1. The only question for decision in the second appeal is whether the suit out of which it has arisen was barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure.
2. The facts are as follows.--The plaintiff in the suit is one Musammat Qudrat-un-nissa Bibi and it appears that she had a sister named Musammat Ashraf-un-nissa. This lady died on the 28th of January 1914. and left three heirs under the Muhammadan Law, One of these was the plaintiff, Qudiat-un-nissa, the other was her husband, Shaikh Abdul Rashid, and the third was her minor daughter, Musammat Kaniz Fatima.
3. After the death of Ashraf-un-nissa a suit was brought by Musammat Qudrat-un-nissa against her two co-heirs, namely, the husband and the minor daughter of her deceased sister. This suit was brought in the year 1914. In that suit the claim which was made by Qudrat-un-nissa was for the recovery of her share of certain zemindari estate which had belonged to her deceased sister, The two defendants to the suit were, as I have said, the other heirs of Musammat Ashraf-un-nissa. It was alleged in that case that Abdur Rashid, the husband, had collusively got mutation made in favour of the minor daughter in respect of the zemindari property. The claim, however, was, on the face, of it a claim for recovery of plaintiff's share of the zemindari property and for damages.
4. The present suit was instituted in the year 1917 and in this suit the claim is for a share of dower which was owing to the deceased Musammat Ashraf-un-nissa from her husband, Shaikh Abdur Rashid, who is impleaded as the first defendant.
5. The plea that Order II, Rule 2 constituted a bar to the suit was taken in both the Courts below. Both Courts, however, were of opinion that there was no bar under the rule in question, inasmuch as the causes of action were different in the two suits.
6. After hearing the argument in the case, I am of opinion that the judgments of the Courts below are wrong and that the suit was clearly barred by Order II, Rule 2.
7. The question has to be decided with reference to the identity of the causes of action in the two suits, and that question has to be determined with reference to the allegations made by the plaintiff in either suit. We are not in any way concerned with the defences which were raised in the suits nor are we concerned with the nature or character of the relief which was sought. Further, the question must be decided with reference to the substance and not the form of the actions.
8. What, then, was the cause of action in the first suit which was brought in the year 1914? The answer is, that it was the plaintiff's right of inheritance coupled with the refusal of the two defendants who were her co-heirs to give her what she was entitled to, namely, one-fourth of the estate of her deceased sister.
9. In my opinion, it cannot be disputed that the estate which was left by Ashraf-un-nissa and in which the present plaintiff was entitled to a share included all debts which were due to the deceased and embraced the dower debt which was owing to her from her husband.
10. We find that, in the earlier suit the plaintiff failed to put forward her claim to a share in the dower debt which constituted part of her deceased sister's estate. If she is claiming her share in that item of the estate now, in my opinion, this cannot be allowed. I can see no different cause of action for this second suit. The right in which the plaintiff claims is still the game and the infringement of that right is likewise the same, namely, the wrongful withholding by Abdur Rashid of a portion of the, estate of Ashraf-un-nissa. Tie defendant, Abdur Rashid, was a party to the first suit and the cause of action alleged in this suit was then a cause of action which was available to the plaintiff as against Abdur Rashid.
11. I am unable to agree that the fact that the plaintiff is required by law to obtain a succession certificate before she can recover her share of the dower debt owing to the deceased's estate, in any way affects the question under consideration. The right of the plaintiff rests upon the fact that she is her sister's heir under the Muhammadan Law, and the want of a succession certificate was no bar to her making the present claim in the earlier suit, although she could not get a decree until she had obtained and filed the certificate.
12. In my opinion, therefore, the suit ought to fail and this appeal ought to be allowed. My learned colleague is of a different opinion and, that being so, the result will be that the appeal must fail and must be dismissed with costs.
Kanhaiya Lal, J.
13. The plaintiff is the sister of Musammat Ashraf-un-ni&sa;, who was married to Shaikh Abdur Rashid. Musammit Ashraf-un-nissa died on the 28th January 1914, leaving a house and certain landed property. Her dower debt had also remained unpaid. Her heirs were her sister, the present plaintiff, who was entitled to a one-fourth share, her husband, who was also entitled to a one-fourth share, and her daughter, Musammat Kaniz. Fatima Bibi, who was entitled to the remainder.
14. On her death mutation of names was effected in respect of the landed property in favour of Musammat Kaniz Fatima Bibi to the exclusion of the other heirs. A suit was thereupon filed by the plaintiff for the recovery of her share of the landed property by inheritance from her sister and mesne profits. Her allegation was that Shaikh Abaur Rashid had got the name of his daughter, Musammat Kaniz Fatima Bibi, entered, in respect of the zemindari property left by Musammat Ashrat-un-nissa in the revenue papers on the 26th May 1914 and they were not delivering to the plaintiff her share therein. In regard to the, house the plaintiff stated that she was in possession thereof. The cause of action was described in the plaint as having arisen on the 28th January 1914, the date on which Musammat Ashral-un-nissa died, and the 26th May 1914, the date on which mutation of names was effected in favour of, Musammat Kaniz Fatima Bibi to the exclusion of the plaintiff. Musammat Kaniz Fatima Bibi was then a minor and was represented in that suit by her paternal uncle, Khalil Ahmad, who was her guardian ad litem. Shaikh Abdur Rashid was also a party to the suit; in fact, a claim for damages was laid against him. The defence in that suit was that Musammat Ashraf-un-nissa had made a gift of the property in her lifetime in favour of her daughter; but it was unsuccessful and the claim of the plaintiff for possession of her one-fourth share was decreed against both the defendants.
15. The plaintiff subsequently obtained a succession certificate under Act VII of 1889 in respect of Rs. 7,500 on account of that portion of the dower debt due to Musammat Ashraf-un-nissa, which was payable after her death to the plaintiff and Musammat Kaniz Fatima Bibi as her heirs. The present suit has been filed by the plaintiff for the recovery of that amount from Shaikh Abdur Rashid. Musammat Kaniz Fatima was impleaded as a pro forma defendant because she had not joined in the suit. She died after the institution of the suit; and as Shaikh Abdur Rashid was her sole heir, the plaintiff had to give up that portion of her claim. She insisted, however, on getting all the costs which she had incurred on the entire claim. The Courts below have decreed her claim for her one-fourth share of the dower debt against Shaikh Abdur Rashid and have awarded her the entire costs originally incurred by her in the suit.
16. The main question for consideration in this appeal is whether the claim of the plaintiff is barred by Order II, Rule 2, of the Code of Civil Procedure. The object of that provision is to prevent the splitting up of claims in respect of the same cause of action, or, in other words, to save the defendant from being harassed by successive suits where the cause of action is identical. The plaintiff has unquestionably derived her title by inheritance from Musammat Ashraf-un-nissa, but the cause of action in the previous suit was the exclusion of the plaintiff from certain property, in which the plaintiff had inherited a share, by Musammat Kaniz Fatima Bibi; or by her and the present defendant. The cause of action in the present suit is for the recovery of the debt which the defendant was personally liable to pay. The former suit was filed in the Court of the Munsif at Allahabad. The present suit has been filed in the Court of the Subordinate Judge. The exclusion took place in the former case on the 26th May 1914 when mutation of names was effected in respect of the property left by Musammat Ashraf-un-nissa in favour of Musammat Kaniz Fatima Bibi, and the profits due to the plaintiff on account of her share in the inheritance were withheld from her. The present suit is a suit for the recovery of a debt due by Shaik Abdur Rashid and the cause of action for the suit is his refusal or failure to pay that debt to the plaintiff and Musammat, Kaniz Fatima Bibi, who are entitled to the same. In the former suit the liability was enforceable against Musammat Kaniz Faitma Bibi or any other person who might have been in possession of the property then in dispute. In the present suit the liability is personal to Shaik Abdur Rashid and is enforceable against him by the plaintiff and. by Musammat Kaniz Fatima Bibi, who was a defendant in the previous suit by his arrest or by the sale of his property, personal or otherwise. A suit for the recovery of a debt due to Musammat Ashraf-un-nissa, the sister of the plaintiff, against the debtor does not stand on the same footing as a suit for the enforcement of a right of inheritance against persons in possession of the property, said to have been inherited by the plaintiff and those persons jointly. A cause of action postulates the existence of a right and its infraction; the ground of origin of that right makes little difference. In the case of Pittapur Raja v. Surifa Rau 8 M. 520 : 12 I.A. 116 (P.C.) : 9 Ind. Jur. 274 : 4 Sar. P.C.J. 638 : 3 Ind. Dec. (N.S.) 356 a person who was in possession of certain property which he had obtained by a devise from another person was success fully resisted by a party when he applied for the entry of his name in the revenue papers. He subsequently filed a suit against him, to obtain a cancelment of the entry and for possession and got a decree which he followed by riling a suit for the recovery of his share under the same devise of certain moneys, jewels and effects which were in possession of that party. The origin of the title in each case was the same; but it was held by their Lordships of the Privy Council that the cause of action for each of those suits was different. The liability to pay the dower debt being personal to the defendant-appellant, the cause of action for the suit to enforce the personal obligation is not the same as that in the previous suit which was brought to enforce a right of inheritance in the property over which Musammat Kaniz Fatima Bibi or she and her father had taken possession on the death of Musammat Ashraf-un-nissa to the exclusion of the plaintiff.
17. The suit as originally filed, moreover, included a claim for the share of the debt due to Musammat Kaniz Fatima Bibi. The right of the plaintiff to recover that share accrued when she obtained a succession certificate under Act VII of 1889 on the 8th December 1916. The claim, so for as it relates to that portion, is admittedly not affected by the institution of the previous suit.
18. A question has been raised as to the costs awarded to the plaintiff on the entire claims but as the suit originally instituted was rightly brought on behalf of both the plaintiff and Musammat Kaniz Fatima Bibi, the order passed by the Court below in regard to costs is justified. I would, therefore, dismiss the appeal with costs, including fees in this Court on the higher scale.
19. The order of the Court is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.