Suraj Ratan Thirani and Ors vs The Azamabad Tea Co. and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 330 of 1960

Decision Date: 13 January, 1964

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.C. Shah

In this matter, the Supreme Court of India heard an appeal filed by Suraj Ratan Thirani and others against The Azamabad Tea Co. and others. The appeal was decided on 13 January 1964. The decision was delivered by a bench consisting of Justice N. Rajagopala Ayyangar, Justice Bhuvneshwar P. Sinha, and Justice J. C. Shah, with Justice Ayyangar listed as the author of the judgment.

The parties before the Court were identified as the petitioners, Suraj Ratan Thirani and other appellants, and the respondents, The Azamabad Tea Co. together with additional respondents. The judgment was recorded on the same date as the hearing, 13 January 1964, and the bench composition was reiterated in the report. The citation for the decision appears as 1965 AIR 295 and 1964 SCR (6) 192, with a related citator reference of R 1980 SC1655 (5). The statutory provisions relevant to the dispute included sections of the Code of Civil Procedure, 1908, and the Crown Grants Act, particularly concerning the scope of lease by the Government and the effect of Section 41 of the Transfer of Property Act, 1882.

The factual background disclosed that the land forming the tea estate had been granted by the Government in 1898 under a thirty‑year lease. In 1913 the leasehold was purchased by a person named Azam Ali. Upon his death in 1917, his estate comprised eight sons, nine daughters, and three widows. The official records listed his eldest son, Ismail, as the next in line to succeed. Ismail subsequently borrowed large sums of money from National Agency Co. Ltd. and, to secure the loan, he deposited the title deeds of the tea estate on the condition that he was the absolute owner. When Ismail failed to repay the loan, National Agency Co. Ltd. instituted a suit seeking to realise the debt by selling the mortgaged property. The suit was decided in favour of the mortgagee, and the property was auctioned and the sale confirmed in 1931. The purchaser at that auction was the decree‑holder, who later sold the estate to The Azamabad Tea Estate, the principal respondent in the present case.

Subsequent to that sale, the heirs of Azam Ali instituted suit No. 58 of 1931 to set aside both the decree and the sale in favour of National Agency Co. Ltd., alleging various grounds. That suit was dismissed for default. The present appeal originated from a later suit filed by the plaintiffs‑appellants, who claimed title based on the purchase by the heirs of Azam Ali. They challenged the validity of the transactions through which National Agency Co. Ltd. claimed to have acquired the entire sixteen‑annas interest in the property at the court sale resulting from the decree against Ismail. The trial court held that the purchase by National Agency Co. Ltd. was valid and encompassed the whole interest in the property, concluding that the vendors of the plaintiffs possessed no title to convey any interest. The High Court, on appeal, disagreed with that finding but dismissed the appeal on other grounds, preserving only an eighth‑share interest in the property for the plaintiffs. The appellants then obtained a certificate of fitness from the High Court and approached this Court, raising the question of whether the High Court was correct in holding that the present suit was barred by Order IX, Rule 9 on the ground that suit No. 58 of 1931 had been dismissed in default and no action had been taken to have it restored, a point raised by the respondent. The appellants also questioned whether, in any event, the claims of the respondents to a specific share of the property should have been decreed.

The Court examined the argument that, because suit number 58 of 1931 had been dismissed for default and no steps had been taken subsequently to have it reinstated, the respondent’s contention that the plaintiff’s claim to the share measured as two acres and thirteen odd gundas belonging to Ashfaq, son of Ismail, ought not to have been decreed was warranted. The Court held, first, that the suit was substantially barred by Order IX, rule 9. It observed that the essential facts upon which the plaintiffs relied to establish their title and to seek relief were identical in both the present suit and the earlier suit. The property that the plaintiffs sought to recover was the same in each proceeding, and the title of the persons from whom the plaintiffs claimed to have purchased the estate was based on the same factual circumstances. The plaintiffs’ additional allegation that they had taken possession in October 1934 did not disturb the fundamental and substantial identity of the causes of action in the two suits. The Court further explained that the prohibition created by Order IX, rule 9 did not merely impose a personal bar or estoppel against the individual plaintiff who sued on the same cause of action; rather, the rule extended to that plaintiff’s assigns and legal representatives. Consequently, the rule barred the present action as well as any claim that might be brought by those standing in the plaintiff’s place.

In the second part of its decision, the Court considered the question of the lease granted by the Government in 1928. It held that the lease, although recorded in the name of Ismail alone, was intended to benefit not only Ismail but also the other co‑sharers of the property. The Court noted that the provisions of section 3 of the Crown Grants Act did not affect the beneficial interest that the co‑sharers possessed in the lease. Moreover, section 41 of the Transfer of Property Act could not be invoked by the respondent because there was no evidence that the co‑sharers had presented Ismail as the ostensible owner of the property, as indicated in the record at pages 134‑159, column 13, line 194. The Court observed that the mere conduct of the co‑sharers in permitting Ismail to manage the common property did not, by itself, create any estoppel that would prevent the co‑sharers from asserting their own rights. Even a cursory inquiry by a mortgagee would have revealed that Ismail was not the absolute owner. Regarding the appellants’ claim that they should have been granted a decree for the share of two acres and thirteen odd gundas belonging to Ashfaq, in addition to the eight pies share that the High Court had awarded, the Court ordered that the matter be sent back to the trial Court. The trial Court was directed to determine the factual reality of the sale made by Ashfaq. The judgment referred to the authorities Gopi Ram v. Jagannath Singh, I.L.R. 9 Pat. 447; Mohammad Khalil Khan v. Muhbub Ali Mian, 75 I.A. 121; and Soorijomonee Dasee v. Suddanund, (1873) 12 Ben. L.R. 304. The judgment recorded that the appeal arose under civil appellate jurisdiction, identified as Civil Appeal No. 330 of 1960, and noted the appeal from the judgment and decree dated March 18, 1954, of the Calcutta High Court in appeal from Original, Decree No. 80 of 1947. Counsel for the appellants and respondents were listed, and the judgment was dated January 13, 1964.

The judgment was delivered by Justice Ayyangar. This appeal was filed, by virtue of a certificate of fitness issued by the Calcutta High Court, against the judgment that had substantially affirmed the decree of the Subordinate Judge of Darjeeling. The plaintiffs in the original suit are the appellants before this Court. The suit from which the appeal arises was instituted by the appellants in order to claim title to, and to recover possession of, a property known as the Azamabad Tea Estate. The estate comprised approximately 378 acres of land situated in Touzi No. 911 of the Darjeeling Collectors. The description of this property was set out in Schedule A to the plaint. In addition to the claim for the land, the plaint also sought certain movable items and other tenural interests that were listed in Schedules B and C; however, this appeal is limited to the land described in Schedule A and does not consider the other items. It was admitted that one Kazi Azam Ali was the absolute owner of the entire estate, and the proceedings that gave rise to the present appeal concerned the rights of his heirs. The plaintiffs alleged that they had acquired title to the estate through various purchases from the heirs of Kazi Azam Ali. The defendants opposing the plaintiffs were the Azamabad Tea Company, which also claimed the whole property as a transferee of the National Agency Co. Ltd., and the National Agency Co. Ltd. themselves, who had been impleaded as respondents. The National Agency Co. Ltd. asserted that it had bought the entire sixteen‑annas interest in the estate at a court sale that resulted from a decree obtained against Kazi Mohammed Ismail, the eldest son of Azam Ali. The plaintiffs challenged the validity of the transactions on which the defendants relied to support their title. The learned Subordinate Judge rejected the plaintiffs’ claim, holding that the purchase made by the National Agency Co. Ltd. was valid and conveyed the entire interest in the estate, and consequently the sellers of the plaintiffs possessed no title to pass on any interest. Accordingly, the plaintiffs’ claim to the land described in Schedule A was dismissed. The plaintiffs then appealed to the Calcutta High Court. The High Court judges upheld the plaintiffs’ title to an eight‑pies share in the property specified in Schedule A, while confirming the Subordinate Judge’s decree regarding the remainder of the estate. The judges of the High Court also granted a certificate of fitness to the plaintiffs, upon the basis of which the present appeal was filed. The series of transactions that preceded the suit spanned more than twenty years and involved facts that are long, voluminous, and complex. However, for the purpose of disposing of the appeal and addressing the points raised before this Court, it is unnecessary to set out the entire history. Accordingly, the Court will confine itself to a concise narration of the essential outlines of the case together with those facts that are necessary to understand the contentions advanced in support of the appeal.

The Government originally granted a lease covering the land that later became the Tea Estate to two individuals, one identified as Mudir and another person, for a period of thirty years commencing on 1 April 1898. Those original lessees subsequently transferred their lease‑hold interests, and after a series of successive assignments, the property was bought in 1913 by Kazi Azam Ali, who had his name entered in the land records as the proprietor. It was Azam Ali who established the tea garden on the leased land, erected the necessary factories that served as accessories to the garden, and gave the undertaking the name Azamabad Tea Estate.

Azam Ali was the father of a large number of children. He had eight daughters, and in consideration of gifts that he made to each of them, the daughters executed a registered deed in 1909 by which they renounced any right of succession to Azam Ali’s estate. Consequently, those eight daughters ceased to have any claim to the property and were no longer relevant to the subsequent proceedings. Apart from those daughters, Azam Ali also had eight sons who survived him; these sons were among his heirs at the time of his death on 8 June 1917. The eldest of the sons was Mohammed Ismail. In addition to the eight sons, Azam Ali left a daughter who was born after the 1909 relinquishment deed and three widows. Under Muslim law, the surviving sons, the three widows, and the younger daughter were all entitled to inherit the estate in the shares prescribed by that law. After Azam Ali’s death, the Government records reflected that his eldest son, Ismail, succeeded to the lease‑hold interest. When the original thirty‑year lease term expired, the lease continued to be held solely in Ismail’s name.

The Court then turned to the series of transactions through which the defendants claimed to have acquired full title to the Tea Estate. Ismail obtained large loans, some of which were from the National Agency Co. Ltd. To secure one of those loans, he deposited the title deeds of the Tea Estate with the National Agency, doing so on the basis that he was the absolute owner of the sixteen‑annas share of the mortgaged property. Ismail failed to repay the loan when it fell due, and the mortgagee consequently instituted suit to enforce the mortgage and sought an order for the sale of the property to recover the outstanding amount. The suit succeeded, and a decree was issued granting the mortgagee’s prayer. Under the final decree, the property was sold on 24 September 1931, and the sale was subsequently confirmed on 13 November 1931. The purchaser under the decree then transferred the property to the Azamabad Tea Estate, which is the principal respondent in the present proceedings. A minor dispute arose regarding whether the transfer from the National Agency Co. Ltd. to the Azamabad Tea Estate was effective. However, the Court held that this issue was irrelevant to the plaintiffs’ case because, even if the transfer had been ineffective, the plaintiffs could not displace the title that the National Agency Co. Ltd. had acquired through its court‑ordered auction purchase.

In the plaintiffs’ case, the argument was predicated on the observation that Ismail, who had registered himself as though he were the full owner of the lease‑hold interest in Touzi 911, was in reality merely one among several co‑sharers of the estate of Azam Ali, an interest that had passed to him upon Azam Ali’s death. According to the plaintiffs, the lease‑hold that constituted his property was inherited collectively by all of Azam Ali’s heirs, including Ismail, the seven other sons, the three widows, and the daughter born after 1909. The original lease granted by the Government expired in 1928, and a fresh lease was subsequently granted in the name of Ismail alone. The respondents contested the effect of this renewal, contending that the 1928 lease created a sole and individual right in Ismail, and that any interest that the other heirs might have had in the earlier lease‑hold did not extend to the property covered by the new lease. Conversely, the plaintiffs maintained that the renewal of the lease conferred upon Ismail, qua his co‑heirs, the same interest that he previously held under the 1898 lease. They argued that the renewal was intended for the benefit of each co‑heir who continued to retain an interest in Azam Ali’s estate, and that therefore, when the National Agency Co. purchased the mortgaged property by execution of the mortgage decree, only Ismail’s interest transferred to the purchaser, not the interests of his co‑sharers, who were not parties to the mortgage.

Another transaction required attention before proceeding further. After the mortgage was created by depositing title deeds in favour of the National Agency Co., Ismail conveyed his entire interest in the mortgaged property, that is, the equity of redemption, to his wife, Mst. Nazifannessa, by a deed dated 6 May 1930. Despite this deed and the transfer of the equity of redemption, Mst. Nazifannessa was not made a party to the mortgage suit instituted by the National Agency Co. The plaintiffs, asserting that they had acquired Mst. Nazifannessa’s interest, contended that because she had not been impleaded, her right to redeem the mortgage remained intact notwithstanding the mortgage decree and the subsequent sale. On that basis, they alternatively claimed the right to redeem the mortgage in favour of the National Agency Co. and to obtain possession of the property after redemption.

To complete the factual narrative, it was noted that shortly after the court‑ordered auction purchase executed under the mortgage decree, the heirs of Azam Ali instituted suit number 58 of 1931 seeking to set aside both the decree and the sale in favour of the National Agency Co. Their grounds included allegations of collusion, fraud, and the argument that Ismail, being merely a co‑sharer entitled to approximately two and a half annas share, could not lawfully mortgage more than that share; consequently the decree could not bind a larger interest, nor could the sale convey anything beyond that share. That suit did not advance to trial because the plaintiffs failed to appear on the scheduled trial date, resulting in dismissal for default. The plaintiffs further asserted that, through their purchases, they had acquired from the various co‑heirs, either directly or indirectly, the entire sixteen‑anna share in the property, assuming the vendors possessed such a right. Armed with these acquisitions, the plaintiffs filed the present suit seeking the reliefs previously indicated. The respondents raised three principal defences, the first of which was that Ismail was the sole proprietor of the tea estate at the date of the mortgage, and therefore the entire interest was subject to the mortgage.

The plaintiffs, Agency Co. Ltd., instituted a suit alleging that the mortgage decree and the subsequent sale were invalid on several grounds. They claimed that the mortgage had been procured through collusion and fraud, that the mortgagor Ismail was only a co‑sharer entitled to approximately two and a half acres and therefore could not have mortgaged more than that portion, and that the decree could not bind a larger interest than the one Ismail owned. They further argued that even if the decree transferred any title, it could convey at most the share that Ismail possessed and could not convey a greater interest in the property. This suit, however, never proceeded to trial; it was dismissed for default because the plaintiffs failed to appear on the date fixed for hearing. In addition, the record shows that the plaintiffs, through a series of purchases, had acquired from the various co‑heirs, either directly or indirectly, the entire sixteen‑acre share in the property, assuming that the vendors possessed such a right. With these acquisitions, the plaintiffs filed the present suit seeking the reliefs previously described.

The respondents raised three principal defences. The first defence asserted that at the time of the mortgage Ismail was the sole proprietor of the tea estate, and consequently the entire sixteen‑acre interest was the subject of the mortgage and passed to the purchaser at the court‑sale. This contention relied on the provisions of the Crown Grants Act, now renamed the Government Grants Act, and on the fact that the thirty‑year lease of Touza 911 had been renewed in 1928 in the name of Ismail alone. The respondents argued that the renewal created a new title in favour of Ismail, extinguishing the original lease in which the heirs of Azam Ali might have had a share, because the original lease terminated by the lapse of time.

The second line of defence maintained that even if Ismail was not the full legal owner, he was an ostensible owner of the entire interest in the property. The respondents contended that the co‑heirs were estopped from challenging the validity of the mortgage covering the whole estate, invoking section 41 of the Transfer of Property Act. They further argued that, as a result, the sale in execution transferred the entire sixteen‑acre share to the purchaser.

The third defence invoked Order IX, rule 9 of the Civil Procedure Code, contending that the present suit should be dismissed because an earlier suit, identified as Original Suit 58 of 1931, which had been brought by the co‑heirs to set aside the sale under the mortgage decree, had been allowed to be dismissed for default. The High Court rejected the first two defences, holding that the arguments regarding sole ownership and ostensible ownership could not succeed. However, the Court found that, except for an eight‑pies share representing the interest of a co‑heir that was not affected by the earlier proceedings in Suit 58 of 1931, the plaintiffs were barred by Order IX, rule 9 of the Civil Procedure Code from contesting the sale in execution. The Court’s reasoning therefore limited the plaintiffs’ ability to dispute the sale, acknowledging only the portion of the estate that remained untouched by the earlier defaulted suit.

In addressing the matters raised by counsel for the appellants, the Court found it appropriate to also consider the submissions advanced by counsel for the respondents, who sought to maintain the two defenses that the High Court had rejected. The first defense contended that, because the lease was renewed in 1928 in the name of Ismail and his name was entered as the sole lessee in the revenue records, the leasehold had become his exclusive property. Apart from the argument that Ismail appeared to be the ostensible holder of the entire sixteen‑acre share under the original 1898 lease—a point that the Court would examine later—counsel for the respondents did not dispute that the co‑heirs of Ismail were entitled to their fractional interests in the property under the original lease. The Court held that the validity of the argument concerning the renewed lease must be assessed on two grounds: first, the intention of the parties, particularly that of the grantor, regarding the nature and extent of the title that was to be conferred on or obtained by Ismail; and second, the provisions of the Crown Grants Act, which governed the grant on which the respondents relied to achieve their result. Concerning the parties’ intention, the original lease dated 1898 was scheduled to expire on 31 March 1928. On 20 July 1928, Mohammad Ismail submitted a petition to the Deputy Commissioner of Darjeeling, drawing attention to the impending expiry and respectfully requesting that a further lease of the estate be granted for an additional period of thirty years. The Deputy Commissioner responded on 10 August 1928, forwarding a draft of the renewed lease to Ismail for his approval and return, and noting in the accompanying letter that the record of rights listed the following names: 1. Kazi Mohammed Ismail, 2 as.; 2. Kazi Isahaque, 2 as.; 3. Kazi Yakub, 2 as.; 4. Kazi Samoddoha, 2 as.; 5. Kazi Nurul Huda, 2 as.; 6. Kazi Badarudduza, 2 as.; 7. Kazi Insaf Ali, 2 as.; 8. Kazi Asfaque, 2 as.; and requesting that the lease be issued in the name of the person for whose favour it should be granted. Ismail returned the draft lease with his approval but asked that the lease be issued in accordance with the name appearing in the land register. The Court could not interpret this request as indicating that Ismail, contrary to the Government’s position, intended for the leasehold interest to become his sole property to the exclusion of his co‑heirs, who held interests in the earlier lease. Subsequently, the lease was executed on 1 February 1929 in the name of Ismail, to become effective from 1 April 1928, and it was described as a renewal of the previous lease. In light of these facts, the Court concluded that the Government had intended to grant a lease that also benefitted the co‑sharers, despite the lease being executed solely in Ismail’s name.

In this case the lease deed had been executed solely in the name of Ismail. The Court considered whether Ismail had intended to obtain a benefit for himself at the expense of his co‑sharers. After examining Ismail’s reply to the Deputy Commissioner, the Court found that the reply did not disclose any such intention, and the alleged intention was never communicated to the Government. Consequently, the Court was unable to accept the submission made by Mr Sen that the parties’ intention should control the outcome. Mr Sen nevertheless argued that, irrespective of the parties’ intention, Section 3 of the Crown Grants Act prevented any dispute to Ismail’s title over the entire sixteen‑acre share in the leasehold. Section 3 states: “All provisions, restrictions, conditions and limitations contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.” The Court observed that, having held that the Government’s purpose in granting the renewal was to allow the co‑heirs to enjoy the benefits of the lease as well, those provisions of Section 3 did not affect the co‑heirs’ beneficial interest. Moreover, the lease itself contained no clause that excluded the possibility of a beneficial interest belonging to anyone other than the named lessee. Accordingly, the argument based on Section 3 was deemed without substance and was rejected. The next point raised by the respondents relied on Section 41 of the Transfer of Property Act. They contended that, because the revenue records listed the property in Ismail’s name and the co‑heirs had not corrected that entry, Ismail was deemed the ostensible owner of the whole property. On that basis, the mortgage executed by Ismail as a full owner and the subsequent sale by court auction, effected by the National Agency Co. Ltd., were said to transfer full title to the Tea Estate, thereby estopping the co‑heirs from challenging the defendant’s claim to the entire sixteen‑acre share. For Section 41 to apply, the respondents needed to prove that the co‑sharers had consented to present Ismail as the ostensible owner and that they had taken reasonable care to verify whether Ismail possessed authority to transfer the full sixteen‑acre interest. The Court found that, apart from the entry of the property in the revenue records under Ismail’s name and the delegation of management to Ismail by the co‑sharers, there was no evidence at all that the co‑sharers had put forward Ismail as the ostensible owner. The Court noted that merely allowing one co‑sharer to manage the common property does not, by itself, create an estoppel that bars the others from asserting their rights. Moreover, the learned judges had pointed out that even a minimal inquiry by the mortgagee would have revealed that Ismail was not the sole owner, and this lack of inquiry was not seriously contested before the Court. In view of these findings, the Court concluded that it was unnecessary to pursue the argument based on Section 41 further.

The Court examined the argument presented by counsel that section 41 of the Transfer of Property Act did not apply to sales conducted through court auctions, because the court was only authorised to sell the right, title and interest of the judgment debtor and nothing beyond that. After considering this submission, the Court concluded that the High Court had correctly held that section 41 provided no defence to the respondents in the present matter. Consequently, the only remaining issue for the Court’s consideration was whether the appellants’ suit was barred by the provisions of Order IX, rule 9 of the Civil Procedure Code. The relevant portion of that rule read: “Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.” The High Court had interpreted this rule as extinguishing the plaintiffs’ claim in the present suit, except for the fraction of an eighth share in the estate that belonged to Azifunnessa and Najifennessa, two daughters of Azam Ali who, upon the death of their mother, became entitled to that share. Because these two daughters were not parties to suit No. 58 of 1931, the High Court held that the portion of the estate they owned, which had been purchased by the plaintiffs, was not affected by the earlier dismissal. The decision of the High Court concerning this eighth‑share was deemed final and therefore no longer contested. The Court therefore needed to determine only whether the plaintiffs‑appellants could claim any right or interest in the estate beyond the aforementioned share.

Suit No. 58 of 1931 had been instituted by seven plaintiffs: Ashfaq, Shamsuzzoha, Nurul Huda, Mohammad Yakub – the four being sons of Azam Ali – together with two of his daughters, Mahbuba Khatun and Habiba Khatun, and one of his widows, Bibi Marium. The suit named two defendants. The first defendant was the National Agency Company Limited, which had purchased the property in a court‑sale conducted under a mortgage decree; the title of this purchase was challenged and reliefs were claimed against it. The second defendant was Mohammad Ismail, who was served as a pro forma defendant. After the institution of the suit, the first plaintiff, Ashfaq, died; consequently, his legal representatives were entered on the record as parties in his place. The plaint alleged that the second defendant, Mohammad Ismail, was not the sole proprietor or owner of the Azamabad Tea Estate. Accordingly, the mortgage in favour of the first defendant, the mortgage decree obtained by that defendant, and the subsequent sale under that decree were asserted to be valid only to the extent of the two‑and‑a‑half‑acre share that belonged to Mohammad Ismail. The plaintiffs prayed for a decree that would declare (1) that Mohammad Ismail possessed only a two‑and‑a‑half‑acre share in the property and that the remaining one hundred thirty‑two‑and‑a‑half acres belonged to the plaintiffs, and (2) that only the two‑and‑a‑half‑acre share had been sold under the mortgage decree and had been purchased by the National Agency Company Limited at the court sale.

In this case, the suit concerning the court sale was instituted on 28 November 1931. After the issues were settled, the matter was scheduled for trial on 22 August 1932. On that date, the plaintiffs failed to appear, no witnesses were presented on their behalf, and their counsel reported that no instructions had been received. Consequently, the Court directed that the suit be dismissed and ordered costs in favour of the National Agency Co. Ltd., which was the only party present in Court. It is noted that Mohd Ismail never appeared during the hearing of the suit. The Court then turned to the points raised by counsel for the petitioner concerning the construction of Order IX rule 9 of the Code of Civil Procedure. First, counsel alleged that Suit No 58 of 1931 had been filed fraudulently and collusively, and that the dismissal resulted from a collusive settlement intended to defeat the plaintiffs’ rights. The Court found that no factual basis supported this allegation. The counsel could not point to any concrete proof and only referred to suspicious circumstances. The Court held that a decision cannot be based on mere suspicion, and therefore the submission did not merit serious consideration. The next submission asserted that the 212‑acre share belonging to Ismail did not pass under the sale in execution of the mortgage decree because Ismail had been adjudicated an insolvent in Insolvency Case 38 of 1931 by the District Judge of Purnia. It was claimed that, as a result, the properties subject to the court‑sale had vested in the official receiver before the relevant date. Although the plaint made this allegation and the plaintiffs denied it, the Court observed that there was no finding in the judgments of the lower courts, nor any evidence on record, to demonstrate that the necessary facts had been proved or that the issue had been raised with any seriousness at any stage of the proceedings prior to the present Court. In the absence of factual material beyond bare allegations and denials, the Court concluded that the plea lacked merit and warranted no further consideration. The final contention concerned two of the plaintiffs in Suit No 58 of 1931, namely Nurul Huda and Habiba Khatun, who were described in the cause title as minors represented by their natural guardians as next friends. Counsel argued that both individuals were actually adults and that adults could not be represented in law by persons claiming to act as guardians; therefore they could not be deemed parties to the suit and their interests could not be affected by the dismissal. The Court noted that, beyond the initial pleading, the plaintiffs offered no substantive grievance on this point, and the allegation was denied.

The Court noted that the lower courts had failed to prove the ages of the two plaintiffs at the date the plaint was filed, and therefore it could not entertain the plea concerning that issue at this stage. Counsel for the petitioners then submitted that Ashfaq, who was named as the first plaintiff in suit number 58 of 1931, had transferred on April 18, 1931 his two‑and‑a‑half gandas and odd share in Touzi number 911 to a person named Pir Baksh. The petitioners later acquired that share from Pir Baksh by a deed dated September 2, 1943, which conveyed whatever portion Pir Baksh had purchased from Ashfaq. On this basis, the counsel urged that, having already found in favour of the petitioners on the merits of the title concerning the first two defences, the Court should also grant a decree for Ashfaq’s share in addition to the eight‑pies share that the High Court had previously decreed. The counsel further argued that, if the transaction were proved to be genuine, the share would be treated in the same manner as the eight‑pies share for which a decree had already been issued by the judgment now under appeal. The Court indicated that it would consider this request after addressing the principal submission concerning the construction of Order IX Rule 9 of the Civil Procedure Code, a construction that, if accepted, would remove the statutory bar entirely.

The primary submission concerning Order IX Rule 9 was that the rule, which barred a “plaintiff” from instituting a fresh suit, created only a personal bar against the original plaintiff and did not extend to the plaintiff’s representatives or those claiming under the plaintiff, as contemplated in sections 11 and 47 of the Code. To support this view, counsel cited the observations of Justice Das in Gopi Ram v. Jagannath Singh, where the argument was described as a weighty one and examined in detail. Although the learned judge resolved the case on a different basis, he referred to several earlier decisions that appeared to favor the counsel’s position and expressed hesitation in rejecting that construction. The Court, however, was not persuaded by the contention that the prohibition in Order IX Rule 9 imposed merely a personal estoppel on the specific plaintiff and left the matter open for successors. The Court found that, apart from the absence of words expressly mentioning “those claiming under the plaintiff,” there was no principle or logic to sustain the argument, and consequently it rejected the submission.

It is difficult to understand how a person who was barred by law from instituting a suit for the recovery of property could transfer any right in that property to another person and thereby enable the transferee to assert a right that the transferor himself was prohibited from asserting. While it is acknowledged that, in certain well‑defined circumstances, a transferor may pass on more rights than he actually possessed, those exceptions are clearly delineated and they do not encompass the present situation. The same argument was presented before the High Court, where the learned judges described it as startling; the present Court concurs with that description. If the rule were to have any effect, the prohibition it imposes would become meaningless if a plaintiff whose suit had been dismissed for default could simply convey the disputed property to a third party, and that third party were then allowed to press rights that the original plaintiff was legally unable to press. The suggestion that an heir of the plaintiff stands in a better position than the plaintiff himself, or that the bar ceases to operate upon the plaintiff’s death, fails to find any justification in established principle or reasoning. In this Court’s view, the term “plaintiff” in the rule must be interpreted to include the plaintiff’s assignees and legal representatives, so that the bar can operate effectively. The next contention raised was that Order IX, Rule 9 barred a second suit only with respect to “the same cause of action,” and that the cause of action in the earlier Suit 58 of 1931 differed from that in the present Title Suit 18 of 1943, thereby avoiding the operation of the bar. To address that contention, it became necessary to examine the cause of action pleaded in the present suit and compare it with the cause of action in Suit 58 of 1931. A careful analysis of the material allegations disclosed that the reliefs claimed in the present suit were founded on several factual propositions. Firstly, the plaintiffs asserted that the Tea Estate originally belonged to Azam Ali, whose estate, upon his death, passed to his eight sons, his widows, and a daughter. Secondly, they contended that the registration of the estate in the name of Md. Ismail reflected his status as a co‑sharer, with the beneficial ownership remaining with all the heirs collectively. This ownership structure was not altered by the termination of the first lease and its subsequent renewal in 1928 for an additional thirty‑year period. Thirdly, the plaintiffs described that all co‑heirs lived together as a joint family, sharing a common mess, which precluded any claim of adverse possession against Md. Ismail, whose possession was not exclusive or as a sole proprietor. Fourthly, the plaintiffs alleged that the suit concerning the mortgage was fraudulent and collusive, asserting that Ismail had conspired with the mortgagee to defraud his co‑heirs. Evidence of this fraud and collusion was presented in the pleadings. Fifthly, the plaintiffs claimed that the sale following the decree, which had been passed ex parte, was also fraudulent. Finally, they argued that at the date of the auction, Ismail possessed no title, even to the two‑and‑a‑half‑acre share, because he had previously been adjudicated an insolvent. All these allegations formed the basis of the cause of action in the present suit, and they were contrasted with the allegations in the earlier suit to determine whether the same cause of action was being pursued.

The plaintiff explained that, because of the earlier adjudication of the defendant as an insolvent, the defendant could claim only a two‑and‑one‑half‑acre share. The plaintiff then described in detail how it had acquired the eight‑acre share belonging to the daughters, followed by an explanation of the purchase, made through Pir Baksh, of the share that had belonged to Ashfaq. Further, the plaintiff set out the other transactions by which it asserted that it had obtained the full sixteen‑acre share in the Tea Estate. After laying out these acquisitions, the pleading referred to Suit 58 of 1931 and outlined the nature of that earlier litigation and the effect it purported to have. The plaintiff concluded its statement by asserting that it had taken possession of the tea gardens on 10 October 1934. It further claimed that, on the following day, the defendants applied to the Magistrate for an order under section 144 of the Criminal Procedure Code. The Magistrate, according to the plaintiff, issued an order restraining the plaintiff from interfering with the defendants’ possession. The plaintiff said that this restraint compelled it to institute the present suit seeking the reliefs previously described.

It was noted that the material allegations presented in Suit 58 of 1931 had already been summarised. The only substantive difference between the cause of action in that earlier suit and the cause of action in the present suit lay in the additional allegations concerning possession and dispossession that arose in October 1934. The present suit was premised on the plaintiffs’ title derived from their purchases. The plaintiffs conceded that, had the court sale correctly conveyed the entire sixteen‑acre interest in the tea garden to the National Agency Co. Ltd., the original vendors would have had nothing to convey. Consequently, the plaintiffs advanced allegations to protect their title. To succeed, the plaintiffs needed to demonstrate that the defendant, Ismail, lacked title to the full sixteen‑acre share, that the mortgage executed by Ismail was therefore ineffective, that the decree obtained on the basis of that mortgage was invalid, and that the subsequent court sale executed pursuant to that decree could, at most, affect only the two‑and‑one‑half‑acre share attributable to Ismail. These allegations, which formed the foundation of the plaintiffs’ case, were identical to those raised in Suit 58 of 1931.

Considering these circumstances, the proposition submitted by counsel was summarised as follows. A cause of action consists of a set of facts upon which relief is sought. When, in addition to the facts alleged in the first suit, new facts are alleged and additional relief is claimed—here, the new facts being the allegations of possession and dispossession in October 1934—the legal effect is that the entire complexion of the suit changes. Accordingly, the requirement of Order IX Rule 9, which demands that a subsequent suit arise “in respect of the same cause of action,” is not satisfied. The plaintiff, therefore, is entitled to re‑litigate the entire cause of action in the second suit. In support of this submission, counsel referred the Court to certain observations in earlier authorities.

The Court observed that it was unnecessary to refer to the decisions cited by the parties because the argument presented lacked any substantive merit. It affirmed that the test adopted by the Judicial Committee for determining whether the cause of action in two similar suits is identical, as articulated in Mohammed Khalil Khan and Ors. v. Mahbub Ali Mian and Ors., is sound and correctly expresses the proper interpretation of the relevant provision. In that earlier case, Sir Madhavan Nair, after a detailed discussion of the expression “same cause of action” that appears in paragraph (1) of Order 11, Rule 2 of the Civil Procedure Code, stated that the appropriate test to apply is whether the causes of action in the two suits are, in substance—not merely in form—identical. The learned Judge then referred to an earlier Privy Council decision in Soorijamonee Dasee v. Suddanund, quoting the passage that the term “cause of action” should be construed with reference to its substance rather than its form. This principle, together with the earlier citation of 75 1 A. 121, formed the foundation for the Court’s analysis of the present matter.

Applying the substance‑over‑form test, the Court found that the essential bundle of facts upon which the plaintiffs relied to establish their title and to seek relief was the same in both suits. The property that the plaintiffs sought to recover was identical in the two proceedings. Moreover, the plaintiffs’ claim to title by purchase was grounded on the same factual background in each case: namely, the status of Md Ismail with respect to his co‑heirs, the fact that the beneficial interests of those co‑heirs were not affected or involved in the mortgages, the mortgage decree, and the subsequent sale in execution of that decree. Although the plaintiff in the later suit emphasized his purchase as the source of his title, the Court held that if Order IX, Rule 9 barred the plaintiff in the first suit, the same bar extended to those claiming under him in the subsequent suit, rendering the allegations about the transmission of title in the present case immaterial. The only additional allegation introduced in the later suit concerned the plaintiffs’ acquisition of possession by purchase and their subsequent dispossession. The Court concluded that this new claim did not destroy the identity of the cause of action, because the plaintiffs could not obtain any relief based solely on possession and dispossession without first establishing the lack of full title in Md Ismail, a fact that was admitted as essential to their case.

The Court examined whether the additional allegations concerning possession in October 1934 had destroyed the essential and substantial identity of the causes of action in the two earlier suits. It concluded that the identity of the causes of action remained intact, and therefore the High Court was correct in holding that the suit was substantially barred by Order IX, rule 9. The next issue for consideration was the plaintiffs’ claim to the share of Ashfaq, described as two annas and thirteen odd gundas. In paragraph 52 of the plaint the plaintiffs asserted that a registered sale‑deed dated 18 April 1931 recorded Ashfaq, the son of Azam Ali, selling his entire interest in the Azamabad Tea Estate to Pir Baksh in accordance with a Bainama dated 7 April 1930, and that Ashfaq subsequently placed Pir Baksh in possession of the estate. The plaintiffs further alleged that they acquired this share through a Kabala dated 2 September 1943. In the joint written statement filed on behalf of defendants 1 and 2 these statements were denied. The defendants contended that the sale‑deed in favour of Pir Baksh had never been executed, and even if it had been, it was a sham and merely nominal, rendering it ineffective to pass title. Although no specific issue concerning the sale to Pir Baksh was raised, a general issue identified as Issue No. 8 related to the plaintiffs’ acquisition of title to the Tea Estate. The sale‑deed executed by Ashfaq was entered into the record as Exhibit 12(i), while the purported sale from Pir Baksh to the plaintiffs was recorded as Exhibit 12(c). The impact of the sale to Pir Baksh on the plaintiffs’ entitlement to relief does not appear to have been addressed before the learned trial Judge. It is pertinent to note that the trial Judge held that Md Ismail was the full owner of the property under the lease granted in 1928, relying on the provisions of the Crown Grants Act; alternatively, the Judge found that Ismail’s co‑heirs had consented to present him as the ostensible owner, thereby estopping them from challenging the mortgage and the subsequent sale effected in execution of the mortgage decree. Consequently, it is possible that, because of the trial Judge’s view on Md Ismail’s title, the plaintiffs did not vigorously assert their rights based on their purchase from Pir Baksh, since, if the Judge’s reasoning were correct, the sale by Ashfaq to Pir Baksh—even if genuine—would not have enabled the plaintiffs to obtain any relief. In this context, it may be observed that the plaintiffs’ claim to the eight‑pie share, which the High Court had allowed in their favour, was not pressed before the trial court. Moreover, even in the High Court, the question arising from the sale by Ashfaq to Pir Baksh does

In this appeal the Court first indicated that it would later consider the arguments presented by counsel for the petitioner concerning the substance of the claim to the share that formerly belonged to Ashfaq. Before doing so, the Court turned to a point raised by the petitioner’s counsel that had required a lengthy adjournment after the principal arguments were heard. The counsel observed that the plaintiffs had not, in any of the lower courts, pressed or asserted any special right that might have arisen from their alleged purchase of Ashfaq’s share through Pir Baksh. He suggested that this silence could possibly be explained by the fact that the property described in the sale deed identified as Exhibit 12(i) might not have included Touza No 911, which is the Azamabad Tea Estate. This line of reasoning was viable because the record reproduced for the Court’s use omitted the schedule annexed to Exhibit 12(i); only the parties and the operative words of conveyance were printed. Consequently, the petitioner’s counsel could not determine from the printed record whether Ashfaq’s interest in the suit property had been conveyed by that deed. The situation was further complicated by the fact that the schedule attached to the 1943 sale deed executed by Pir Baksh was also neither translated nor printed in the appeal record. Nevertheless, the plaint contained a categorical statement identifying the property conveyed under Exhibit 12(i) as Ashfaq’s share in the Azamabad Tea Estate. In view of that clear allegation, the Court held that the petitioner’s submission could not be dismissed as frivolous. Accordingly, the Court acceded to the request of the petitioner’s counsel and ordered the original Exhibit 12(i) to be obtained from the High Court so that the parties could make submissions on the identity of the conveyed property. The original document was secured, translated for the Court’s use, and when the appeal was re‑heard the petitioner’s counsel conceded that the property conveyed by Exhibit 12(i) was Ashfaq’s two and thirteen‑gundas odd interest in Touza No 911.

Turning to the merits of the plaintiff’s claim, it was uncontested that if Ashfaq’s sale to Pir Baksh were genuine and intended to transfer title, the plaintiffs would be entitled to a decree declaring that, in addition to the eight‑pies share already granted to them by the High Court, they should also receive the further two and thirteen‑gundas share of Ashfaq in the Schedule property described in the plaint. The petitioner’s counsel, however, urged the Court not to entertain or give effect to this claim because several circumstances cast serious doubt on the reality of the transaction, and because any such claim could not be accepted without a careful examination of the facts. The Court observed that, given the definite case set out in the pleadings, it would not be appropriate to reject the claim merely because it had not been pressed in the lower courts. Moreover, the Court could not overlook the fact that the sale deeds referred to as Exhibit 12(i) had been filed in the trial court and that Pir Baksh had been examined as the thirty‑first witness for the plaintiff to formally prove those deeds. The trial judge had not made any finding that the sale by Ashfaq was merely nominal. In light of these considerations, the Court decided not to reject the plaintiffs’ claim on the basis that it had not been raised below, while noting that the existence of the sale deeds could not be ignored.

The trial court had received the sale deeds identified as Exhibit 12(i) and Exhibit 12(c), which formed the basis of the plaintiffs’ claim, and it called Pir Baksh to testify as the thirty‑first witness for the plaintiffs in order to authenticate these documents. Although the trial judge had recorded findings that certain other transfers were nominal, no such finding was made concerning the sale executed by Ashfaq. Because of this, the Court decided not to reject the plaintiffs’ claim merely on the ground that no finding of nominality had been recorded. Nevertheless, the Court noted several circumstances that raised doubts about the authenticity of the transaction, matters which counsel for the respondents had highlighted and which led the Court to refrain from issuing a decree for the additional share sought by the plaintiffs. The first circumstance was that Ashfaq had executed the sale deed of Exhibit 12(i) on 18 April 1931 but subsequently appeared as the first plaintiff in Suit 58 of 1931, filed on 28 November 1931, without mentioning the sale, a conduct inconsistent with a genuine intention to transfer title. The second circumstance was that, although the plaint contained the necessary averments that the plaintiffs would acquire Ashfaq’s share through Pir Baksh, the claim for that share had not been pressed before the trial court. The third circumstance was that, when the plaintiffs appealed to the High Court after the suit was dismissed in its entirety, they raised no specific ground concerning their entitlement to this share, nor did they present any argument on the point before the High Court. The fourth circumstance was that there had been no mutation of the sale in the revenue records at the time the transaction was purported to have occurred, and Pir Baksh, who was examined as a witness, admitted this fact. While the Court recognized that these circumstances could be explained, they collectively indicated that the plaintiffs’ claim could not be accepted outright and a decree could not be granted in their favour without further inquiry. Accordingly, the Court ordered that the matter be remitted to the trial court to record a finding on the reality of the sale based on the evidence already on record, and to pass an appropriate decree. If the trial court were to find the sale under Exhibit 12(i) to be genuine, the plaintiffs would be entitled, in addition to the eight‑pie share already decreed by the High Court, to a further two‑and‑a‑half‑gondas odd share belonging to Ashfaq that they obtained through Pir Baksh under Exhibit 12(c). Conversely, if the sale were not held to be genuine, the plaintiffs would be limited to the share awarded by the High Court. With these modifications, the appeal was dismissed with costs, and the decree of the High Court was affirmed.