P.C. Mallick, J.
1. This is a suit to establish the plaintiff's title in premises No. 36, Derpa Narayan Tagore Street. The property in question is situate within the jurisdiction of this Court. The Administrator General as the administrator de bonis non to the estate of Raja Profulla Nath Tagore claims this property as included in the estate. Raja Profulla Nath Tagore died on July 2, 1938. It is common case that he left a will. The residuary legatees are his five sons. The five sons along with others were appointed executors. On their application a probate was granted by this Court to the said five sons of the Raja. Subsequently the administration of the estate was given by an order of this Court to the Administrator General.
2. It is pleaded in the plaint that the premises in suit is the secular property of the late Raja. During his lifetime Raja enjoyed the property as his own and thereafter it was being treated as such by his family. Only in two rooms the deity defendant was allowed to reside. The deity defendant has no title in the said property which constituted the secular property of the late Raja, it is pleaded that in Suit No. 258 of 1946 instituted in the Court of Subordinate Judge, Alipore, the property has been declared to be debottur belonging, to the defendant deity. This decree has thrown a cloud over the plaintiff's title. Hence the present declaratory suit has been instituted to establish the title of the late Raja and his estate in the said property. By way of consequential relief injunction has also been prayed for.
3. Apart from the deity there are a number of other defendants. They have been impleaded in their individual capacity as well as in their capacity as shebaits of the defendant deity. Of the defendants impleaded except the deity defendant and the defendant Debaprosad Tagore who is a minor, no other defendant has entered appearance for contesting the suit. Debaprosad Tagore is a minor represented by Phanilal Mallick as his guardian. So also Phanilal Mallick has been appointed guardian of the defendant deity. Two written statements have been filed by Phanilal as such guardian, one on behalf of the minor defendant, Debaprosad Tagore and another on behalf of the deity. The defence is substantially the same. It is contended that the suit premises do not constitute the secular estate of Raja Profulla Nath Tagore but belong to the deity defendant and that the title of the deity defendant has already been declared by the suit in the Alipore Court referred to before. It is contended that the present suit is barred by res judicata or principles analogous thereto by reason of the decisions in Title Suit No. 258 of 1946 heard and decided by the Fourth Subordinate Judge, Alipore and confirmed in appeal by this Court in Appeal No. 54 of 1952. If is also contended that the suit as framed is nor maintainable.
4. Two issues have been raised which I am called upon to decide at this stage by way of preliminary issues. They are:
(1) Whether the suit is barred by res judicata or principles analogous thereto by reason of the judgment in the Alipore Court?
(2) Whether the suit is maintainable?
5. In order to appreciate the point of res judicata it is necessary to state and understand the pleadings in the Alipore suit being Suit No. 258 of 1946. The plaint describes the suit to be a suit for administration for ascertainment of the debottur properties of the plaintiff deity and for framing a scheme. It is pleaded that the plaintiff deity is the family deity of the Tagores established in the suit premises and the said premises in its entirety is the debottur property belonging to the plaintiff deity. It is pleaded further that the deity had other properties fully set out in Schedule 'Kha' with an approximate income of Rs. 700 per year, la paragraph 3 it is pleaded that the defendants Nos. 1 to 5 i.e. the live sons of the late Raja Profulla Nath Tagore have wrongfully let out a portion of the premises No. 36, Darpa Narayan Tagore Street and have been misappropriating the rent realised from the tenants without crediting the same to the debottur estate. In other paragraphs of the said plaint allegations have been made against various people in respect of other debottur properties set out in 'Kha' schedule. It is pleaded in paragraph 9 of the plaint that the income of the debottur estate was not sufficient to meet the expense incurred for daily and periodical puja and festivals of the plaintiff deity. Formerly this income from the debottur properties were supplemented by personal contributions from the various shebaits. Now the contributions of the shebaits have Become irregular and it was necessary that provision should be made and a scheme framed for deriving additional income by letting out the debottur estate. This is the object of tie suit as pleaded in paragraph 10 of the plaint. The suit is valued at Rs. 1,100/- and the claim for account has been valued at Rs. 10 and court-fee has been paid on that basis. The substantial reliefs claimed are decree for account and
'for framing a scheme for ascertaining the debottur properties of the plaintiff deity and of the (condition and) income thereof i.e. for administration thereof and for proper regulated and satisfactory management and upkeep of the debottur properties (Deb Sheba and location of the deity)'.
There are consequential reliefs claimed which need not be considered. There are a number of schedules. One is Schedule 'Ka' which describes the premises No. 36, Darpa Narayan Tagore Street in which the deity is situate. The properties in 'Schedule 'Kha' are the mofussil properties alleged to belong to the deity, out of the income of which the Debsevas are to be performed. The remaining schedules set out the movable properties belonging to the deity.
6. It is important to note that some of the shebaits have been impleaded as plaintiffs and others as defendants. But all parties other than the deity plaintiff have been impleaded in their capacity as shebaits except the officers of the Raja'sestate who have been impleaded in their personal capacity. The five sons of the late Raja Profulla Nath Tagore being defendants Nos. 1 to 5 have been impleaded as defendants in their capacity as shebaits of the plaintiff deity.
7. In the written statement filed by the defendants Nos. 1 to 5 it is disputed that premises No. 36, Darpa Narayan Tagore Street is a debottur, property. It is pleaded in paragraph 7 of the written statement that 'The plaintiff deity is worshipped as a family deity' but it is disputed that the plaintiff deity has been established in premises No. 36, Darpa Narayan Tagore Street as alleged in paragraph 3 of the plaint. The casemade is that
'the plaintiff deity merely remains in the said premises. He is not a deity established on the property of the said premises. The house covered by the said premises is not the house of the deity nor is the compound thereof a temple of the deity. xxx xxx These defendants for the. convenience of residence and sheba and puja of the said deity, made the said deity reside on the property of premises No. 36, Darpa Narayan Tagore, Street i.e. in two rooms thereof and have been performing his sheba and puja.'
In paragraph 9 of the plaint it is pleaded that the plaintiff
'is bound to prove the allegation made to the effect that the property belongs to the deity. The said property is, in fact, a secular property and cannot be treated as Debottur property on account of the residence of the plaintiff deity and the other deities at the same place, x x x x x'
It is contended that the defendants No. 9, 10 and 11 who are not members of the family have been wrongly impieaded. Having regard to the frame of the suit they are neither necessary nor proper parties.
8. On April 18, 1946 the learned Subordinate Judge settled the issues, of which the following issues are material for the purpose of this suit:
'Is premises No. 36, Darpa Narayan Tagore Street Debottur property? (3) Is the suit maintainable under Section 42 of the Specific Relief Act? (7)'
The suit was finally disposed of by the judgment delivered by the learned Subordinate Judge on April 23, 1946. The learned Subordinate Judge held that the suit was maintainable in law. It was contended on behalf of the five Tagore defendants that without asking for declaration of title and without payment of court-fees on that basis the suit was not maintainable. The learned Subordinate Judge over-ruled this contention of the said Tagores on the finding that it was a suit for administration simpliciter and for such a suit court-fee payable was not the ad valorem court-fee on the value of the properties. On a consideration of the evidence, oral and documentary tendered before him, the learned Subordinate Judge came to the finding that premises No. 36, Darpa Narayan Tagore Street was Debottur property belonging to the plaintiff deity. In answer to Issue No. 7 learned Subordinate Judge reiterated that the present suit was one for administration and accounts and hence Section 42 of the Specific Relief Act will not govern the case. The suit was thereupon decreed.
9. Against the decision of the learned Subordinate Judge an appeal was taken to this Court being First Appeal No. 54 of 1952. A Division Bench of this Court consisting of R. C. Mitter, J. and Roxburgh, J. upheld this judgment of the learned Subordinate Judge and dismissed the appeal. Thereafter the Administrator-General has instituted the present suit to establish his title.
10. I would, first of all, dispose of the comparatively small point raised by Mr. Mukherji appearing for the deity. Mr. Mukherji contended that the present suit ought to be dismissed in the absence of proper consequential relief. The proper consequential relief in this suit is a relief to set aside the decree. In the absence of such a relief a suit for mere declaration must fail under Section 42 of the Specific Relief Act. In my judgment this argument cannot be sustained. The suit has been instituted on the allegation that not being a party to the Alipur suit the decision in the Alipursuit is not binding on the Administrator-General. On that basis it is not necessary to set aside thedecree. All that is needed is a declaration that the decree is not binding on him. Such a declaration is there and I do not think any consequential relief for setting aside the decree need be asked for in this suit.
11. The more substantial, however, is the point of res judicata on which the learned counsel appearing for the defendants concentrated their argument. In order that the instant suit may be held to be barred by res judicata or principles analogous thereto the following conditions must be satisfied:
(i) that the parties in the instant suit are parties or privies of the parties in the previous Alipur suit;
(ii) that the parties in the instant suit were litigating under the same title as in the previous suit;
(iii) that the issues in the instant suit were directly and substantially in issue in the Alipur suit; and
(iv) that the Alipur court was competent to entertain the instant suit.
It is not disputed that the Administrator-General was not a party to the Alipur suit. It is, however, strenuously contended that the Administrator-General is a privy to the five sons of Raja Profulla Nath Tagore who were impleaded as defendants in the Alipur suit. It is true that the five sons of the Tagore have not been impleaded as defendants in their capacity as executors of the estate of the Raja Profulla Nath Tagore. In fact, however, they were executors to whom probate was granted by this court at the date of the institution of the Alipur suit. It is, therefore contended that the estate of the late Raja was substantially represented in the Alipur court by the five executors though they have, not been named as such. Administrator General is the successor-in-office of the five executors. Therefore it is contended that the requirement as to parties in Section 11 of the Code is satisfied in the instant case. It is submitted by Mr. Banerji that subsequent assignee of the subject-matter of the litigation may no doubt be substituted or added under Order 22, Rule 10 of the Code of Civil Procedure, but that if the assignee is not impleaded as such in substitution or in addition to the assignor, nevertheless the decree would not be a nullity, but would be as much binding on the assignee as on the assignor. He has cited the decision of Raicharan Mondal v. Biswanath Mondal, decided by a Division Bench of this court and reported in 20 Cal LJ 107: (AIR 1915 Cal 103) where it is held that if there is transfer pendente lite of the subject-matter of a litigation the successor is bound by the result even if he is not brought on the record after devolution of interest under Order 22, Rule 10. This proposition may be conceded and I have no doubt that the decision would be binding or the assignee. If the five sons of the late Raja can be held to be there in the Alipur suit representing the estate of the late Raja, in that event the decision will be binding on the Administrator-General. But this argument in my judgment begs the question. The point I have got to decide is whether the estate of the late Raja was represented in the Alipur suit by his five sons, who were impleaded in their capacity as shebatis and not in their capacity as executors. Even after the point has been taken by the five Tagores in their written statement that property in suit did not belong to the plaintiff deity but belonged to the secular estate of Raja Prafulla Nath Tagore, the plaintiffs in the Alipur suit did not take the trouble of amending the plaint by impleadmg the five sons of the late Raja as delendants in their capacity as executors as well. I am unable to hold that the estate of the late Raja was at all represented in the Alipur suit. The frame of the Alipur suit is a simple suit for administration of Debottur estate and for framing a scheme. No assertion of title is made by the deity as against the estate of Raja Prafulia Nath Tagore in the plaint. The plaint proceeded on the footing that the property belonged to the deity. No attempt was ever made for amending the plaint to raise the issue of title directly and substantially. On the contrary the learned Subordinate Judge was invited to hold that the suit was a mere suit for administration and for framing a scheme, and that in such a suit it is not at all necessary either to ask for a declaration of title or to pay court-fee on that basis. Indeed in the judgment of the learned Subordinate Judge there has been reiteration of this in more places than one. Mr. Ghose, learned counsel appearing for the Administrator-General, contended that according to the rules of pleading as laid down in Order 6 and Order 7 of the Code of Civil Procedure in order to claim title to a property there must be an averment to the effect that the plaintiff claims title to the property and facts in support. In a suit where the deity claims the property to be a Debottur property, the deity must plead either that there is an Arpannama or that this property has been otherwise transferred to the deity. There is no such averment in the plaint and therefore defendants Nos. 1 to 5 were not called upon to answer to the attack on the title. Be that as it may, for the purpose of determining whether the parties impleaded in the Alipur suit were intended to represent the estate of Raja I have got to look to the framing of the suit and I am satisfied that in the suit as framed no question of title was sought to be raised directly and substantially. The necessary parties in such a suit for administration and framing a scheme are only the shebaits, and the five sons of the late Raja were impleaded defendants on that footing.
12. It is important to note that during the pendency of the suit the Administrator-General was appointed administrator in place of the five Tagores to administer the estate of the late Raja. If the title of the Raja's estate was in dispute, the Administrator-General, in my judgment, should have been brought in as a party either by way of substitution or in addition to the already existing defendants. After the appointment of the Administrator-General he alone could represent the estate. In order to bind the estate he must be made a party. No step was taken to add the Administrator-General as a party in the Alipur suit. I apprehend that the Administrator General was not impleaded because the suit was for mere administration of the debottur estate and for framing a scheme and not a suit to establish the title of the deity in the property in denial of the title of the Administrator General representing the estate of the late Raja. I am unable to hold that in the instant case the five sons of the late Raja could be treated as having been impleaded not merely in their capacity as shebaits out also as in their capacity as executors. Mr. Banerjee strongly relied on a decision of this Court in the case of Nabendra Kishore Roy v. Sm. Purnasashi Chaudhurani, decided by Sen, J. and reported in 45 Cal WN 854. The facts of the case are shortly these: The plaintiff instituted a suit for partition against three defendants in respect of certain plots of land. The defendants contended that some of these plots were debottur property. Issue was framed whether the plots were debottur or not. The Court held them to be debottur. Subsequently, the plaintiff instituted a suit for declaration of his title to the said plots found to be debottur in the previous partition suit. The subsequent suit was instituted by the shebait both in his personal capacity as well as in the capacity as shebait of the deity. Sen, J. held that it was no longer open to the plaintiff to contend that the said properties were secular property. It was contended inter alia that the issue as to title of the deity was not barred by res judicata firstly because in the previous partition suit the issue as to title was only incidental and secondly because the parties were not the tame. It was held that the question of title was not incidental but was directly and substantially at issue in the previous partition suit. The learned Judge also held that the parties though impleaded in the partition suit in their individual capacity, nevertheless in fact they contested the suit in their capacity as shebaits by setting up the title of the deity. In consequence they were litigating under the same title as in the instant suit for declaration of title. At p. 856 the learned Judge makes the following observations on which Mr. Banerjee strongly relies:
'It is true that in the partition suit Sachindra, Satyendra and Sailendra were impleaded in then personal capacity and not as shebaits whereas in the present suit they have been impleaded both in their personal capacity and in their capacity as shebaits of the deity Sree Sree Govinda Moharaj Jew, but this in my opinion does not help the plaintiff at all. In the partition suit those three persons asserted that they were the shebaits of the deity and they contested the suit for partition as shebaits on behalf of the deity. In the present suit they were likewise opposing the plaintiff's claim as shebaits of the deity; they were therefore litigating under the same title in the present suit as that under which they were litigating in the partition suit. The case therefore clearly falls within the terms of Section 11 of the Code of Civil Procedure.'
13. On the basis of the above observation Mr. Benerjee contended that if the parties were litigating under the same title, they must be held to have been parties even though they were not impleaded parties in such capacity. The case is clearly distinguishable. In the cited case the previous partition suit was held to be a title suit in which the title of the deity in certain properties was directly and substantially in issue. These three shabaits though impleaded in then personal capacity set up the title of the deity in the said properties expressly in their capacity as shebaits of the deity. On these facts, Sen, J. held that though not impleaded as such, the three defendants were also parties in their shebaiti capacities as well. Having regard to the fact that both the suits were title suits and in both the suits the parties were litigating to protect the title of the deities, they were held to have litigated under the same title and hence the shebaits though not impleaded as such in the previous partition suit must be held to have been parties in their capacity as shebaits. The instant suit is not a title suit at all and the question of title is only incidentally at issue. The sons of the late Raja have not been impleaded in their capacity as executors, not even in their personal capacity. They have been expressly impleaded in their capacity as shebait. In the written statement they do not purport to set up the title of the Raja in their capacity as executors to the estate of the Raja. It cannot therefore be said that they were litigated under the same title. When in a suit for framing a scheme some of the shebaits impleaded as defendants in their capacity as shebaits, contend that some of the properties alleged to belong to the deity, do not, in fact, belong to the deity and as such cannot come under the scheme, the disputing shebait cannot be said to be litigating the suit for framing a scheme of the debottur properties on their own title as owners thereof far less on their title as executors to the estate of the Raja. The proposition laid down by Sen, J. in the cited case therefore does not apply to the facts of the instant case. Mr. Ghosh has cited a Bench decision of this court in the case of Siva Mohan v. Bechumoyee Dassi, reported in : AIR1936Cal585 . Facts of the case are shortly these: Bechumoyee Daasi instituted a title suit claiming the whole estate of her father Kishori Mohan Kundu Chaudhuri. The claim was made on this basis that Kishori Mohan died intestate leaving his sole widow Monorama and the plaintiff as his only daughter. The suit was instituted after the death of Monorama. In the written statement it was contended that Kishory Mohan died leaving a Will whereby the properties were left to his brothers subject to payment of certain legacies and that the probate of the Will was duly obtained. Thereupon Bechumoyee the plaintiff filed an additional written statement by way of reply in which it was contended inter alia that by reason of a decision in a previous suit filed in the Hooghly Court Monorama was declared to be a co-sharer along with the brothers of Kishori Mohan and in consequence the issue sought to be raised that Monorama was not a co-sharer of her husband because of the Will which was duly proved was barred by res judicata. In the Hooghly suit all the parties in the subsequent suit were also parties and one of them stated in his written statement that he was an executor of the Will of Kishori Mohan. It was contended that in the previous suit even though the executors were impleaded in their personal capacity and not in the capacity as executor yet in as much as one of them alleged in his written statement that he was the executor he must be deemed to have been litigating in his capacity as executor. This contention was negatived. It was held that in order that the decision may operate as res judicata, the executor should have been impleaded in his capacity as executor. Their Lordships however held that in the previous suit the Court was not called upon to decide and in fact did not decide that Monorama was a co-sharer having the same right as other co-sharers. On this finding therefore there could be no question of res judicata. Nevertheless, thereare observations in the judgments delivered both by Costello, J. and Panckridge, J. to this effect that an as much as the executors were not impleaded as defendants in the Hooghly suit in their capacity as executors, the parties in the two suits were not the same.
14. in the case of Kandasami Pillai v. Munisami Mudaliar decided by Bench of the Madras High Court reported in : AIR1932Mad589 it was held:
'Section 11 requires that not only must the matter in issue be substantially the same in the two suits but that the parties shall be litigating under the same title. A person litigating in the character of a trustee is certainly not litigating under same title as when he litigates in his private and personal capacity. A verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity and in fact is adifferent person in law.'
15. In the instant case the five sons of the late Raja was impleaded not in their capacity asexecutors but in their capacity as shebaits. According to the Madras authority stated above, they cannot be said to be litigating under the same title and that they were not same persons in law. It will not do for us to forget that during the pendency of the Alipur suit administration of the estate was taken away from the hands of the five sons and given to the Administrator-general who alone was thenceforth entitled to represent the estate. There is a casual observation in the judgment of the Appeal Court in the Alipur Suit to the effect that the failure of adding the Administrator General as a party does not make the suit bad having regard to the provisions of Order 22 Rule 10 of the Code of Civil Procedure. I do not agree with Mr. Banerjee that this observation showed that the five executors though not impleaded as executors were nevertheless treated by the Court to have been litigating in their capacity as executors. I would not prevent an issue of title to be raised on the ground of res judicata on such a casual observation.
16. It is next to be considered whether the question of title was directly and substantially in issue in the previous suit. It must be conceded that the question of deities title in the property in suit was in issue in the Alipur suit. But was it directly and substantially in issue? The previous suit was not a title suit. In the suit for administration of the debottur estate the question was only incidentally raised. The decision of this Court in the case of Gopal Jew; Thakur v. Radha Binode Mondal, decided by a Bench of this Court and reported in : AIR1925Cal996 has been cited by Mr. Ghosh. In the cited case the previous suit, tike the Alipur suit in the instant case was a suit instituted by some shebaits against others for administration of the debuttor estate and for framing a scheme. The suit was dismissed inter alia on the finding that the property was not debottur. Subsequently a suit was instituted by the deity to establish its title. Two questions were involved in the subsequent suit, namely, (1) whether the properties were debottur properties and (2) whether the previous suit operated as res judicata. Both the points were held in favour of the deity. It was held that the properties were debottur and the decision in the previous suit did not operate as res judicata. The point of res judicata was decided in favour of the deity with the following observation at p. 1000:
'And lastly, we think that the question of res judicata must be decided in favour of the appellant from the fifth ground raised by him, namely, that the question of debottur was incidentally decided in the previous suit. In the first place, the decision of the question of debutter was only incidental after the decision of the third issue. In the next place, the plaint in that suit proceeded upon the assumption that the properties were debutter. The first prayer stated that the properties being debutter a scheme might be framed. It is true that in order that a scheme might be framed it was necessary to decide whether the properties were debutter when the defendant No. 10 Radha Benode denied their debutter character and a specific issue was framed on that point. But the issue could not directly arise upon the plaint as framed. It is necessary to decide that issue only in order to frame a scheme which was the relief claimed in that suit, but the decision of that issue was only incidental. We are unable, therefore, to hold that the decision in Suit No. 206 of 1915 operates as res judicata.'
With respect, I agree with the above observation. In my judgment, having regard to the framing of the Alipore suit, the issue as to title in the Alipur suit must be held to be only incidental.
17. It was last contended by Mr. Ghose that the Alipur Court was not competent to try, the instant suit. If the Alipur Court was not competent to decide the instant suit, then the previous judgment of the Alipur Court would not operate as res judicata. A suit to determine title of land situate wholly within the Original Jurisdiction of this Court can only be instituted in the High Court under Clause 12 of the Letters Patent. The jurisdiction of the Mofussil Courts is determined by Sections 16 and 17 of the Code of Civil Procedure. They provide that suits for determination of title to immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. If however the property in question is situate within the jurisdiction of different courts' the suit can be instituted in any court within the jurisdiction of which a part of the property is situate. Admittedly no part of the property in suit is situate within the jurisdiction of the Alipur Court. Hence, prima facie, the Alipur Court is not competent to try the instant suit. The Code permits a joinder of two causes of action in one suit to avoid multiplicity. When a suit is tiled for the determination of title of two different properties it is really two suits rolled into one. Such joinder of two title suits in respect of two different properties is permissible only when the cause of action in respect of both the properties is the same. Otherwise it is not competent in law to join in one suit claiming title in two properties situate within the territorial jurisdiction of two different courts. Reference may be made to the observation of the Judicial Committee in the case of Nisar Ali v. Mohamed Ali, reported in Provisions of Order 2 Rule 3 do not give a Court jurisdiction which is not given to it by Sections 16 and 17 of the Code. In the view I have taken the Alipur Court is not competent to entertain the instant suit and the plea of res judicata taken must be negatived. I direct the suit to appear in my list a fortnight hence as a part-heard suit.
18. Mr. Mukherjee has submitted that on other grounds he will contend that the suit is not maintainable. All other grounds are kept open for decision at the trial.