1. The suit out of which this appeal arises was one for property belonging to the deceased Narasamma whose stridhanam heir the plaintiff is. The question is whether he is barred from bringing the present suit on account of his omission in a prior suit to ask for the same relief. It is not denied that he Could have asked for this relief in the prior suit; but the question is whether he was bound to do so.
2. The prior suit, O.S. No. 1368 of 1927, was for certain property, moveable and immovable, which had been in the possession of Narasamma before her death the immovable property having been purchased with funds she derived from gifts and maintenance paid to her by her father-in-law. The plaintiff relied in the first instance on a contract which Narasamma had entered into with her father-in-law at the time she received these gifts that she would return to the family whatever moveables she died possessed of. The plaintiff claimed that the agreement would also apply to the immovable property purchased with the moveable property she had in her possession. Before the plaintiff brought the suit, the present defendant 1 put forward a will as being that of Narasamma, under which she purported to dispose of the property in her possession; but the property which is the subject of this suit was not the subject of the will. In the prior suit, the plaintiff asked for a declaration that the will was not a true one and was not binding on him. The Court found that the will was not genuine. It held that the contract was true; but that it was not necessary to construe its provisions, because the plaintiff was the stridhanam heir of Narasamma and was entitled to the property on her death if it had been undisposed of by will, whether under the contract he was entitled to the property or not.
3. There can be no doubt that in both these cases the chief constituent of the cause of action is the wrongful detention by defendant 1 of property which belonged to the plaintiff as soon as Narasamma died. The argument of the appellant is, however, that although that is the sole cause of action in this case, yet in the prior case, another part of the cause of action was the putting forward by the defendants of a fictitious will; and that as the cause of action - in the words used in Murti v. Bholaram (1994) 16 All. 165 is defined as consisting of 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court,' the cause of action in the prior case consisted of two facts, one relating to the will and one relating to the unlawful detention after Narasamma's death. In the present case, it is argued that there is only one action of which the plaintiff complains: and that is the unlawful detention of the property by defendant 1 after Narasamma's death. The learned advocate for the appellant has quoted Pittapur Rajah v. Suryarao (1982) 8 Mad. 520, a decision of the Privy Council, in which the plaintiff obtained title to some moveable and immovable property by a will. He became dispossessed of the immovable property by a wrongful act of the defendant and so brought the suit. The question was whether a subsequent suit for personal property was barred under Section 7; and their Lordships decided that it was not, because the cause of action with regard to the immovable property was entirely different, viz., the wrongful dispossession by the defendant. The plaintiff framed the present suit more or less on the lines of Pittapur Rajah v. Suryarao Mad. 520 (P.C.), by asserting that he had been dispossessed; but as that point has been found against him, he does not now contend that he was dispossessed. The case which most closely resembles the present case is Mohamed Umar v. Umtul Rahim Bibi : AIR1923All311 , where the plaintiff alleged in the earlier suit that the transaction under which property appeared to have been conveyed by the person through whom the plaintiff was claiming, was fictitious. The learned Judges say,
So far as his claim to be heir of Ahmed Ali Khan is concerned, this portion of the cause of action is common to the previous suit and to the present suits. It is clear, however, that this allegation alone would not entitle the plaintiff to succeed in the previous suit. He was met by the plain fact that at the time of Ahmed Ali Khan's death the property did not stand in Ahmed Ali Khan's name. Ahmed Ali Khan had parted with it in his lifetime by a registered sale deed.
Thus far, that case may be said to resemble very closely the present case, in that it was alleged that Narasamma had purported to dispose of her property by a will. The learned Judges, however, went on to say,
Unless that sale deed was set aside, it stood in the way of the plaintiff's claim and the plaintiff could claim no relief.
With due respect, this does not seem to be quite correct; because if the transaction was fictitious there was no necessity to set it aside. That statement is however not very material, because the learned Judges then quoted the definition of 'cause of action' in Murti v. Bholaram (1994) 16 All. 165 above referred to, in which it was said that every fact which it was necessary for the plaintiff to prove would form part of the cause of action, and said that it was necessary for him to prove that the transaction was fictitious; otherwise, the plain fact of an apparent alienation would stand in his way, the property not even standing in the name of Ahmed Ali Khan at the time of his death. I do not feel that the same can be said of a will. The plaintiff had not to prove that the will was fictitious. All that he had to prove was that Narasamma died leaving certain property. If the defendants relied on a will, it was their duty to prove that it was a valid will, disposing of her property and so leaving nothing for the plaintiff. As was pointed out in Darbarilal v. Gobind Saran : AIR1924All902 although the matter is not discussed in any great length there 'it is immaterial for him (plaintiff) whether the defendant wants to justify his right to continue in possession on different grounds (in the two suits).' In one suit, the defendant may hold up a fictitious will to oppose the plaintiff's claim and in another case he may put forward some other plea, such as adverse possession; but the real cause of action in both cases here is the unlawful withholding of Narasamma's property after her death by defendant 1, who was not entitled to it. The fact that the reference to the will is first mentioned in the plaint and not in the written statement can make no difference; or it would be always possible for the plaintiff to avoid the bar of O.2, Rule 2 by anticipating the objections of the defendant and referring to them in his plaint.
4. As the decision of the lower Court is right, this appeal is dismissed with costs.