1. The plaintiff claiming as the daughter's son and legal representative of one Ramien, deceased, instituted O.S. No. 26 of 1890 (on the tile of the District Munsif's Court at Trichinopoly) for the redemption of a usufructuary mortgage of about 50 cawnies of land for Rs. 250. The mortgage was alleged to have been made by Ramien, under an instrument dated 18th March 1856. The defendants, while denying the plaintiff's relationship to Ramien as well as the mortgage sued upon, pleaded that 14 out of the 50 cawnies had been usufructuarily mortgaged to them by Ramien for Rs. 500, under an instrument dated 5th February 1853 and that the same had been sold to them subsequently as also the remaining 36 and odd cawnies.
2. Without deciding the question of the plaintiffs relationship to Ramien the suit was dismissed on the ground that the mortgage sued upon was not proved, and was in fact, fictitious and the decision was confirmed on appeal. The plaintiff preferred a second appeal and claimed a decree in respect of the 14 cawnies on the footing of the mortgage of the 5th February 1853. which the defendants set up. But the High Court declined to grant such relief on the grounds that the said mortgage was not admitted to be a subsisting mortgage and that the plaintiff not having sued, in the alternative, on that mortgage, no issue could be raised and tried in respect of it in that suit.
3. The plaintiff brings the present suit substantially against the same defendants for redeeming the 14 cawnies on the footing of the mortgage of the 5th February 1853, The District Munsif found that the plaintiff was the daughter's son and legal representative of the mortgagor, Ramien, and that the sale relied upon by the defendants was not true, and. holding that the suit was not barred as res judicata by the previous suit, he decreed redemption in favour of the plaintiff. But the District Judge on appeal dismissed the suit on the ground that, when he brought the former suit; he was aware of the mortgage now sued upon, and that he was therefore, barred by the rule of res judicata from bringing this suit.
4. In support of this second appeal which has been preferred against the said decision, it is contended that even assuming that the finding of the District Judge that the plaintiff was aware of the mortgage of 1853 when he instituted the former suit cannot be successfully impugned in second appeal, the present suit is not barred by Section 43 or Explanation II to Section 13 of the Civil Procedure Code. In our opinion this contention is well founded and the case must be remanded for disposal on the merits.
5. The contention of the learned pleader for the respondents in support of the decision appealed against is two-fold firstly that under Section 42 and Explanation II to Section 13 of the Civil Procedure, Code a plaintiff should frame his suit so as to include all causes of action which he may rely upon--in the alternative or otherwise--in support of the relief which he seeks and that if he omits to make any of them a ground of attack in the suit he will be debarred from maintaining a subsequent suit based on the cause of action so omitted ; secondly, that the present suit and the former suit are not, so far as the 14 cawnies in question are concerned, based on different causes of action, but on one and the same cause of action, and that the present claim should under Section 43, also have been included in the former suit and made a ground of attack (under Explanation II to Section 13, Civil Procedure Code.)
6. The first contention is mainly based on the argument that the phrase 'the subjects in dispute' occurring in Section 42 connotes the corpus or object-matter of the claim and that, therefore, all possible claim to the same should necessarily be offered for decision in the suit. In our opinion the expression the subjects in dispute signifies the jural relation between the parties to the suit, for the determination of which the suit is brought. In other words, the object of Section 42 is to require the plaintiff to bring forward his whole case as to the matter of litigation on the question of right involved in the suit and not to require him to unite all the causes of action which he may have against the defendant in respect of the corpus or object matter of the suit. This was first clearly laid down by the Privy Council in Pittapur Raja v. Surya Rao I.L.R. 8 M. 520 in a case arising under Act VIII of 1859. Referring to Section 7 of that Act (corresponding to Section 43 of the present Code), their Lordships observed as follows: 'That section does not say that every suit shall include every cause of action or every claim which a party has, but every suit shall include the whole of the claim arising out of the cause of action, meaning the cause of action for which the suit is brought.' In that case the plaintiff was the devisee of a certain village and also of a certain share in moveable property belonging to the testatrix. The plaintiff, after having obtained possession of the village and having remained in quiet possession thereof for some time, was dispossessed by the defendant. The plaintiff, therefore, brought a suit against the defendant who denied the will and claimed the property as having devolved upon him; but a decree in ejectment was passed in the plaintiff's favour. He afterwards brought another suit to recover from the same defendant, the share of personal property which had been bequeathed to him under the same will but had been withheld from him. The Judicial Committee, in overruling the plea of res judicata which was relied upon as a bar to the second suit, held that the claim in respect of a share in the personalty was not one arising out of the cause of action which existed in consequence of the defendant having improperly turned the plaintiff out of possession of the village and that it was a distinct cause of action altogether and did not at all arise out of the other, and in distinguishing Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jadonath Bose v. Shumsoonnissa Begum 11 M.I.A. 551 which was relied upon in support of the plea of res judicata, their Lordships observed as follows;
It is not like the case of the conversion of Several things. There the act of conversion of several things is one cause of action and you cannot bring an action for the conversion of one of the things and a separate action for the conversion of another. The conversion of the whole is one claim and one cause of action.
7. The above decision was relied upon and followed by the same tribunal in Amanat Bibi v. Imdad Hussain L.R. 15 IndAp 106. In the former case the first suit was brought to recover the land in dispute from the defendant (the talukdar) on the ground that the plaintiff was entitled to the same as under-proprietor. The suit was dismissed on the merits. The second suit was brought to recover the property as proprietor, on paying to the talukdar the arrears of revenue paid by him to Government, treating the same as having been paid on his account. This suit was also dismissed on the ground that a conditional sale by the' plaintiff to the talukdar in February 1853 had become absolute about the end of 1853. The third suit was brought to recover the same property on the basis of a mortgage, made to the talukdar in June 1854 alleging that the mortgage debt had been satisfied but offering to pay any balance that might be found due on taking accounts. Their Lordships of the Privy Council in overruling the plea of res judicata under Section 13 of Act X of 1874, and the plea under Section 7 of Act VIII of 1859 observed as follows: 'Is that determination a bar to this suit, founded as the suit is, on a mortgage recognized as subsisting in 1854. The Section 13 of the Act of 1877 as amended by the Act of 1879, which is applicable to the case, is in these terms: 'No court shall try any suit or issue in which the matter directly and substantially in issue having been directly and substantially in issue in a former suit in a Court of competent jurisdiction between the same parties or between parties under whom any of them claim, litigating under the same title has been heard finally decided by such Court.' Now what was the question in issue in the former suit? The question was whether the plaintiff was entitled to recover the property which had been transferred by the Government to the talukdar, on re-paying to the talukdar the arrears of revenue which he had paid to Government. The matter in issue in this suit is the respondent's right to redemption under a mortgage deed. It may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under a purchase from the mortgagor, But if it be established that the respondent was mortgagor in 1854, with the right of redemption, why should he be barred of his right merely because at an earlier date he may have had no right to the property at all? Then comes the question was the respondent bound to have brought forward his present claim in the former suit? Section 7 of Act VIII of 1859 is in these terms: 'Every suit shall include the whole of the claim arising out 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, If a plaintiff relinquish or omit to sue for any portion of his claim, a suit for the portion so relinquished or omitted shall not afterwards be entertained.' That section has already been under the consideration of this Board in Raja of Pittapur v. Surya Rao L.R. 12 IndAp 116 and the commentary upon it is: That section does not say that every suit shall include every cause of action or every claim which the party has, but every suit shall include the whole of the claim arising out of the cause of action--meaning the cause of action for which the suit is brought'. The respondent's present claim certainly did not arise out of the cause of action which was the foundation of the former suit L.R. 15 IndAp 11
8. These decisions were no doubt passed when the old Code of Civil Procedure (Act VIII of 1859) was in force; but an examination of the different sections of the present Code bearing upon this question also leads to the same conclusion. Section 50(of Act XIV of 1882) which prescribes the essential particulars of a plaint lays down, in Clause (d), that the plaint must contain a plain and concise statement of the circumstances constituting the cause of action and where and when it arose. Section 42 provides that every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute (thus preventing further litigation concerning them), Reading this in the light of the next following Section 43 and of Section 50, Clause (d), it is clear that the expression 'subjects in dispute,' means the cause of action or the subject matter of litigation, that is, the right which one party claims as against the other and demands the judgment of the Court upon Borst v. Corey 15 New York 509; Jacobson v. Miller, 41 Michigan 93: The penalty for non-compliance with Section 42 is provided for partly in Section 43 and partly by Explanation (I to Section 13; The former provides that if the plaintiff omits to include a portion of the entire claim which has arisen at the date of the suit, out of the cause of action on which the suit is based, he shall be precluded from suing again in respect of such portion ; and the latter provides that the matter of every ground which the plaintiff might and ought to urge in support of the cause of action on which the suit is founded shall be deemed to be a matter directly and substantially in issue in the suit and decided therein whether such ground was actually relied upon or not in the suit. In other words, Section 43 requires that the whole claim which has arisen, at the date of the suit, out of the cause of action, should be included in the suit so as to avoid splitting of a claim or claims arising out of one and the same cause of action. And Explanation II to Section 13 enjoins that every ground which could and ought to have been urged in support of the claim actually made in the suit shall be deemed to have been adjudicated upon therein; whether it was actually urged or not. The explanation has introduced no innovation in the law of res judicata; nor does the Code attempt to define what are the matters which might and ought to made grounds of defence or attack in every suit commenced by a plaint framed in accordance with Sections 42 43 and 50:
9. The whole law bearing upon the question now under consideration has been critically examined and elucidated by Scotland C.J. and Holloway, J. in and Chinnaya Mudali v. Venkatachalam Pillai 3 M.H.C.R. 320 and the application of that decision to Muthumadeva v. Sevattamuthu 7 M.H.C.R. 160 has been explained by Morgan, C.J. and Hollow ay., in their judgment in that case. the following extracts from the judgments in the two cases are every instructive and may with advantage be quoted here:
10. I take it to be clearly established that there must be not only the same property or subject of demand in dispute, either wholly or in part, between the same parties or their privies; but it must also appear that the indentical question of right or title had before been in judicio * * * *I take it to be also clear, as a genera rule, both on principle and authority, that when a question of right or title has been adjudicated upon in a suit the bar of the judgment cannot be avoided by suing on a new form of claim or on ground of relief which might have been, but was not, raised or determined in the former suit, if such claim or ground arises out of and depends upon the same right or title as that which was directly in question in the former suit * * * * A decree in a suit by a person claiming as heir or coparcener could be no bar to a second suit brought to try his right as donee or devisee of the same property, for the question of right would be different unless the latter right appeared to have been in question in the first suit as in the recent case of Udaiya Tevar v. Katama Nachiar 2 M.H.C.R. 131, (affirmed on appeal to the Privy Council). But a decree in a suit for partition of family property would, in the absence of special circumstances, be, I think, a bar to a second suit for relief on the grounds not before raised, that the co-sharer or one of the co-sharers was illegitimate or had been removed out of the family by adoption or that part of the property was the self-acquisition of the plaintiff, because it would be a second time litigating the question of co-parcenary right which was the immediate object-matter of the first suit. (pp 322-324) * * * *
11. The whole case of the parties as to the matter of litigation must be brought forward. Taking the words 'matter of litigation' to mean 'question of right' which is the only proper sense in questions of res judicata there is no doubt of the perfect correctness of this opinion and the Vice. Chancellor expressly says that the items of account brought forward by the bill were matters of which an account might have been taken in the suit. The matter of the litigation was--'What sum is due on the transactions between the parties'--and the judgment of the Court on that question was of course res judicata both as to items brought forward and items, not brought forward. It was simply Eastmore v. Hawes in equity and the meaning of the rule is not that a decree will bar a man as to matters never raised, if they are matters relating to the external object of the litigation but as to all matters which were relevant and examinable upon the question of right at issue between the parties, In Hunter v. Stewart VIII Jur. 317, Lord Westbury very distinctly confines to the questions of right raised, the. operation of res judicata ; * * * and it (the decision) is also a distinct repelling by the highest English authority of any such rule as has been supposed, that, if any object-matter is brought into question, all possible claims thereto are necessarily offered for decision and that a man is equally barred from any future suit whether he has submitted a particular kind of claim or not' 3 M.H.C.R. 332.
The ground of denying the bar by res judicata is that he there put his right of inheritance on the ground of sonship by the Pattamastri, and that he puts it now upon the ground that he is the eldest son of his father. It appears that this fact was before the Civil Court, which says that the fact is admittedly indifferent and not capable of conferring the status claimed. To allow this ground to be set up now, would therefore be to do what it was sought to do in the Sivaganga case--set up a ground of claim, which the litigant had in the previous case expressly withdrawn by his admission from the cognizance of the Court * * * * The better opinion probably is that he would be barred whether this ground of being heir was brought forward or not. The 'causa' in the first suit was 'being heir' and Paulus does not say that a new suit for the same object-matter may be brought because a new basis in fact of the same 'causa' is adduced, but where there is a different 'causa'. The present case seems to fall within his words 'mutatam actionem opinio petitoris non facit 7. M.C.R. 165.
12. In the original Code of Civil Procedure (Act VIII of 1859) the law or res judicata was contained in Sections 2 and 7, but they were far from being exhaustive. Section 2 of Act VIII of 1859 was in terms for less comprehensive than the present Code. It simply provided that no Court should take cognizance of any suit brought on a cause of action which (cause of action) had been heard and determined by a Court of competent jurisdiction in a former suit between the same parties. Notwithstanding that the operation of Section 2 was in terras restricted to 'cause of action' their Lordships of the Privy Council held in Krishna Behari Roy v. Brojeswari L.R. 2 IndAp 283 that 'the expression 'cause of action' cannot be taken in its most resticted and literal sense,' but that, however that may be, 'by the general law, wherever a material issue has been tried and determined between the same parties in a proper suit and in a competent Court, * * * it cannot be again tried in another suit between them.''
13. The subject of res judicata is dealt with in Sections 13 and 43 of the present Code, and the expression 'cause of action' has been omitted in Section 13, by substituting in its place the expression 'matter directly and substantially in issue'--an expression which will include not only the cause of action on which the suit is based [vide 50 (d) Civil Procedure Code], but also all matters which are, or ought to be, put in issue for the determination of the cause of action.
14. Section 43 which corresponds to Section 7 of the former Code is also more comprehensive than the latter and provides that a person entitled to more remedies than one in respect of the same cause of action should combine all his remedies in the first suit, unles he obtains the leave of the Court to 'reserve some of his remedies for a subsequent suit.
15. Though the subject of res judicata is dealt with more comprehensively in the new Code than in the old one, yet Sections 13 and 43 of the present Code are not exhaustive of the law of res judicata. That law has been the same under both the old and the new Codes--as definitively laid down by the Privy Council in Kameswara Prasad v. Rajkumari I.L.R. 20 C. 79--and it is substantially the same as the English law. The decisions passed while the old Code was in force are therefore not the less applicable to cases arising under the present law; nor is there any force in the argument urged by the respondent's pleader that the absence of the expression 'cause of action' in Section 13 denotes a deliberate change introduced by the Legislature, requiring every plaintiff to exhaust in one suit all the causes of action which he may have at the date of the suit in respect of the property or the relief claimed by him and of which he was then aware.
16. The question was first considered, with reference to the new Code, by a Division Bench of this Court (Innes and Muthusami Aiyar, JJ.) in Thyila Kandi Ummallia v. Thyila Kandi Cheria Kunhamed I.L.R. 4 M. 308, and it was there held dissenting from two decisions of the Calcutta High Court, Deenabundho Chowdri v. Kristomoni Dossee I.L.R. 2 C. 152, Bheeko Lall v. Bhuggoo Lall I.L.R. 3 C. 23, that there was no difference between the old Code and the new Code and that the dismissal of a former suit which was based on a lease which was not proved was no bar to a subsequent suit brought for the recovery of possession of the same lands on the ground of the plaintiff's title as owner. The same question was again considered in Alluni v. Kunjusha I.L.R. 7 M. 264 in which it was held by Muthusami Aiyar and Hutchins, JJ. that 'Explanation II to Section 13 of the Civil Procedure Code of 1877 refers to the title litigated in the former suit as distinguished from the relief claimed. Where several independent grounds of action are available, a party is not bound to unite them all in one suit though he is bound to bring before the Court all grounds of attack available to him with reference to the title which is made the ground of action.' We fully concur in this exposition of Explanation II to Section 13. In that case the former suit had been brought by the Karnavan of a tarwad to resume from a junior branch, certain lands, which, it was alleged, had been under a special agreement allotted for its maintenance. That suit having been dismissed on 'the ground that the alleged agreement was not proved, it was/held that a subsequent suit brought by the same Karnavan to obtain possession of the same property for purposes of management on behalf of the Tarwad from a junior branch which was in de jacto possession of the same was not barred by the former suit.
17. A question similar to that arising in the present case was considered in Kandunni v. Kattiamma I.L.R. 9 M. 251 and it was there held that a former suit brought by the plaintiff against the defendant on a demise of 1856, which he alleged (but did not prove was a renewal of a prior demise of 1835, was no bar to a subsequent suit brought to recover the same land on the demise of 1835 and on title See also I.L.R 15 M. p. 336.
18. We have noticed at length the above decisions of the Privy Council and of this Court, as it was strenuously contended by the learned pleader for the respondents that they should all be regarded as virtually overruled by a comparatively recent decision of the Privy Council in Kameswara Prasad's case I.L.R. 20 C. 79 and that the later decisions of this High Court in Arunachelam Chetty v. Meyyappa Chetty I.L.R. 24 M. 91 and Rangasami v. Krishna I.L.R. 22 M. 259 are in conflict with the earlier decisions above referred to ; and he also relied upon a recent decision of the Bombay High Court in Gudappa v. Thirkappa I.L.R. 25 B. 189.
19. The decision of the Privy Council in 1892 in Kameswar Prasad v. Rajkumari I.L.R. 20 C. 79 has been misapprehended and misapplied in certain cases A careful perusal however, of the judgment of the Judicial Committee in that case, clearly shows that the decision is not in conflict with the earlier rulings of the same tribunal in Rajah of Pittapur v. Surya Rao L.R. 12 IndAp 116 and Amanat Bibi v. Imdad Hussain L.R. 15 IndAp 106 already referred to, which rulings have been re-affirmed in Mahomed Raisat Ali v. Mussumat Hasin Banu I.L.R 21 C. 157 the judgment in which was given in July 1893, nearly a year later than that in Kameswar Prasad's case. The ruling in Kameswar Prasad's case is, no doubt, liable to be misunderstood if one does not bear in mind the facts of the case which are set forth in the judgment itself and which briefly are as follow: A Hindu widow in possession of her husband's estate raised a loan of Rs. 61,000, and executed, on the 1st March 1872, a bond in favour of the creditor hypothecating a portion of her husband's estate as security for the debt Shortly afterwards, on the 31st August 1872 an agreement was entered into between her and Run Bahadur, the presumptive reversionary heir of her husband whereby she surrendered to him her interest in her husband's estate on condition that he (Run Bahadur) was to pay her an allowance of Rs. 24,000 for her maintenance and also pay off her liabilities. In 1876 the creditor brought a suit upon the hypothecation bond against the widow and Run Bahadur whom he joined as defendant in the suit on the ground that 'the Rani had, under the agreement of 1872, given over to him the whole of the properties including what was mortgaged under the bonds' but in that suit no relief was claimed against Run Bahadur presonally. The final decree in that suit held the mortgage not to be binding upon the estate but held the Rani personally liable for the amount due under the bond. After the death of the Rani the creditor insituted a suit in 1887 against Run Bahadur ' to have him declared liable under the agreement of the 31st August 1872 to satisfy the decree obtained against the Rani under the bond', Upon these facts their Lordships of the Privy Council after holding that the suit was barred by the 6 years' rule of limitation further held that the principle of res judicicata was also fatal to the suit. Their Lordships adverting to Explanation II to Section 13 held that the money having become payable in September 1875, the date named in the bond, the creditor might and ought to have claimed relief personlly against Run Bahadur in the former suit and that, having omitted to do so, he was barred from maintaining the subsequent suit. It is expressly stated in the judgment that he was joined as a defendant in the former suit by reason of the agreement of 1872, and the later suit was also instituted against him in consequence of the stipulation in the same agreement which he had entered into with the Rani, undertaking to pay her debts. It will thus be seen that the claim made in the former suit to enforce the mortgage against Run Bahadur and the claim made in the later suit for the recovery of the mortgage debt personally from Run Bahadur were whether rightly or wrongly based upon one and the same transaction, viz., the agreement of the 31st August 1872 entered into between him and the widow. The two suits were, therefore, founded upon the same cause of action, and the claims made in both the suits so far as Run Bahadur was concerned arose from that cause of action. It is immaterial to consider whether it would not have been possible to have shaped the former suit against the widow and Run Bahadur (as the then presumptive reversionary heir) quite independently of, and without any reference to, the agreement of 1872. But, as a matter of fact, the suit was brought against him by reason of the transfer made to him under the agreement of 1872 and it was, therefore, held that it was clearly competent for the creditor to have alleged in that suit itself the personal liability arising under the same agreement that he ought to have done so and could no be permitted to bring a subsequent suit to enforce such liability. If, the attention of the Committee had been drawn to the latter portion of Section 43 of the Civil Procedure Code which requires (subject to the exception therein referred to the joinder, in one suit of plurality of remedies which a creditor may have in respect of the same cause of action it is not improbable that the decision might have been based on Section 43 rather than on Explanation II to Section 13 but whichever of the two may be the more appropriate provision the result would be the same. It would also seem from the judgment in this case that even if a ground of attack be relevant and pertinent to the cause of action on which the suit is brought the matter involved in such a ground will not necessarily be within the purview of Explanation II to Section 13, if it be so dissimilar to the other grounds of attack that its union with them might lead to. confusion. The next case relied on on behalf of the respondents is Arunachellam Chetti v. Meyyappa Chetti I.L.R. 21 M. 91. No doubt there are certain general observations in the judgment in that case, which lend some support to the arguments advanced by the respondent's pleader on Section 42, and the absence of the expression 'cause of action' in Section 13 ; but with all deference, we are, for the reasons already stated, unable to concur in them, and after a careful perusal of the judgment we are satisfied that the ground of decision is that the cause of action on which the former suit was based was clearly identical with that in the subsequent suit and that the respective grounds advanced in support of the two suits were only 'different means invoked for making out what is manifestly a single and indivisible infringement of the self-same right.'
20. We may here refer to the decision of the Judicial Committee in Woomatara Debia v. Unnopoorna Dasse 11 B.L.R. 158 which is noticed in the above case and on which the decision is chiefly based. That decision of the Privy Council was passed in 1872 and it gives a clue to the true meaning of Explanation II to Section 13, Civil Procedure Code, and shows that that explanation is only a compendious statement of the law as it has all along been understood, whatever difficulty there may exist in the application of it to particular cases, in determining the exact scope of the pleadings in the two suits and the question as 'to whether the two suits are, either in whole or in part, based upon the same cause of action. In that case it was held that the cause of action in both the suits was the dispossession of the plaintiff by the fixing of the boundary complained of and other proceedings under a special Act, the result of which proceeding was to affirm the possession of the defendants and to leave the plaintiff to her remedy by civil suit. In the first suit the plaintiff sought to establish her title by admitting that the land sued for was not included within the limits of her taluq or estate as originally settled and defined, but that she by gradual squatting or encroachment enlarged the boundary of the taluq. Having failed in that suit, she brought a second suit in which she sought to establish her title by contending that 'the boundary between my estate and that of the defendant was improperly drawn so as to include in the defendant's holding that which of right should have been within my originally settled taluq and as I now claim in that way that which I might have claimed in the former suit, I am not precluded from bringing this second suit.' It is therefore clear that both the suits were based upon the same cause of action, viz., the plaintiff's title as owner, the only difference between the two being that in the former she sought to establish her ownership apparently by the operation of the law of limitation and in the latter suit by alleging that it was part of her original estate. This is only an authority for the position that if one is dispossessed of land and he brings a suit to recover possession on the strength of his title, he must establish this title in that very suit by urging and proving all that would go to establish his title and cannot reserve one or more of such grounds for a future suit; and this is what is laid down in Explanation II to Section 13, Civil Procedure Code. But neither that case nor the decision of the Privy Council in Kameswar's case I.L.R. 20 C. 79, nor Explanation II to Section 13, can be relied on as lending any support to the proposition that a plaintiff who seeks to redeem a specific mortgage or to eject on a specific lease and fails in such suit, because the mortgage or the lease is not proved, is thereby precluded from seeking to redeem the same property or a portion thereof from another specific mortgage or to eject on the strength of his title the person in possession. Every transaction of lease imposes on the lessee the obligation of delivering to the landlord possession of the property at the expiration of the lease, and every transaction of mortgage imposes upon the mortgagee the obligation of re-transferring, after the expiration of the term of mortgage, the property free from all incumbrances created by him (or those claiming under him or under whom he claims) and, if necessary, delivering possession of the same to the mortgagor on discharge of the mortgage debt by payment or otherwise ; and such obligation on the part of the lessee or mortgagee (as the case may be) arises from the transaction of lease or mortgage which in respect of such obligation operates as an executory contract. The cause of action, therefore, in a suit based on a lease or mortgage arises ex contractu and is based upon a contract. Such a suit, therefore, can be no bar to a subsequent suit, based upon plaintiff's title, against the same defendant as a trespasser, and it is difficult to see on what principle a suit based on an alleged specific contract, which is found against, can bar a subsequent suit on another and a distinct contract which is established. If the transaction of mortgage on which the subsequent suit is based is really the same as the transaction on which the former suit was based, which (latter) failed because the document by which the mortgage was sought to be established was fabricated, that will, of course, be a bar to the subsequent suit though the plaintiff seeks in it to establish the mortgage by producing the genuine mortgage deed, or by proving that the mortgage was effected orally. The real test, therefore, is whether the cause of action or transaction on which the two suits are based, is the same, and not whether the transaction is sought to be established in different modes or by different means. It is clear that in the present case the alleged mortgage of 1856--which, it must be taken, was not true--on which the former suit was brought was, if it had been true, a transaction essentially and in , every way different from the mortgage of 1853 on which the present suit is brought. The mortgage of 1856 was of about 50 cawnies of land for Rs. 250 only ; the mortgage of 1853, though only of 14 out of the said 50 cawnies, was for Rs. 500, and apparently the term of the two usufructuary mortgages was different. The mere fact that the present suit is based on the jural relation of mortgagor and mortgagee between the plaintiff and the defendants--which was also the jural relation on which the former suit was based, in respect of the lands comprised in the present suit, in addition to other lands--does not show that both the suits are based upon the same cause of action or transaction. The relation of mortgagor and mortgagee is created by act of parties and if such acts are distinct, the relationship will be created by different transactions, each of which will constitute a separate cause of action--though, of course, if the same property be in truth and fact subject to different mortgages in favour of the same defendant, the plaintiff (mortgagor) cannot, from the very nature of the right of redemption, seek redemption, without redeeming all the mortgages and the defendant (mortgagee) ought, under Explanation II to Section 13. Civil Procedure Code, to insist upon all the mortgages being redeemed, if the suit is brought for the redemption of only one or some of the mortgages. See Sri Gopal v. Pirthi Singh L.R. 29 IndAp 118.
21. The next case relied upon on behalf of the respondents, is the decision of this Court in Rangasami Pillai v. Krishna Pillai I.L.R.22 M. 259. This is probably the only case which lends support to the respondent's plea of res judicata founded upon Section 43. In that case the plaintiff's former suit to redeem a kanom of Rs. 25 (dated 1859) was dismissed on the ground that he failed to establish the same. In the documents filed in that suit there were certain admissions that the defendants held as kanomdars under the plaintiff. The subsequent suit was brought for the redemption of the same property and the suit was based upon the admissions (of mortgage) contained in the documents above referred to. In second appeal it was held that the second suit was rightly dismissed as the plaintiff was barred from bringing it by Section 43, Civil Procedure Code, 'as it must be taken that he abandoned or relinquished his claim on the real cause of action when he brought it on a false one. That there was only one cause of action, viz., the right to redeem, is clear, and the plaintiff at the time of bringing his first suit was aware of the extent of the admissions made by the defendants, as they were contained in the documents put in by him (plaintiff) and he could or should have sued in the alternative instead of confining his rights to the specific mortgage which he failed to prove.'
22. The ratio decidendi of the decision seems to be that if a plaintiff sues for certain property on a false claim or cause of action, when in reality he has, in fact and law, a true claim and cause of action for the same property, of which he was aware, he must be taken in law to have abandoned or relinquished his true claim and cause of action. Section 43 in terms deals only with claims arising from one and the same cause of action and it only provides against the splitting of a cause of action and there is nothing in it to warrant the inference that all causes of action ought to be included, in the alternative or otherwise, in one and the same suit. If, as held in the above case, there is a statutory waiver of the true cause of action when a suit is brought upon a false cause of action, it can make no difference whether the cause of action is false in the sense that the facts alleged as constituting the cause of action are false, or it is false in the sense that the facts alleged and proved do not in law constitute a cause of action entitling the plaintiff to the relief sought. It does not appear from the report of the case that any of the previous decisions of this Court or of the decisions of the Privy Council, already referred to, were cited fo or considered by the Court. The decision is directly opposed to the decision of the Judicial Committee in Amanat v. Imdad I.L.R. 15 C. 800 in which notwithstanding that the two previous suits were brought for the recovery of the same property as was again sought to be recovered in the third suit and notwithstanding that the cause of action on which the second suit, at any rate, was based was found to be false, it was held that there was no bar to the subsequent suit which was based on a different cause of action, and it is also 'opposed to the later decisions of this Court in Zamorin v. Narayanan I.L.R. 22 M. 323 and Kutti v. Chendan I.L.R. 23 M. 629 and the Full Bench decision in Kaveri v. Sastri Ramiyer I.L.R. 26 M. 104 though it has not been referred to and expressly overruled in any of them. In the first two of these it was held that a previous suit based on a lease which was not proved was no bar to a subsequent suit based on title. In the Full Bench case the cause of action alleged in the former suit was that the plaintiff was entitled to the property on the death of the widow, who had not joined the husband in making the adoption. The cause of action alleged in the subsequent suit was that the plaintiff was entitled to the property in the death of the adopted son. So far as Section 43 was pleaded as a bar to the suit, the plea was overruled on the ground that the claim in the subsequent suit was one arising from a cause of action quite different from and inconsistent with, the cause of action on which the former suit was brought and it could not possibly have been included in that suit as a part of the claim arising from the cause of action on which that suit was in fact brought (see p. 108).
23. The last decision relied upon on behalf of the respondent is Guddappa v. Tirkappa I.L.R. 25 B. 189. With all respect to the learned Judges who took part in that case we are unable to follow that decision. It proceeds mainly on the footing that Explanation II to Section 13 of the present Code has introduced a radical change in the law of res judicata, and it, therefore, discards the various decisions which have been passed when the old Code was in force and attaches no weight to the several decisions passed under the new Code on the ground that Explanation II to Section 13 which is not specifically referred to therein, has been overlooked in them. So far as the decision of the Privy Council in Kameswar Prasad's I.L.R. 20 C. 79 case and the remarks of Lord Westbury in Raja Muthuvijaya v. Katama Nachiar 11 M.I.A. 73 are relied upon by the learned Judges in support of their conclusion, the decision seems to proceed on a misapprehension of the rulings of the Privy Council in the said two cases. In the Bombay case the plaintiff brought his former suit, When he was in possession of the property to obtain a declaration of his title thereto, by right of survivorship as the surviving co-parcener with one Ningappa who died leaving a widow under whom the defendant claimed. This suit was dismissed on the ground that the plaintiff and Ningappa were divided and that, therefore, the property devolved upon the widow by inheritance. The plaintiff was subsequently dispossessed and the second suit was brought to recover possession of the property on the ground that the plaintiff was entitled to the same as reversionary heir on the death of Ningappa's widow and that the alienation made by her in favour of her brother was not binding upon him. There can hardly be any doubt that, if the former suit had been brought on the alleged right of survivorship during the lifetime of the widow, it would not have operated as a bar to the subsequent suit brought after the death of the widow, Can it make any difference that the former suit was, as appears from the report of the case, also brought after the death of the widow? The cause of action which accrues to one by right of survivorship in an undivided family is quite distinct from the cause of action which would accrue to him only as reversionary heir on the death of the deceased's widow. In the former case, the right comes into existence immediately on the death of the undivided member and that in respect of property which was jointly owned by both. In the latter case his right is only as heir to the exclusive and separate property of a divided kinsman, who has died intestate, and if he died leaving a widow his reversionary right is only a contingent one which would vest only if he survived the widow. The two rights, therefore spring from totally different causes of action, and unless the rule of law were that a plaintiff is bound to unite in the same suit his causes of action in the alternative, as he might have done in the Bombay case, it is impossible to hold that Explanation II to Section 13 operates as a bar to the subsequent suit.
24. The second appeal is, therefore, allowed, and reversing the decree appealed against, the case is remanded to the Lower Appellate Court for disposal on the merits. The costs of this second appeal will be costs in the case.