1. This is an appeal under the Letters Patent in a case in which two learned Judges of this Court have differed on a question of law raised before them in a second appeal. As might be expected, the question is one of some delicacy, but in its essence it is simple enough. The facts are as follows:
One Musammat Ashraf-un-nissa died on the 28th of January 1914. Her heirs under the Muhammadan Law were her husband Abdul Rashid, her sister Qudrat-un-nissa and a daughter Kaniz Fatma, at that time a minor.
2. On the 10th of November 1914 Musammat Qudrat-un-nissa filed a suit in which she impleaded Abdul Rashid and Kaniz Fatma as defendants. The suit was one for recovery of possession of the one-fourth share in certain specified zemindari property which had came to the plaintiff by inheritance on the death of her sister. The allegation made in the plaint was that the defendant Abdul Rashid had improperly taken possession of the whole of the zemindari property of the deceased, and that he was purporting to do this in the name and in the interests of his minor daughter Kaniz Fatma. This last allegation was supported by the fact that mutation of names in the Revenue Court had been effected at the instance of Abdul Rashid in the name of Kaniz Fatima.
3. On the 30th of January 1917 the suit was brought out of which the present appeal has arisen. Musammat Qudrat-un-nissa was again the plaintiff and the defendants were the same, namely, Abdul Rashid and Kaniz Fatma. In this plaint the allegations are that the dower-debt due from Abdul Rashid to Musammat Ashraf-un-nissa was Rs. 10,000 which was unpaid on the date of Ashraf-un-nissa's death. Her husband being himself an heir to the estate to the extent of one-fourth, it was assumed that, one-fourth of this debt bad been automatically discharged, inasmuch as the husband had himself inherited the right to receive the same. The plaintiff had obtained a succession certificate in respect of the balance of Rs. 7,500 which then constituted the whole of the debt due to the estate of the deceased. She, sued to recover one-third of this, or Rs. 2,500, for her own benefit and the remainder of Rs. 5,000 for the benefit of the defendant Kania Fatima, whom she described (somewhat loosely) as being 'in collusion' with the first defendant in this matter. The fact of course was that Kaniz Fatima as a minor, living under the guardianship of her father, was not in a position to prefer any claim in respect of her own share in this dower-debt. Kaniz Fatima died while this suit was pending and, after making necessary amendments in the plaint, Qudrat-un-nissa obtained a decree for Rs. 2,500 due to her from the defendant Abdul Rashid alone. The suit was resisted on various grounds, one of the pleas taken being that the dower-debt was not Rs. 10,000, but Rs. 160 only. The suit was decreed by the Trial Court as stated above and an appeal by Abdul Rashid was eventually dismissed by the District Judge, after most unfortunate delay, due to the fact that the defendant bad wrongly filed the appeal in the first instance in this Court. Upon a second appeal the learned Judges of this Court have differed, as already noted, upon the question of law. The result of their difference was that Abdul Rashid's appeal was again dismissed.
4. The question of law is as follows: It was contended throughout that the present suit was barred by the provisions of Order II, Rule 2, of the Code of Civil Procedure, on the ground that Musammat Qudrat-un-nissa was under an obligation by law to have claimed in the previous suit instituted by her on the 10th of November 1914, the relief which she sought in the present suit.
5. In considering this point we are bound to treat the subsequent death of the girl Kaniz Fatima as a mere accident which has no bearing on the determination of the question before us. That question refers us back to the 10th of November 1914, the date of the institution of the first suit. In substance, two more or less distinct points have been argued before us. On the one hand, it has been sought to ignore or put on one side, for the sake of argument at any rate, the position of Kaniz Fatima as a defendant in both suits and to discuss the question only in so far as it affects the defendant Abdul Rashid. The appeal cannot really be decided on this basis and it is not incumbent on us to discuss the purely hypothetical question thus raised at any length. The learned Judge of this Court, who decided in favour of Musammat Qudrat-un-nissa, has referred to an important decision by their Lordships of the Privy Council, Pittapur Raja v. Suriya Rau 8 M. 520 : 12 I.A. 116 : 9 Ind. Jur. 274 : 4 Sar.P.C.J. 638 : 3 Ind. Dec. (N.S.) 356 (P.C.), which comes very near to determining by authority the question now before us. We have also been referred to a number of other decided cases, the most important of which seems to be that of Mahomed Biasat Ali v. Basin Banu 21 C. 157 : 20 I.A. 155 : 17 Ind. Jur. 484 : 6 Sar. P.C.J. 374 : Rafique and jackson's P.C. No. 138 : 10 Ind. Dec. (N.S.) 738 (P.C.). The correct definition of the expression cause of action, which has been quoted in numerous decided cases, is that these words include every fact which it would be necessary for the plaintiff to prove if traversed by the defendant in order to support his right to the judgment of the Court. On the strength of this definition it is contended that in the claim for recovery of possession over a share of the zemindari property the plaintiff's complete cause of action consisted, not only of the fact that she was an heir to one-fourth of the estate of the deceased lady under the Muhammadan law, plus the fact that the property claimed had formed part of that estate, but also of the further fact that Abdul Rashid was wrongfully keeping her out of possession over the same. The Madras case was very similar; but it so happened that the plaintiff in that case had obtained possession peaceably over the immoveable property claimed, after the death of the person from whom she had inherited, and that her cause of action was based upon a subsequent ouster by another of the heirs who was, as in the present case, the husband of the deceased. We think it sufficient to say that we doubt whether a valid distinction can be drawn between that case and the one before us, even if we limit our consideration to the position of the defendant Abdul Rashid.
6. When, however, we pass on to consider the position of the defendant Kaniz Fatima the case seems much clearer. She was beyond question a necessary party to the first suit. Her father Abdul Rashid was sheltering himself behind her and by obtaining mutation of names in the Revenue Court in her favour, he was putting her forward, and not himself, as the rival claimant to the property which Musammat Qudrat-un-nissa was seeking to recover. In order, therefore, to obtain in that suit the relief which she Was asking from the Court, Musammat Qudrat-un-nissa had to implead both Abdul Rashid and Kaniz Fatima. In the second suit, for recovery of the outstanding balance of the dower-debt Musammat Kaniz Fatima again appeared in the array of defendants, but the cause of action as against her was wholly different. The suit was actually being brought in part for her benefit. The cause of action against her, that is to say, the fact which rendered it necessary for her name to appear on the record as a defendant, was that, being a minor girl living with her father, who was the debtor against whom the suit was brought, she was not in a position to join with Musammat Qudrat-un-nissa in preferring any claim against Abdul Rashid. It seems to us, therefore, that the learned Judge of this Court was right when he affirmed the decision pronounced by the two Courts below and overruled the plea based upon the provisions of Order II, Rule 2, of the Code of Civil Procedure.
7. We dismiss this appeal with costs, including fees on the higher scale.