Richard Garth, C.J.
1. We think that the judgment of the Court below should be confirmed; but Upon one only of the grounds, upon which the District Judge has proceeded.
2. The facts, so far as it is necessary to mention them for our present purpose, are, that in the year 1871 Brindabun Chunder, by his will, professed to dispose of not only the property belonging to himself, over which he had a disposing power, but also certain property belonging to Gonesh Chunder, who was the husband of the present plaintiff.
3. By that will, he devised the whole property belonging to himself and Gonesh Chunder in favour of his nephew, Apara Prosad; and by way of making a larger provision for -the plaintiff than she would have had from her husband's ancestral property, he goes on to say in his will: 'The little ancestral property there is, is insufficient to support my sister-in-law (meaning the plaintiff), so, if she lives with my nephew, he is to support her, or if she does not live with him, he is to provide for her maintenance, and give her Es. 8 a month for worship.'
4. Now, the ancestral property which he is speaking of there was a property which belonged to Gonesh, and which of right belonged to the plaintiff as her husband's heir.
5. Upon Brindabun's death in 1871 the plaintiff never claimed that ancestral property; but on the contrary, in the year 1873, she brought a suit to recover the provision that have been made for her by the will, as well out of the property which had belonged to Brindabun, as out of the ancestral property which properly belonged to herself; and. in that suit she got a decree for the maintenance that was intended to be provided for her by Brindabun, as well as for the Rs. 8 a month for worship.
6. From that time until the year 1880 she has never made any claim whatever to the ancestral property which she now claims. That property, with the other property devised by the will, remained in Apara's possession, until a decree was obtained against him; when, in the year 1877, that property was sold under that decree to the present defendants. It was then, and not till then, that the plaintiff brought this suit in the year 1880 to recover the ancestral property.
7. We are of opinion that, having regard to the doctrine of election, the plaintiff was not entitled to make this claim. It is clear that she must have known that this ancestral property, which was insufficient for her support, was devised to her nephew, for the very purpose of his providing her with a maintenance. In other words, she must have known that this maintenance was provided for her in lieu of her ancestral property, and knowing this, she brought a suit in 1873 to enforce her claim for maintenance against the whole of the property devised by Brindabun including this ancestral property.
8. She, therefore, clearly made her election within the meaning of Section 172 of the Succession Act, and she cannot now, after the property has been sold as belonging to Apara, revert to her former position (and especially under the very suspicious circumstances that she does bring it now) to recover the property from the defendants who have bought it bond fide under the decree against her nephew.
9. This is one of the grounds upon which the District Judge has decided against the plaintiff, and in that we entirely agree.
10. But with regard to the other ground, upon which he has based his judgment, we cannot agree with him. He seems to consider that the plaintiff is barred from maintaining this suit, upon the ground that her present claim is a part of the same cause of action for which she brought her suit in the year 1873; and that she is consequently barred by Section 43 of the Civil Procedure Code.
11. Now, speaking for myself, I am one of those who believe that, however construed, Section 43 has done, and will do, a vast amount of injustice; and I am therefore particularly careful to give it a construction no larger than it will reasonably bear.
12. That section enacts that every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.' Now, in my view of the case, the claim which the plaintiff makes in this suit is a totally different claim from that which she made in her suit in 1873. One claim is for land, the other is for maintenance, and, moreover, the two claims seem to me entirely inconsistent with each other.
13. If the plaintiff had a right to bring her suit in 1873, she had no right to bring her present suit, and vice versa. It can hardly be, therefore, that in making her present claim, she is suing for the same cause of action, which she sued for in 1873,
14. We think that the appeal should be dismissed and with costs.
15. I concur.