1. The case in which this appeal has been brought arises in this way: The present plaintiff bought, or purported to buy, certain property from a person who was a father in a Mitakshara family. The plaintiff afterwards brought a suit, based upon that purchase and the title thence arising, to recover possession of the property. His claim was resisted and his suit was dismissed, on the ground that one member of a Mitakshara family cannot, under the law as administered in this province, alianate by voluntary sale even his own shara of the family property. He has now brought this suit against the heirs of the person from whom he purchased, and in it he seeks to recover back the purchase-money. The suit has been dismissed on the ground that it is barred by Section 43 of the Code of Civil Procedure, inasmuch as it is said that under that section this claim might have been, and ought to have been, inserted as an alternative claim in the former suit. What the section says is that the plaintiff shall include in his suit the whole of the claim which he is entitled to make in respect of the cause of action, and if he omits to do this he Shall not be competent to bring another suit in respect of the portion omitted. It appears to me clear that the present claim is in respect of a totally different cause of action from that raised in the former suit. The former suit was based upon an alleged title to the land, and was a suit to recover possession of the land on the strength of that title. The present suit is based upon the fact that there was no title, and upon the fact that, for the consideration money paid by the plaintiff, he got nothing in return as it now turns out. So far, therefore, as concerns the ground upon which this suit has been dismissed, I cannot agree with the lower Court.
2. But I think that the suit must nevertheless be dismissed on another ground, viz., that it is barred by limitation. It appears to me clear that the case is governed by Article 62 of the 2nd Schedule to the Limitation Act, which deals with the case of money received by the defendant for the plaintiff's use. This was money received to the plaintiff's use by reason of the fact that the consideration for which he paid it wholly failed. And I cannot resist the conclusion that the failure of consideration was a failure from the beginning; that the money was, from the first, money paid without consideration, although no doubt the failure of consideration was not manifest at the time, and only became apparent when the former suit was brought and failed. I think that the suit is barred by limitation. I confess I come to this conclusion with regret, because I think this is a case of hardship.