section 53-A as between the parties to the document itself.
12. As for the other decision cited before me by Mr. Krishnamurthi AIR 1948 Mad 526, that case is also distinguishable from the present one. What His Lordship laid down in that case was that, where the contract for sale of ancestral land by the father is on the face of it personal to the father, the defendant vendee who is in possession in pursuance, of the contract is not entitled to rely on it, as against the son, in a suit for possession by him. With this proposition I have no quarrel find it concurs with me view which I have just now expressed.
The document in the present case, i.e., thecontract for sale, would not be operative as against the sons of Shamamia; but that does notmean that, as against the father or as against theinterest of the father, it would have no effect. Inthat view of the matter I am of opinion that thatcase does not help Mr. Krishnamurthi on the point.That being so, I hold that, on the assumption thatthe properly in question is joint-family propertyin which the father and the two sons had equalshares, the view taken by the lower appellateCourt is correct. ,
13. The further questions which arise are (1) Whether or not the properly in question is joint-family property; and (2) Whether or not there was sufficient nucleus. 1 should have mentioned that this property was purchased by Shamanna. The ground urged before me by the learned Advocate for the appellant was that it has to be established, in the first place, that the father and the sons were members of a joint-family and, in the second place, that there was sufficient nucleus out of which Shamanna would have purchased this properly. The learned Advocate contended that there was no material on which it was possible to hold that there was sufficient nucleus from which this property would have been purchased.
14. On these points there is a clear finding by the lower appellate court. It has come to the conclusion that there was sufficient family nucleus to purchase the suit properties as well and therefore it was proved beyond all doubt by the evidence of the defendant himself that the suit properties are all joint-family properties, some of them being purchased by the Manager having sufficient nucleus.
The learned Advocate, however, contended before me that there is no such finding in the judgment of the trial court. I, however, find that in his judgment the learned Munsiff has stated that 'the case proceeded on the ground that the suit properties are joint family properties of Y. N. Shamanna and his two sons' and on that basis the learned Munsiff has proceeded to discuss the question as in whether or not there was sufficient necessity which justified the transfer by the father of the said joint-family properties.
There is nothing to show that this statement of the learned Munsiff, viz. that the case proceeded on the ground that the suit properties were the joint-family properties of the lather and the two sons, is incorrect. That being so, I find no reason to interfere with the finding of the lower appellate Court which is clear on the point and which is a finding of fact. It has been laid down by the Supreme Court in Srinivas v. Narayan : 1SCR1 , that whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus.
On the question as to whether or not there was sufficient nucleus which is a question of fact, the lower appellate court has come to clear decision. As for the trial court I have mentioned that the case before it proceeded on the basis that the properties in question were joint-family properties. I have myself gone through the materials which are on record in this case and on perusal of those materials it seems to me that it is not possible to say that there is no evidence on which the lower appellate court could come to the conclusion that there was sufficient nucleus out of which the suit properties would have been purchased. It is possible on these materials to hold that there was sufficient nucleus.
I therefore hold that on both these grounds the contention of the learned Advocate for the appellant must fail. Having come to the aforesaid conclusion the question as to whether or not the document executed by Shamanna in favour of the defendant was an agreement for sale or a sale deed loses all importance The said document, whatever may be its true effect cannot be binding on the interest of the two sons of Shamanna in the properties in question.
15. In the result, this appeal fails and is dismissed. Each party to pay its own costs of this appeal.
16. As for S. A. 56/52-53, my conclusion is the same and the plaintiff's appeal must also be dismissed. Each party to pay its own costs of this appeal.
17. There will be a further order that the defendant will deposit the sum of Rs. 1350/- as the balance of purchase price in the first Court within two months from this date. The defendant through his Advocate undertakes to this Court that he will deposit the said amount within the said date. The question as to who would be entitled to that money and to what extent is left open.
18. Appeals dismissed.