judgement:
minal Appeal No. 134 of 1963.
Appeal by special leave from the judgment and order dated March 5, 1963, of the Calcutta High Court in Criminal Appeal No. 156 of 1963.
D. N. Mukherjee, for the appellants.
P. K. Chakravarti and P. K. Bose, for the respondent.
173 January 7, 1964.
The Judgment of the Court was delivered by HIDAYATULLAH J.
The six appellants who have appealed to this Court by special leave were convicted by the Assistant Sessions Judge, Birbhum under section 304 Part II read with section 34 of the Indian Penal Code and sentenced to six years ' rigorous imprisonment each.
Their appeal to the High Court was summarily dismissed.
When the appellants applied for a certificate in the High Court they made it plain that the only point which was required to be considered by this Court was whether section 34 could be read in conjunction with Part 11 of section 304, Indian Penal Code.
In this Court the argument was confined to this point of law.
The High Court rejected the application for the certificate pointing out that the controversy had been settled by a Full Bench decision of the High Court reported in Ibra Akanda vs Emperor(1).
The learned Judges were of the opinion that the point was not of sufficient importance for permitting the appellants to take an appeal to this Court.
For the consideration of the point of law which has been debated before us, we may state only such facts as will bring out the controversy.
One Abdul Sheikh in the company of his son, Adut, aged 13, went to his field in village Noapara to uproot linseed plants.
This was on the morning of March 13, 1962.
While he was, so employed, two of the appellants, Afrahim and Jesed, appeared on the scene, and Afrahim asked Jesed to catch hold of Abdul Sheikh.
Abdul Sheikh took to his heels and was chased by these two appel lants, who overtook him and threw him down on the ground Immediately thereafter, there appeared on the scene the re maining appellants.
Jarahim was armed with a ballam and he started to hit Abdul Sheikh on his legs with the ballam.
The appellant, Manu, arrived with a sabal (crowbar), and began to strike Abdul Sheikh and the appellant, Mesher.
began to strike Abdul Sheikh with a lathi.
All this, while, the sixth appellant, Makid, held Abdul Sheikh by the legs and Afrahim and Jesed held him down by his head and shoulders.
The incident was witnessed by Adut and two, others, and it is on the testimony of Adut and these two (1) I.L.R.(1944) 174 other witnesses, to whom reference is unnecessary, that the learned Assistant Sessions Judge, Birbhum, came to the con clusion that the offence was committed in the manner described above.
Abdul Sheikh was seriously injured; both his legs below the knee were fractured and one arm above the wrist was also fractured.
He had also some incised wounds and some bruises.
He was examined by one Dr. Bashiruddin, who gave him first aid.
Dr. Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all the six appellants.
Later, Abdul Sheikh was removed to Nalhati Health Centre, and while arrangements were being made for recording his dying declaration, he succumbed to his injuries.
He had, however, made dying declarations to some of the prosecution witnesses and they have deposed to the fact that he had named the six appellants as his assailants.
In this appeal, we did not allow Dr. D. N. Mukherjee, counsel for the appellants, to argue on facts.
We assumed that the incident took place as narrated by the witnesses.
Mr. Mukherjee contends that the conviction of the appellants under section 304, Part 11 is illegal, because according to him, section 34 cannot be called in aid, as the second part of section 304 concerns itself with knowledge and absolutely excludes intention as the ingredient of the offence.
He relies upon the minority decision of Das J. (as he then was) in Ibra A kanda vs Emperor(1).
In that case, the learned Judge had expressed the opinion that section 34 was incapable of being read with the second Part of section 304.
With the view of the learn ed Judge, Lodge J. differed and the case was then placed before Khundkar J. who agreed with Lodge J., and the deci sion was that section 34 could be so read.
At the hearing Mr. Mukherjee drew our attention to three other cases in which a view supporting his contention appears to have been taken.
The first is a single Judge decision of the Allahabad High Court reported in Ramnath vs Emperor(2), and the other is a Division Bench case from Peshawar reported in Sahibzada vs The Crown(3).
He also referred to an earlier Calcutta case reported in Debi Charan Haldar vs Emperor(1), in which a division Bench had expressed some (1) 1.
L. R. (3) A.I.R. 1950 Peshawar 24.
(2) A.I.R. 1943 All. 271.
(4) 175 doubts about the applicability of section 34 to section 304, Part 1.
As against this, Mr. Chakravarti, counsel for the State relied upon a Full Bench decision of the Allahabad High Court reported in Saidu Khan vs State(1) where it has been clearly held that section 34 can be so read.
Before dealing with the point of law, we shall refer to the essential facts once again.
Apart from the fact that there is proof that there were two parties and there was enmity between the appellants and Abdul Sheikh, the facts proved in the case clearly establish that Abdul Sheikh had gone for a peaceful purpose in the company of his young son, and immediately after his arrival, he was chased by two of the appellants and caught and felled to the ground.
After this the remaining four appellants appeared and beat Abdul Sheikh with diverse weapons, while those who were not armed, held him pinned to the ground.
Mr. Chakravarti is right in contending on these facts that the act took place in furtherance of a common intention.
No doubt, as has been laid down by the Privy Council and by this Court in cases which are now very familiar, common intention must exist before the criminal act is perpetrated, and that is the essence of section 34.
Here, in our opinion, that requirement was completely satisfied, because the six accused could not but by a prior concert have appeared simultaneously at the scene, and chased and overthrown the victim, held him down and beaten him.
The facts disclosed in the evidence clearly establish a prior concert amongst the six appellants.
It has been so inhered by the Assistant Sessions Judge, and we see no reason to differ from him.
Now that the criminal act has been held by us to have been the result of a previous concert and in furtherance of the common intention, we shall proceed to examine whether section 34 I.P.C. can be made applicable for the purpose of holding that culpable homicide not amounting to murder was committed, and that each of the appellant was responsible for the offence.
Section 34 of the Indian Penal Code reads as follows: "When a criminal act is done by several persons, in furtherance of the common intention of all, each (1) I.L.R. [1952] 1 AlL. 639.
176 of such persons is liable for that act in the same , manner as if it were done by him alone." In section 33 which precedes, it is laid down that the word "act" ' denotes not only a single act but also a series of acts.
In other words, as was stated by the Judicial Committee, in Barendra Kumar Ghosh 's case(1) "a criminal act means.
that unity of criminal behaviour, which results in something, for which an individual would be punishable, if it were all done by himself alone, i.e., a criminal offence.
" Here, the beating was perpetrated not by a single individual but by three persons with whom others were acting in concert.
The criminal act resulted in the criminal offence of culpable homicide not amounting to murder.
There is no dispute as to that.
Whether all the appellants individually would be responsible for the death of Abdul Sheikh is the question to be determined, and that conclusion can only be reached if it can be said that the act which was committed was done in furtherance of a common intention.
It is argued that section 304 makes a difference in its two parts between the commission of the offence of culpable homicide with a particular intention and the commission of the same offence without that intention but with a particular knowledge.
It is urged ' that this distinction makes it impossible that section 34 which deals only with common intention can be read with it.
Section 304 reads as follows: "Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and ' shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause` death, but: (1) Cal.
177 without any intention to cause death or to cause such bodily injury as is likely to cause death.
" Sec. 304 does not define culpable homicide not amounting to murder.
That definition is to be found in section 299, which provides: "Whoever causes death by doing an act with the intention of causing death, or with *,he intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
" Culpable homicide is the causing of the death of a person in three ways: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as is likely to cause death, and (3) with the knowledge that the offender is likely by such act to cause death.
The offence of culpable homicide becomes murder when four circumstances exist.
They are mentioned in section 300.
A number of excep tions are however included, and those exceptions show extenuating circumstances on strict proof of which the offence is again brought down to culpable homicide not amounting to murder.
The causing of the death of a person by doing an act accompanied by intention in the two ways described in section 299 or with the knowledge that the act is likely to cause death also described there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous.
Once it was established, as was established in this case, that the act was a deliberate act and was not the result of accident or rashness or negligence, it is obvious that the offence which was committed was one under section 304.
In the present case however death was not the result of the act of a single individual but was the result of the act of several persons, and they shared the common intention, namely, the commission of the act or acts by which death was occasioned.
Section 34 is a part of a group of sections, of which some other sections may also be seen.
Section 35 is as follows: 134 159 S.C. 12. 178 "Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention." In this section also the responsibility is shared by each offender individually if the act which is criminal only by reason of certain criminal knowledge or intention is done by each person sharing that knowledge or intention.
Indeed, this section also was applicable here.
Under section 37, "when an offence is committed by means of several acts, whoever intentionally co operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence." By co operating in the doing of several acts which together constitute a single criminal act, each person who co operates in the commission of that offence by doing any one of the acts is either singly or jointly liable for that offence.
Section 38 then provides: "Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
" That is to say, even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation.
The illustration which is given clearly brings out that point.
Viewing these sections in this manner it is obvious that two sections in this group deal with individual responsibility for a single criminal act perpetrated by a large number of persons who either share a common intention or possess the criminal knowledge (sections 34 and 35) and the third with co operation between several accused in the completion of the criminal act (section 37).
Lastly section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.
179 Section 34, when it speaks of a criminal act done by several persons in furtherance of the common, intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence.
In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of action of several persons.
No doubt, a person is only responsible ordinarily for what he does and section 38 ensures that; but the law in section 34 (and also section 35) says that if the criminal act is the result of a common intention, then ,every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration.
Barendra Kumar Ghosh 's case(1), the Judicial Committee ,observed: "Sec.
34 I.P.C. deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. 'That act ' and then again 'it ' in the latter part of the section must in clude the whole of the action covered by the criminal act in the first part of the section.
" Provided there is common intention, the whole of the result perpetrated by several offenders, is attributable to each ,offender, notwithstanding that individually they may have done separate acts, diverse or similar.
Applying this test to the present case, if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down and others beat him with their weapons, provided the common intention is accepted, they would all of them be responsible for the whole of the criminal act, that is to Say, the criminal offence of culpable homicide not amounting ,to murder which was committed, irrespective of the part played by them.
The common intention which is required by the section is not the intention which section 299 mentions in its first part.
That intention is individual to the offender unless it is shared with others by a prior concert in which ,case sections 34 or 35 again come into play.
Here, the common (1) Cal.
197 180 intention was to beat Abdul Sheikh, and that common intention was, as we have held above, shared by all of them.
That they did diverse acts would ordinarily make their responsibility individual for their own acts, but because of the common intention, they would be responsible for the total effect that they produced if any of the three conditions in section 299, I.P.C. applied to their case.
If it were a case of the first two conditions, the matter is simple.
They speak of intention and section 34 also speaks of intention.
The question is whether the second part of section 304 can be made applicable.
The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part.
But knowledge is the knowledge of the likelihood of death.
Can it be said that when three or four persons start beating a man with heavy lathes, each.
hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating, the requirements of section 304, Part II are not satisfied in the case of each of them? 'If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why section 304, Part II cannot be read with section 34.
The common intention is with regard to the criminal act, i.e., the act of beating.
If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e.,.
beating, there is no reason why section 34 or section 35 should not be read with the second part of section 304 to make each liable individually.
This matter has been elaborately considered in the judgment of Lodge J. and again in the Full Bench decision of the Allahabad High Court.
We do not think that we need say more on this, because we are in agreement with the decision given by the majority in the Calcutta High Court case and the Full Bench decision of the Allahabad High, Court.
It appears to us that in other cases doubt was felt because section 304 is in two parts, and first part is concerned with culpable homicide committed with two types of intention and the second part with culpable homicide committed with a particular knowledge.
It appears that it was felt that section 34, which deals with common intention, could not be read with 181 the second part of section 304.
In our opinion, the learned Judges who held that view and we say it respectfully fell into the error of viewing the second part of section 3,04 divorced from common intention whatever.
A person does not do an act except with a certain intention, and the common intention which is requisite for the application of section 34 is the common intention of perpetrating a particular act.
Previous concert which is insisted upon is the meeting of the minds regarding the achievement of a criminal act.
That circumstance is completely fulfilled in a case like the present where a large number of persons attack an individual, chase him, throw him on the ground and beat him till he dies.
Even if the ,offence does not come to the grade of murder, and is only culpable homicide not amounting to murder, there is no doubt whatever that the offence is shared by all of them, and section 34 then makes the responsibility several if there was a knowledge possessed by each of them that death was likely to be caused as a result of that beating.
This circumstance is completely fulfilled in the present case, and we are, therefore, satisfied that the conviction of the appellants was proper, and see no reason to interfere.
In the result, the appeal fails and is dismissed.
Appeal dismissed.

summary/full:
The six appellants were convicted under section 304 Part II with section 34 of the Indian Penal Code by the Sessions Judge add their appeal was summarily dismissed by the High Court.
On appeal by special leave, it was contended that section 304, Part 11 could not be read with section 34 Indian Penal Code because the second part of section 304 excluded intention and was concerned with knowledge and the conviction was illegal.
Held:(i) Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence.
In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of the action of several persons.
(ii)Knowledge in section 304 Part 11 is the knowledge of likelihood of death and the common intention is with regard to the criminal act.
If the result of the criminal act is the death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, there is no reason why section 34 should not be read with the second part of section 304 to make each liable individually.
lbra Akanda vs Emperor, I.L.R. and Saidu Khan vs State, I.L.R. [1952] 1 All, 639, approved.
Ramnath vs Emperor, A.I.R. 1943 All. 271, Shahibzada V. The Crown A.I.R. 1950 Peshawar 24, Debi Chand Haldar vs Emperor, and Barendra Kumar Ghosh vs Emperor, Cal.
referred to.


judgement:
Appeal No. 971 of 1963.
Appeal by special leave from the judgment and order dated April 15, 1963 of the Andhra Pradesh High Court in Writ Petition No. 1096 of 1962.
P.A. Chaudhury and T. V. R. Tatachari, for the appellant.
215 H.N. Sanyal, Solicitor General and P. Ram Reddy, for respondent No. 3.
January 13, 1964.
The Judgment of the Court was delivered by AYYANGAR J.
This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh by which a Writ Petition filed by the 3rd Respondent K. Brahmananda Reddy was allowed and an Election Petition filed by the appellant was directed to be dismissed.
The facts giving rise to the proceedings with which the appeal is concerned are briefly as follows: At the General Elections held in the month of February 1962 for the Legis lative Assembly Constituency of Phirangipuram in Guntur District in Andhra Pradesh the third respondent Brahamananda Reddy and one Chandramouli, the 2nd respondent before us, were the contesting candidates.
The polling at the Election took place on the 26th February 1962 and the Returning Officer declared Brahmananda Reddy, elected as having obtained, the majority of valid votes.
Thereafter, the appellant who is a voter on the rolls of the said Consti tuency filed an Election Petition before the Election Com mission on April.
11, 1962 under section 81 of the Representation of the Peoples Act, 1951, which we shall refer to as the Act.
There was no formal defect in the petition, it was accompanied by the requisite number of copies provided for by the Act and also by the treasury receipt evidencing the deposit of the requisite sum for security as provided by section 117 of the Act.
The grounds on.
which the election was sought to be set aside were various and included inter alia allegations of corrupt practices against the returned candi date as well as his election agent, as also several irregularities in the polling by having the votes of dead voters recorded as well as by double voting. 'Me petition was received by the Commission, who after satisfying itself that it was in conformity with the Act had a copy of the petition published in the Official Cazette on May 17, 1962 as provided by section 86 of the Act.
In due course, an Election Tribunal was constituted and the petition was referred to the Tribunal for trial.
The returned candidate Brahmananda Reddy filed 216 his Written Statement on September 15, 1962 in which the allegations of fact made in the petition were denied.
Be sides what might be termed the merits of the allegations in the election petition, Brahmanda Reddy raised by his Written Statement several technical objections pointing out certain defects in the petition.
This appeal is not concerned either with these technical defects in the election petition or with the defence raised on the merits to the charges that were formulated in it.
The merits have yet to be tried, and as regards the technical objections to the petition raised in the Written Statement dated September 15, 1962, they have been disposed of by the High Court and the same are not before us.
A few days later on September 24, 1962, Brahmananda Reddy filed a further Statement of objections to the petition raising mostly objections of a technical nature and of these the only objections which is the subject matter of the present appeal is that contained in paragraph 2 which reads, and we quote the material words: "It is further submitted on behalf of the 1st respondent that the above petition filed u/s 81 of the Act is not an Election Petition. .
As the requirements of section 81(3) of the Act are not complied with, the petition is, therefore, liable to be dismissed u/s 90(3) of the Act as it does not comply with the provisions of sec.
81 of the Act. . .
This second statement contained a prayer that in view of the technical objections, the maintainability of the petition might be decided as a preliminary issue as the objections went into the root of the matter.
Paragraph (2) extracted earlier is somewhat vague but in the arguments before the Tribunal it was explained as indicating an objection alleging non compliance with section 81 (3) of the Act which runs: "Every election petition shall be accompained by as many copies thereof as there are respondents.
mentioned in the petition and one more copy for the use of the Election Commission, 217 and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
" We shall refer later to the precise defect which was relied on in support of the case that there was a non compliance with this provision.
The Tribunal acceded to this request and by its order dated November 7, 1962, it decided the preliminary objections including the one just now mentioned in favour of the election petitioner and fixed a date for the trial of the petition on the merits.
Brahmananda Reddy thereupon moved the High Court under Article 226 of the Constitution and prayed for the issue of the Writ quashing this decision of the Tribunal and sought the dismissal of the election petition for non compliance with the provisions of the Act.
The learned Judges of the High Court disallowed the other technical objections raised, but held that the petition did not comply with the requirements of section 81(3) of the Act and for this reason they, directed the dismissal of the Election Petition.
Ile appellant thereafter has filed this appeal after obtaining special leave from this Court.
The subject of controversy in this appeal lies in a very narrow compass.
But before we deal with it, it will be convenient to specify the precise defect which the learned Judges have held to be fatal to the maintainability of the Election Petition.
As stated earlier, the Election Petition filed was accompanied by the number of copies required to accompany the petition under section 81(3).
The Election Petition was type written and the copies which accompanied the petition were carbon copies of the type script, so there was no question of the copies being other than 'true ' copies.
The copies bore two signature in original of the Election Petitioner authenticating both the contents of the petition as well as the verification thereof.
The Petitioner did not however insert the words 'true copy ' before or above his signatures.
The learned Judges of the High Court considered that this rendered the petition one not in accordance with section 81(3) of the Act and it is on this ground that the Election, Petition filed by the appellant has been dismissed and it is the correctness of this decision that is convassed in the appeal before us.
In view of the arguments addressed to us it would be necessary to set out a few of the relevant provisions of the, Act which bear upon the points urged, but before doing so we shall refer to article 329 of the Constitution which pro vides: ". . . 329(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
" In accordance with this.
we have the provisions of the Act and, particularly those contained in Part VI commencing with section 79.
Section 80 repeats the provision in the Constitution already extracted and enacts : "No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
" Section 81 deals with the presentation of petitions.
It runs: "81.
Presentation of petitions.
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (i) of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
219 Explanation.
In this sub section, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) An election petition shall be deemed to have been presented to the Election.
Commission: (a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf (i) by the person making the petition, or (ii)by a person authorised in writing in this behalf by the person making the petition; or (b) when it is sent by registered post and is deli vered to the Secretary to the Commission or the officer so appointed.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and, every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." Before, proceeding further it is necessary to advert to the history of the provision in sub section (3) for learned counsel for the respondents laid some store by the object with which the provision was introduced.
As enacted in 1951, section 81 contained only two sub sections, the first deal ing with the time within which a petition had to be filed and the second with the person or authority and the manner in which the petition had to be presented in order to cons titute the presentation one to the Election Commission.
At that date the Election Commission, after scrutinizing the petitions to ascertain whether there were any formal defects, had itself to make copies for being served on the respondents.
To avoid this trouble and inconvenience to the Commission and the delay which the making of such copies 220 necessarily involved, sub section (3) which we have set out earlier was introduced into section 81 by an amendment affected by Act XL of 1961.
The point made, based on this feature, we shall reserve for later discussion.
Section 82 deals with the parties who are to be impleaded in the petition and section 83 with the contents of the petition.
section 83(1)(c) enacts: "An election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings." subsection (2) requires a similar signature and verification of schedules or annexures to the petition.
Section 85 empowers the Election Commission to dismiss a petition in certain contingencies.
It reads: "85.
If the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commissi on shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.
" The succeeding sections deal with the trial of Election Petitions, after making provision for the appointment of an Election Tribunal by section 86 but what is relevant in the pre sent context is section 90 and it is enough to quote the material words: (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Sub section (3) reads: The Tribunal shall dismiss an election petition which does not comply with the provisions of 221 section 81, notwithstanding that it has not been dismissed by the Election Commission under section 85." The reasoning on which the learned Judges have based their decision shortly stated is this.
It is the requirement of section 81(3) of the Act that an election petition should be accompanied by the number of copies specified there, and equally so that the copies so accompanying "shall be attest ed by the petitioner under his own signature to be a true copy of the petition".
There was, of course, the signature of the petitioner on the copies, but there was no attestation by him that "it was a true copy".
This constituted a noncompliance with the requirements of section 81 which brought into play the terms of section 90(3) of the Act which required the Tribunal to dismiss a petition which did not comply with the provisions of section 81.
Though the learned counsel for the appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal.
This was that in the circumstances of the case there had been a sub stantial compliance with the requirements of section 81(3).
Before, however, dealing with it, it will be convenient to refer to some of the submissions made to us by the learned Solicitor General appearing for the contesting respondents. 'He submitted to us certain propositions which however we consider really unexceptionable.
He said that an election petition was not to be equated to an action at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dis pensing power to waive non compliance.
We consider these propositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the ,omission to add the words "true copy" in the copies which were admittedly exact copies of the petition, constituted a non compliance with section 81 (3) as to render the petition liable to be rejected under section 90(3) of the Act.
Learned counsel for the appellant urged that the juris diction of the Tribunal under section 90(3) to dismiss 'an ele 222 tion petition which does not comply with the provisions of section 81 ' was attracted only if there was a defect in the peti tion itself and that a defect merely in the copy accompanying the petition would not be a case of a "petition not complying with the provisions of section 81" so as to require or even permit the Tribunal to dismiss the petition.
In support of this submission, the difference in the language employed in section 85 and section 90(3) of the Act in the matter of making reference to the requirements of section 81 was adverted to.
Besides, it was pointed out that both section 90(3) and before it section 90(4) were in their present form making refer ence to section 81 when the latter section did not contain the third sub section relating to copies accompanying the petition, and that the content of section 90(3) should not be held enlarged because in 1961 sub section (3) was added to section 81 particularly because the language of section 90(3) was not altered to reflect the change.
We are not impressed by this argument.
When section 81 (3) requires an election petition to be accompanied by the requisite number of copies, it became a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition.
If that is a requirement of section 81, no distinction can be drawn between the requirements of sub sections (1) and (2) and of sub section (3).
We might add that if there is a total and complete non compliance with the provisions of section 81(3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within section 80 of the Act.
We are therefore inclined to consider that if there had been such a non compliance with the requirement of sub section (3) not merely the Election Commission under section 85 but the Election Tribunal under section 90(3) would prima facie not merely be justified but would be required 'to 'dismiss the election petition.
This takes us to the point as to whether the requirement of section 81(3) has been complied with or not.
The principal submission of the learned Solicitor General was based the language employed in section 81(3) of the Act read in 223 the light of the direction contained in section 90(3) which cast on the Tribunal the duty to dismiss an election petition which did not conform to the requirements of the former.
In particular, he laid stress on the use of the imperative 'shall in section 81(3) when denoting the requirement of "attes tation" "under the petitioner 's signature" of the copy bearing the signature being a "true copy".
It was in this connection that he pointed out that the provision for properly attested copies of the petition accompanying the petition was introduced by the amendment effected in 1961, and the object of Parliament was two fold; first to save the time and inconvenience which the previous procedure cast on the Election Commission, of itself having to make copies for service on the respondents, and secondly by this means to expedite the conclusion of the trial of an election petition.
He submitted that the attainment of these objects would be entirely frustrated if the respondents on whom these copies were served had still to make enquiries to satisfy themselves whether the copies were true copies, without the same being asserted to be so on their face.
In support he referred us to the decisions in Noseworthy vs Overseers of Buckland etc.
(1) and in Spice vs Bacon (2 ) as illustrating the degree of strictness and literal compliance which was insisted on by courts in regard to provisions of like character.
The first of these cases was a registration appeal and the Act provided that a person who objected to a voter 's quali fication might be heard in support of his objection if he had given notice to the voter and the manner of giving notice was by sending it by post addressed to his place of abode "as described".
It was held that a notice by post addressed correctly but not to the address "as described" was not a compliance with 'the requirement and that in consequence the objector could not be heard.
We do not consider that this decision lays down any hard and fast rule or principle of construction which is attracted 'to every case where a statute calls for interpretation.
In ultimate analysis the question is one of the construction of the relevant provision of the particular statutes which proceeds on the basis.
of the words used understood in the context of the statute.
(1) L.R. 9 C. P. 233.
(2) L.R. a exhibit D. 463.
224 The second case raised a question as to the meaning of the word "true copy" in the Inn keepers ' Liability Act 1863, which required that in order to obtain the benefit of the limitation of liability conferred by the Act, a "copy" of the Act had to be exhibited at the Inn.
The copy which was exhibited omitted some material words of the section which was required to be exhibited.
The Court held that when a claim was made on the inn keeper for loss sustained by a guest, he could not claim the benefit of the statute.
We are unable to appreciate the relevance of this decision.
It turned on what was meant by the word 'copy ' in the Act and the portion which was omitted in the copy exhibited was a material portion.
There is no doubt that such a 'copy ' which differs in material particular from the original is not a `copy ' within the Act.
In this connection we might make a reference to the decision of this Court in Murarka vs Roop Singh(1) where the question as to what is a "copy" is elaborately discussed and some of the English decisions touching this matter have been set out.
We shall have occasion to refer to Murarka 's case later, but for the present we need only add that the decision relied on by the Solicitor General is not at variance with what this Court has laid down in Murarka 's case.
The next matter to be considered stems from the submission as regards the object of Parliament in enacting sub section (3) of section 81 and that expeditious disposal of election petitions which was the object would be frustrated if sub stantial compliance with the provision was held sufficient.
We are not impressed with this argument.
While we are conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the circumstance that to read every requirement literally might equally defeat the purpose for which Part VI is inten ded, viz., that elections are conducted in accordance with the relevant statutory provisions framed to ensure purity and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant (1) ; 225 breach of the statutory provisions in not held entitled to represent the constituency.
The Court had to deal with a similar question of inter pretation of words which appeared mandatory in Kamaraj Nadar vs Kunju Thevar(1).
One of the points which arose for consideration was whether the requirement of section 117 of the Act which then required the petitioner to enclose with the petition a Government treasury receipt of Rs. 100 in favour of the Secretary to the Election Commission had been complied with by the election petitioner and section 90(4) of the Act which corresponded substantially to the present section 90(3) required the Election Tribunal to dismiss a petition which did not comply with the provision, inter alia, of section 117.
The petitioner in that case had made the deposit of the requisite amount in the institutions named in the section but the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Com mission as required by statute.
It was contended that the petition did not conform to the provisions of section 117 and had therefore to be dismissed by the Tribunal.
This Court rejected this submission and after adverting to the purpose of the provisions, held that this was fulfilled by the deposit made and that though the requirement as to deposit was mandatory, the same was complied with by the deposit made.
We consider that this reasoning is not irrelevant to the construction of section 81(3) of the Act either.
In this connection we might refer to the decision of this Court in Murarka vs Roop Singh (2) in which this Court had to consider a question closely related to that now under debate.
That case was also concerned with certain defects similar to what we have in the appeal before us.
The defects which were there relied on by the returned candidate as justifying or requiring the dismissal of the Election Petition fell into several categories which included non compliance with the requirements of section 81(3).
There, as here, the petition was accompanied with the re (1)[1959] S.C.R. 583.
(2) ; 134 159 S.C 15 226 quisite number of copies as specified in section 81(3) but what was urged was as regards certain defects in the copies filed.
These defects fell into two types.
First there were two matters which it was stated rendered the copies filed not 'true copies '.
If the expressions 'copy ' or 'true copy ' were read as exact copies of the original, the copies filed did not satisfy that test.
The two defects were: (1) The original petition contained the signature of the petitioner at the foot of the petition as required by section 83 (1) (c) of the Act.
In the copy filed there was no copy of this signature.
To that extent therefore the copy was not an exact copy.
The second matter under this head was that the verification in the copy served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group.
The other type of defect which was claimed to constitute noncompliance with section 81(3) was that the words 'true copy ' with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed.
The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition.
But this certified copy did not contain an endorsement stating that it was a 'true copy ' with the signature of the petitioner.
The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature.
As regards the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight and as regards the other that it was no defect at all.
This decision was upheld by this Court holding that the word copy in section 81(3) meant a copy which was substantially so and which did not 227 contain any material or substantial variation.
By 'copy ' in section 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original.
Applying this test, this .Court came to the conclusion that there was no failure to comply with the last part of section 81(3), with the result that section 90(3) of the Act was not attracted.
This Court besides left open the question as to whether any part of section 81(3) was directory or whether any portion of it was mandatory.
In the present case also, we do not propose to deal with the larger question as to whether section 81(3) or any portion of it is merely directory.
In view of the decision of this Court it would be clear that if there is a substantial compliance with the requirement of section 81(3), the election petition cannot be dismissed by the Tribunal under section 90(3).
The question then is whether on the facts above stated, there is or is not a sufficient and substantial compliance with section 81(3).
We have already pointed out that the appellant has complied with the following requirements: (1) The petition has been accompanied by the requisite number of copies.
(2) The copies that accompanied the petition were true copies.
(3) Each of those copies bore the signatures of the petitioner.
If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document.
Now in regard to this the learned Judges of the High Court themselves ob served after referring to the terms of section 81(3): "No doubt, what is necessary is a substantial compliance with the requirement of attestation.
For instance, if it is proved that the election petitioner has signed animo attestendi, and omitted the words 'true copy ' by mistake or inadvertently, there is a substantial requirement of the compliance of section 81(3).
The 228 same may be said if the relative positions of the words 'true copy ' and of the signature one below the other are not correct.
" They however held that as there was no evidence of the sig nature having been appended animo attestendi, there was non compliance with section 81(3).
The learned Solicitor General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of the copy.
He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy, even if the words 'true copy ' were omitted to be put down.
In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other might be taken to have been made animo attestendi.
We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with section 81(3), seeing that a signature in origisignatures now found on the copies were intended to authenticate the document to which it is appended, viz., the copy, it would only mean that the copy did not reproduce the signature in the original.
There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a noncompliance with the requirement of this provision.
If the nal was not needed on the copy and a writing copying out the name of the signatory would suffice.
The decision of this Court in Murarka 's case(1) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy.
In the circumstances, we consider that there has been substantial compliance with the requirement of section 81(3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition.
The appeal is accordingly allowed and the order of the High Court dismissing the petition is set aside.
As owing (1)[1964] 3 section R. 573 229 to the filing of the Writ Petition there has been a considerable delay in the trial of the Election Petition, we express the hope that the petition would be heard and disposed of at an early a date as is conveniently possible.
The appellant will be entitled to his costs here and in the High Court which will be paid by the contesting third respondent.
Appeal Allowed.

dataset_name: IN-Abs

summary/full:
The third respondent was declared elected to the Legislative Assembly of Andhra Pradesh in the general election held in 1962.
The appellant, a voter of the constituency filed an election petition challenging 214 the election of the third respondent on several grounds including corrupt practices.
The petition was accompanied by the requisite number of copies which were true copies and each of them bore the signature of the petitioner.
But there was no attestation at the foot of the copies that they were true copies.
The third respondent raised various preliminary objections and the Election Tribunal rejected all of them.
Thereupon he filed writ petition in the High Court praying for the issue of a writ quashing the Tribunal 's order.
His main contention was that since the copies of the petition did not contain an attestation stating that the copies were true copies there has been a violation of the mandatory provision of section 80(3) of the Representation of the People Act, 1951.
The High Court accepted the contention and issued a writ as prayed for.
The present appeal was filed with special leave granted by this Court.
HELD:(i) If there is a total or complete non compliance with the provisions of section 81(3) the election petition might not be "an election petition presented in accordance with the provisions of the part" withins.
80 of the Act.
(ii)By the expression "copy" in section 81(3) it was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original.
Murarka vs Roop Singh ; , referred to.
Noseworthy vs Overseers Buckland etc., L.R. 9 C. P. 233 and Spice vs Bacon, , distinguished.
(iii)In the present case the signatures on the copies cannot be held to have been merely intended to be a copy of those on the original, since a signature in original was not needed on the copy and writing or copying out the name of the signatory would suffice.
The absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy.
The facts and circumstance of the case show that there has been a substantial compliance.
with the requirement of section 81(3).
The wider question whether section 81(3) or as part thereof is mandatory or directory is left open.
The appeal is allowed.
Murarka vs Roop Singh ; and Kamaraj Nadar vs Kunjer Thevar, followed.


judgement:
Appeal No. 330 of 1960.
Appeal from the judgment and decree dated March 18, 1954, of the Calcutta High Court in Appeal from Original, Decree No. 80 of 1947.
section T. Desai and B. P. Maheshwari, for the appellants.
B. Sen, N. R. Ghosh, Salil K. Datt and P. K. Ghosh, for the respondents Nos. 1 and 2.
January 13, 1964.
The Judgment of the Court was delivered by AYYANGAR J.
This is an appeal preferred, by virtue of a certificate of fitness granted by the Calcutta High Court, against its judgment, by which the decree passed by the Subordinate Judge of Darjeeling was substantially affirmed.
The plaintiffs are the appellants before this Court.
The suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property known as the Azambad Tea Estate which comprised about 378 acres of land in Touzi No. 911 of the Darjeeling Collectors.
This property was set out in Schedule A to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures, but this appeal is not concerned with these others which were set out.
in Schs.
B and C to the plaint.
195 One Kazi Azam Ali was admittedly a full owner of this entire property and the proceedings giving rise to the appeal are concerned with the rights of his heirs to it.
The plain tiffs claim their title on the basis of various purchases from the heirs of this Azam Ali.
The contesting defendants were the Azamabad Tea Co. who also claim the entire property as transferees from the National Agency Co. Ltd., who too have been impleaded as defendants.
The National Agency Co. Ltd. claim to have purchased the entire 16 as.
interest in the property at a Court sale in pursuance of a decree obtained by them against Kazi Mohammed Ismail, the eldest son of Azam Ali.
Various contentions were raised by the plaintiffs in challenge of the validity of the transactions by which the defendants claimed their title.
But the learned Subordinate Judge repelled the plaintiffs ' claim and held that the purchase by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and that in consequence the plaintiffs ' vendors had no title to convey to them any interest in the property.
The plaintiffs ' claim of the property in respect of Sch.
A was therefore dismissed.
The plaintiffs preferred an appeal to the High Court and the learned Judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in Sch.
A to the plaint but confirmed the decree of the Subordinate Judge as regards the rest.
The learned Judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed.
The history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long, voluminous and complicated.
But, for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the contentions raised in support of the appeal.
The property covered by the Tea Estate was granted by Government by way of lease to one Mudir and another for 30 years, the term to start on the 1st of April 1898.
The grantees effected transfers of their lease hold and after several successive transfers the property was purchased in 196 1913 by one Kazi Azam Ali who got his name registered as a proprietor.
It was Azam Ali who started the tea garden.
constructed the requisite factories as accessories thereto and named it the Azamabad Tea Estate.
Azam Ali had several children and among them 8 daughters and in consideration of gifts made to them, these daughters by a registered deed executed in 1909 relinquished their rights of succession to Azam Ali.
They thus faded away from the picture and no more notice need be taken of them.
Besides these 8 daughters, Azam Ali had 8 sons who survived him and were among his heirs, when he died on June 8, 1917.
Mohammed Ismail was the eldest of these sons.
Azam Ali also left behind him a daughter who was born after ' the relinquishment of 1909 and three widows.
Admittedly the sons of Azam Ali, his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by Muslim Law.
On Azam Ali 's death his eldest son Ismail had his name entered in the Government records as the next in succession and at the time the thirty years term of the lease expired, the lease continued to remain in the name of Ismail alone.
We now proceed to the transactions as a result of which the contesting defendants claim to have obtained the full title to the Tea Estate.
Ismail made large borrowings and among them were some from the National Agency Co. Ltd. and for securing the loan he deposited with them the title deeds of the Tea Estate.
It may be mentioned that the deposit was on the footing that he was the full owner of the 16 as.
share of the property mortgaged.
The amount due under the mortgage was not paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the sale of the property for the realisation of the mortgage money.
The suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage decree holder on September 24, 1931.
The sale was confirmed on November 13, 1931.
This decree holder purchaser sold the property to the Azamabad Tea Estate the principal respondent before is.
There was some little controversy as regards the reality and effectiveness of the transfer of the property from the National Agency Co. Ltd. to the Azamabad Tea Estate, 197 but nothing turns on this, for even if that transfer was not effective that would not help the plaintiffs so long as they could not displace the title of the National Agency Co. Ltd. under the latter 's court auction purchase.
The case of the plaintiffs rested on the fact that Ismail who got himself registered as if he were a full proprietor of the lease hold interest in Touzi 911 was merely one of several co sharers of Azam Ali 's estate to whom it passed on his death.
The lease hold which was his property was according to them inherited by all his heirs including Ismail, the seven other sons, the three widows and the daughter born after 1909.
The term of the lease granted by the Government expired in 1928 and a renewed lease was granted in the name of Ismail alone.
Rival contentions were urged as regards the effect of this circumstance on the right of Ismail.
It was the case of the contesting respondents that the lease granted in 1928 in favour of Ismail was his sole and individual pro perty and even if for any reason the other heirs of Azam Ali had an interest in the previous lease hold, they did not have any such interest in the property covered by the fresh lease.
On the other hand, the case of the plaintiffs was that by the renewal of the lease, Ismail obtained qua his co heirs the same interest as he formerly had in the lease of 1898.
The renewal, they stated, was for the benefit not merely of Ismail but for everyone of his co heirs who still retained his or her interest in Azam Ali 's estate.
On this basis the plaintiffs raised the contentions that when by the sale in execution of the mortgage decree obtained by the National Agency Co. they purchased the property mortgaged, it was only the interest of Ismail that passed to them and not those of his co sharers who were no parties to the mortgage, There is one further transaction to which we must advert before passing on to the next stage of the proceedings.
After the mortgage by deposit of title deeds in favour of the National Agency Co., Ismail transferred his entire interest in the mortgaged property, that is, in the equity of redemption, to his wife Mst.
Nazifannessa, by a deed dated May 6, 1930.
Notwithstanding this deed and this transfer of the equity of redemption Mst.
Nazifannessa was not made a party to the 198 mortgage suit by the National Agency Co. The plaintiffs who claim to have acquired Mst.
Nazifannessa 's interest contended that by reason of the failure to implead Nazifannessa in the mortgage action, her right to redeem the mortgage was still in tact in spite of the mortgage decree and the sale in pursuance thereof, and on this footing made a claim in the alternative to redeem the mortgage in favour of the National Agency Co. and obtain possession after re demption.
To complete the narrative of the relevant facts, very soon after the purchase in Court auction in execution of the mortgage decree, the heirs of Azam Ali brought a suit (58 of 1931) to set aside the decree and the sale in favour of the National Agency Co. Ltd. on various grounds collusion, fraud, the circumstance that Ismail was merely a co sharer entitled to about 2 1/2 as.
share in the property and so could not mortgage more than that share, and that the decree could not bind a larger interest nor the sale convey anything more than that share, even if it conveyed any title to the property.
This suit however did not proceed to trial, but was dismissed for default, in that the plaintiffs did not appear in Court on the date fixed for trial.
The only other matter to be mentioned is that the plaintiffs have, by their purchases, acquired from the several co heirs, directly or mediately, the entire 16 as.
share in the property assuming that their vendors had any such right.
Armed with these purchases the plaintiffs filed this suit for the reliefs already indicated.
The defences raised to the suit were three fold: (1) That Ismail was the sole proprietor of the Tea Estate at the date of the mortgage and consequently the entire interest was the subject of mortgage and so passed at the court sale.
This was based on the provisions of the Crown Grants Act, now the Government Grants Act.
It would be recollected that the thirty years lease of Touza 911 was renewed in 1928 and this renewal was made in the name of Ismail alone.
Based on this feature a contention was raised that the grant of the lease created a new title in the grantee since the original lease in 199 which alone the heirs of Azam Ali might have had a share was extinguished by the termination of that lease by efflux of time.
(2) The second line of defence was that Ismail, even if in fact or law was not the full owner, was an ostensible owner of the entire interest in the property and that the co heirs were estopped from questioning the validity of the mortgage of the entire interest effected by him under section 41 of the Transfer of Property Act and that in conse quence the sale in execution passed the entire 16 as.
share to the purchaser.
(3) Lastly, it was urged that the plaintiffs ' suit was liable to be dismissed by reason of the provisions of 0.
IX, r. 9 of the Civil Procedure Code as the earlier Original Suit 58 of 1931 brought by the co heirs to set aside the sale under the mortgage decree had been allowed to be dismissed for default.
The learned Judges of the High Court rejected the first two of the defences but held that except to the extent of an eight pies share which represented the interest of a co heir which was not affected by the proceeding in Suit 58 of 1931, the plaintiffs were precluded by 0.
r. 9, Civil Procedure Code from disputing the sale in execution of mortgage decree by reason of the dismissal for default of Suit 5 8 of 1931.
Before proceeding to set out the arguments addressed to us by Mr. Desai, learned counsel for the appellants, it might be convenient to dispose of the submissions made to us by Mr. Sen, learned counsel for the respondents, seeking to ,sustain the first two defences which were repelled by the High Court.
The first of them was that by reason of the renewal of the lease in 1928 in the name of Ismail and the entry of his name as sole lessee in the revenue records, the leasehold became his sole property.
Apart from the arguments about Ismail being the ostensible owner of the entire 16 as.
share in the lease hold under the lease of 1898 which we shall consider a little later Mr.
Sen did not dispute that 200 Ismail 's co heirs were entitled to their fractional shares in the property under the original lease.
The acceptability of this argument regarding the renewed lease has to be determined on the basis of two factors first the intention of the parties, and here primarily of the grantor, as to the nature and quantum of the title intended to be conferred on or obtained by Ismail and, second, the provisions of the Crown, Grants Act which governed the grant on which reliance was placed as leading to that result.
First, as to the intention of the parties.
The original lease of 1898 was due to expireon March 31, 1928.
On July 20, 1928 Mohd. Ismail made a petition to the Deputy Commissioner, Darjeeling by which after drawing the latter 's attention to the date on which the lease was to expire, he "respectfully solicited the favour of ' kindly granting a further lease of the said Estate for a further period of 30 years.
" The Deputy Commissioner replied by letter dated August 10, 1928 sending Ismail the draft of the renewed lease for his approval and return adding "in the record of rights the following names have been recorded: 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.
; Please mention the name in whose favour the lease will have to be issued." Ismail returned the draft lease with his approval but desired that the lease should be issued according to the name in the land register.
We are unable to read this request as meaning that Ismail, contradicting what the Government said, wanted that the leasehold interest should be his sole property in which his co heirs who had interest in the earlier lease were to be denied all beneficial interest.
It was thereafter that the lease was executed on February 1, 1929 in the name of Ismail to be operative from April 1, 1928 and was in terms in renewal of the previous 201 lease.
In the circumstance, we are satisfied that the Gov ernment intended to grant a lease in favour of his co sharers as well, though the lease deed was in the name of Ismail alone.
If Ismail intended to benefit himself at the expense of his co sharers and as we have said, we do not read his reply to the Deputy Commissioner as disclosing such an intention, the same was not made known to the Government.
We are therefore unable to accept Mr. Sen 's submission based on the intention of the parties.
He, however, submitted that whatever be the intention of the parties, by reason of section 3 of the Crown Grants Act Ismail 's title to the full 16 as.
share in the leasehold could not be disputed.
This section reads: "3.
All provisions, restrictions, conditions and limitations over 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.
" If, as we have held.
it was the intention of the Government in granting the renewal that the co heirs too should have the benefit of the lease we do not see how these provisions affect their beneficial interest in the lease.
Nor are thereany clauses in the lease which preclude the existence of abeneficial interest in persons other than the lessee named.
This point is therefore without substance and is rejected.
The next point urged was based on section 41 of the Transfer of Property Act.
It was said that Ismail was by reason of the entry in the revenue registers, which the co heirs did nothing to correct, ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in court auction in execution of the decree by the National Agency Co. Ltd. passed the full title to the Tea Estate and that the co heirs were consequently estopped from disputing the defendant 's right to the full 16 as.
share in the property.
In order that section 41 of the Transfer of Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co sharers and besides that they took reason able care 202 to ascertain whether Ismail had the power to make a transfer of the full 16 as.
interest.
Now, the facts however were that except the property being entered in the revenue records in Ismail 's name, and that the management of the property was left by the co sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property.
It is manifest that the conduct of co sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights.
The learned Judges have also pointed out that even the least enquiry by the mortgagee would have disclosed that Ismail was not the full owner and this finding was not seriously challenged before us.
In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that section 41 was inapplicable to cases of sales in court auctions for the reason that what the court is capable of selling and what is sold in execution of a decree is only the right, title and interest of the judgment debtor and nothing more.
We, therefore, hold that the learned Judges of the High Court rightly held that section 41 of the Transfer of Property Act afforded no defence to the respondents.
The next and the only point remaining for consideration is whether the appellants ' suit is barred under the provisions of 0.
r. 9, Civil Procedure Code.
The part of this provision material for our purpose runs: "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 learned Judges of the High Court have held that this provision barred the plaintiffs ' claim in the present suit except to the extent of an 8 pies share in the estate which belonged to Azifunnessa and Najifennessa, two of the daughters of Azam Ali, who on the death of their mother became entitled to that share.
These two were not the parties to suit No. 58 of 1931 and hence the learned fudges held that their share (which was purchased 'by the plaintiffs) was unaffected by the dismissal of that suit.
203 The decision of the High Court in regard to this 8 pies share has become final and thus is outside controversy.
The ,only question is whether the plaintiffs appellants are entitled to anything beyond this share.
The suit, 58 of 1931, was instituted by 7 plaintiffs Ashfaq, Shamsuzzoha, Nurul Huda, Mohd. Yakub, these four being the sons of Azam Ali, two of his daughters Mahbuba Khatun and Habiba Khatun and one of his widows Bibi Marium.
There were two defendants the National Agency Co. Ltd. the purchaser in court sale of the property under the mortgage decree, whose title was challenged and against whom reliefs were claimed and Mohd. Ismail who was a pro forma defendant.
Ashfaq, The first plaintiff, died after the institution of the suit and certain of the parties already on record were recorded as his legal representatives.
The allegations in the plaint briefly were that the 2nd defendant Mohd. Ismail was not tile sole proprietor or owner of the Azamabad Tea Estate and that for that reason, the mortgage in favour of the 1st defendant, the mortgage decree obtained by it and the sale thereunder passed to it no title except to the extent of 2 1/2 as.
share belonging to Mohd. Ismail.
The plaintiffs therefore prayed for a decree declaring (1) that Mohd. Ismail had only 2 1/2 as.
share in the property and the remaining 132 1/2 as.
share belonged to the plaintiffs; (2) that only 2 1/2 as.
share was sold under the mortgage decree and purchased by the National Agency Co. Ltd. at the court sale.
The suit was instituted on 28th November, 1931 and after the issues were settled, the suit was posted for trial on 22nd August, 1932, on which date the plaintiffs were absent, no witnesses on their behalf were present, and their pleader reported no instructions.
The suit was therefore directed to be dismissed with costs in favour of the National Agency Co. Ltd. who was the only party present in Court.
It may be mentioned that Mohd. Ismail never appeared during the hearing of the suit.
204 Before taking up for consideration certain points urged before us by Mr. Desai regarding the construction of 0.
IX r. 9 C.P.C. we might dispose of a contention raised by him that Suit No. 58 of 1931 was filed fraudulently and collusively and the dismissal was the result of a settlement brought about collusively in order to defeat the plaintiffs ' rights.
We consider that there is no factual basis to sustain, this plea for he could point to no definite proof in support, and the most he could do was to refer us to certain suspicious circumstances.
We cannot obviously base any decision or rest any finding, on mere suspicion and we have no hesitation in saying that the submission does not deserve serious consideration.
The next submission was that even the 212 as.
share of Ismail did not pass under the sale in execution of the mortgage decree, because it was said Ismail had been, adjudicated an insolvent in Insolvency Case 38 of 1931 by the Dist.
Judge Purnia, as a result of which the properties which were the subject of the court sale had vested in the official receiver before the relevant date.
Though, no doubt, an allegation regarding this matter was made in the plaint and this was denied by the plaintiffs there is nothing in the judgments of the courts below or in the, evidence to indicate that the necessary facts were proved or that this point was urged with any seriousness at any stage of the proceedings until in this Court.
We have therefore nothing beyond the bare allegations and denials and as the full facts in relation to this matter were not placed before the Court we hold that this plea is devoid of merits and does not merit consideration.
It was next said that two of the plaintiffs in suit No. 58 of 1931, Nurul Huda and Habiba Khatun, a son and a daughter of Azam Ali were really adults but were shown in the cause title as minors represented by their respective natural guardians as their next friends and that as these adults could not in law be represented by persons purporting to act as their guardians they could not be held to be parties to the suit and hence their interests could not be affected by the dismissal of the suit.
This also is one of the matters in respect of which the plaintiffs beyond a mere pleading which was denied, made no grievance in the courts 205 below and the facts in relation to this issue, namely, the age ,,of the two plaintiffs at the date of the plaint not having been clearly proved, we do not find it possible to entertain the plea at this stage.
Mr. Desai, then submitted that Ashfaq who had figured as the first plaintiff in suit No. 58 of 1931 had already on April 18, 1931 transferred his 2 as.
13 gandas and odd share in Touzi No. 911 to one Pir Baksh from whom the plaintiff obtained a conveyance by a deed dated September 2, 1943 of what he had purchased from Ashfaq.
For this reason he urged that on the findings on the merits of the title in favour of the plaintiffs on the first two defenses we have dealt with earlier the plaintiffs should have been granted .a decree to this share of Ashfaq in addition to the 8 pies share decreed to them by the High Court.
No doubt, if this transaction were made out and was real, it would stand on the same footing as the 8 pies share in regard to which a decree was granted in favour of the plaintiffs by the judgment now under appeal.
We shall however consider this matter after dealing with the point urged as regards the construction of 0.
r. 9, Civil Procedure Code, which was his main submission and which, if upheld, would entirely eliminate the bar under this provision of law.
On this the first submission was that the rule which spoke of the "plaintiff" being precluded from bringing a fresh suit created merely a personal bar against the plaintiff in the first suit and that in the absence of words referring to the representatives of the plaintiff or those claiming under the plaintiff as in section 11 or section 47 of the Civil Procedure Code, the bar was not attracted to cases where the subsequent suit was by the heirs and assigns of that plaintiff.
In support of this submission Mr. Desai invited our attention to the observations of Das J. in Gopi Ram vs Jagannath Singh(1) where this argument was characterised as a weighty one and examined elaborately.
Though the learned Judge decided this matter on quite a different line of reasoning, he referred to various earlier decisions which appeared to him to favour the view submitted to us by Mr. Desai and expressed his hesitation in (1) L.L.R. 9 Pat. 447 at P. 454.
206 rejecting that construction.
We are not however impressed by the argument that the ban imposed by 0.
r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him.
Beyond the absence in 0.
r. 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument.
It has neither principle, nor logic to commend it.
It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his rights to that property and confer on the transferee a right which he was precluded by law from asserting.
There are, no doubt, situations where a person could confer more rights on a transferee than what he possessed but those are clearly defined exceptions which would not include the case now on hand.
This argument was addressed to the High Court and the learned Judges characterised it as startling, a view which we share.
The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward.
Aga in to say that an heir of the plaintiff is in a better position than himself and that the bar lapses on a plaintiff 's death, does not appeal to us as capable of being justified by any principle or line of reasoning.
In our opinion, the word "plaintiff ' in the rule should obviously, in order that the bar may be effective, include his assigns and legal representatives.
It was next urged that 0.
r. 9 precluded a second suit in respect of "the same cause of action" and that the cause of action on which Suit 58 of 1931 was laid and the present suit Title suit 18 of 1943 was not the same and so, the bar was not attracted.
In view of this argument it is necessary to examine them cause of action on which the present suit has been filed and compare and contrast with that in Suit 58 of 1931.
Closely analysed the material allegations to found the cause of action on which reliefs were claimed in the present suit 207 were (i) That the Tea Estate was originally the property of Azam Ali.
When he died his estate was inherited by his 8 sons, his widows and a daughter.
That the registration of the estate in the name of Md. Ismail was as a co sharer, the property belonging beneficially to all the heirs.
This position was not altered by the termination of the first lease and its renewal in 1928 for a further period of 30 years.
All the co heirs lived as a joint family with a common mess and hence there was no question of any adverse possession by Md. Ismail whose possession was not as sole proprietor or exclusive.
The suit on the mortgage was fraudulent and collusive, by Ismail colluding with the mortgagee to defraud his co heirs.
Details were mentioned as evidence of the fraud and collusion.
The sale in pur suance of the decree which was passed ex parte was also fraudulent.
On the date of the auction Ismail had no title even to the 2 1/2 as.
share because of his adjudication as an insolvent earlier.
The manner in which the 8 pies share of the daughters was obtained by the plaintiff was set out, and similarly the purchase by them through Pir Baksh of the share of Ashfaq.
The other purchases by the plaintiffs whereby they claimed to have obtained the 16 as.
share in the Tea Estate were set out.
The plaint then went on to refer to suit 58 of 1931 and set out their case as regards the nature of that litigation and its effect.
Lastly, they pleaded that they had obtained possession of the Tea gardens on October 10, 1934 and that on the next day the defendants moved the Magistrate for an order under section 144, Criminal Procedure Code and that the Magistrate had made an order against the plaintiffs restraining them from interfering with the possession of the defendants which necessitated their bringing the suit for the reliefs we have set out earlier.
We have already summarised the material allegations which were made in Suit 58 of 1931.
The material difference between the cause of action alleged in the present suit consists only in the addition of the allegations about the possession and dispossession in October, 1934.
This suit is based on the title of the plaintiffs by reason of their purchases and admittedly their vendors would have nothing to convey if the court sale conveyed, as it purported to 208 convey, the full 16 as.
interest in the Tea garden to the National Agency Co. Ltd. It was because of this that allegations were made to sustain their title and this could be done only if they established want of title to the extent of 16 as share in Ismail, the consequent ineffectiveness of the mortgage effected by Ismail and of the decree obtained in pursuance thereof and of the court sale in execution of that decree, being confined at the most to 2 1/2 as.
share belonging to Ismail.
These allegations which were fund amental to the plaintiffs ' case were identical with those which had been made in suit No. 58 of 1931.
Bearing these features in mind, the proposition that Mr. Desai submitted for our acceptance was briefly this.
A cause of action is a bundle of facts on the basis of which relief is claimed.
If in addition to the facts alleged in the first suit, further facts are alleged and relief sought ,on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of 0.
r. 9 "in respect of the same cause of action" are not satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit.
In support of this submission, learned counsel invited our attention to certain observation in a few decisions to which we do not consider it necessary to refer as we do not see any substance in the argument.
We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan and Ors.
Mahbub Ali Mian and Ors.
(1) is sound and expressescorrectly the proper interpretation of the provision.
In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. 11 r. 2 of the Civil Procedure Code, observed: "In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test (1)75 1. A. 121. 209 to be applied is: are the causes of action in the two suits in substance not technically identical?" The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijamonee Dasee vs Suddanund(1) and extracted the following passage as laying down the approach to the question : "Their Lordships are of opinion that the term 'cause of action ' is to be construed with re ference rather to the substance than to the form of action. . .".
Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits.
The property sought to be recovered in the two suits was the same.
The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same facts viz., the position of Md. Ismail quoad his co heirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage decree and the sale in execution thereof.
No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under 0.
r. 9 applies equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material.
The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession.
Their addition, however, does not wipe out the identity otherwise of the cause of action.
It would, of course, have made a difference if, without reference to the antecedent want of fun title in Ismail which was common to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could, on the strength of the possession and dispossession or the possessory title that they alleged, have obtained any relief.
It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit.
(1) ,315.
134 59S.C 14 210 The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits.
This can be answered only in the negative.
The learned Judges of the High Court therefore correctly held that the suit was substantially barred by O. IX.
It now remains to consider the claim of the plaintiffs to the 2 annas 13 odd gundas share of Ashfaq.
In paragraph 52 of their plaint the plaintiffs stated that by a registered sale deed executed on April 18, 1931 Ashfaq, the son of Azam Ali sold the entire interest which he possessed in the Azamabad Tea Estate to Pir Baksh in pursuance of a Bainama dated April 7, 1930 and put him in possession, and in the succeeding paragraph they set out their purchases of this share by a Kabala dated September 2, 1943.
In the joint written statement filed on behalf of the defendants 1 and 2 these allegations were controverted.
The execution of the sale deed in favour of Pir Baksh was denied and it was further stated that even if the sale deed were proved to have been executed it was a sham and nominal transaction and therefore inoperative to pass title.
Though no specific issue in relation to this sale to Pir Baksh was raised, there was a general issue (Issue No. 8) which related to the plaintiff 's acquiring title to the Tea Estate.
Ile sale deed by Ashfaq was filed and marked as exhibit 12(i) and the sale in favour of the plaintiffs by Pir Baksh as exhibit 12(c).
The effect however of this sale to Pir Baksh on the rights of the plaintiffs to relief does not appear to have been raised before the learned trial Judge.
It may be pointed out that the learned trial Judge held that Ismail was the full owner of the property under the lease granted in 1928, by reason of the provisions of the Crown Grants Act and even if this were not so, he held that his co heirs had consented to put him forward as the ostensible owner of the property with the result that they were ' estopped from impeaching the mortgage and the sale of the property in execution of the mortgage decree.
It is therefore possible that because of the view which the learned trial Judge was inclined to take of the title of Md. Ismail, the plaintiffs did not seriously put forward their rights under their purchase from Pir Baksh, because if the learned trial Judge was right, the sale by Ashfaq to Pir Baksh even if real 211 would not have helped the plaintiffs to obtain any relief.
In this connection it may be pointed that the plaintiffs claim to the 8 pies share which was allowed in their favour by the High Court, was not pressed in the trial court.
Even in the High Court, however, the point arising from the sale by Ashfaq to Pir Baksh does not seem to have been pressed.
We shall presently advert to and examine the submissions made to us by Mr. Sen as regards the merits of this claim to the share of Ashfaq, but before doing so we must refer to a point raised by Mr. Sen which necessitated a prolonged adjournment of the appeal after the main arguments were heard.
After pointing out that the plaintiffs did not agitate or press before the courts below any special right based on the purchase of Ashfaq 's share through Pir Baksh, he submitted that this might possibly have been because the property covered by the sale deed exhibit 12 (i) did not comprise Touza No. 911 the Azamabad Tea Estate.
There was scope for this submission because in the record as printed for the use of this Court, the Schedule annexed to the sale deed exhibit 12(i) was not printed but only the portion containing the description of the parties and the words of conveyance, with the result that Mr. Desai was unable to make out whether as a fact Ashfaq 's interest in the suit property was sold under exhibit 12(i).
To make matters worse the Schedule to the sale deed of 1943 executed by Pir Baksh was also not translated and printed in the record prepared for the appeal.
In view, however, of the categorical statement in the plaint as regards the indentity of the property conveyed under exhibit 12(i) with Ashfaq 's share in the Azamabad Tea Estate, we considered that the appellant 's submission could not be rejected as frivolous.
We therefore acceded to the request of Mr. Desai and called foe the original of exhibit 12(i) from the High Court so that counsel might make submissions to us as regards the identity of the property conveyed.
The document was accordingly obtained 'and translated for the use of the Court and when the appeal was again placed before us Mr. Sen admitted that the property conveyed by exhibit 12(i) was Ashfaq 's 2 as.
13 gundas odd interest in Touza No. 911.
212 Coming now to the merits of the plaintiff 's claim, it is common ground that if the sale by Ashfaq were real and intended to pass title to Pir Baksh, the plaintiffs would be entitled to a decree for a declaration that in addition to the 8 pies share granted to them by the High Court, they would be entitled to a further 2 as. 13 gundas share of Ashfaq in the plaint A Schedule property.
Mr. Sen 's submission, however, was that we should not entertain or give effect to this claim, because several circumstances throw grave suspicion on the reality of the transaction, and that in any event the claim could not be accepted without careful scrutiny of the facts.
Having regard to the definite case raised in the pleadings, we are not disposed to reject the claim merely because the same was not pressed in the courts below.
Besides we cannot ignore the circumstance that the sale deeds exhibit 12(i) and 12(c) on which the claim was based were filed in the trial court, and Pir Baksh was examined to formally prove these deeds as the 31st witness for the plaintiff.
Moreover, even though as regards certain other transfers, the trial Judge recorded findings that they were nominal, there was no such finding as regards the sale by Ashfaq.
In view of these features, we have decided not to reject the claim of the plaintiffs based on this ground.
There are, however, certain features which throw some suspicion on the reality of the transaction which Mr. Sen pressed before us which have led us to desist from ourselves passing a decree for this additional share in their favour.
The circumstances to which Mr. Sen drew our attention were these; (i) though Ashfaq executed the sale deed exhibit 12(i) on April 18, 1931, he figured as the first plaintiff in Suit 58 of 1931 which was filed on 28th November, 1931, without adverting to the sale, a piece of conduct certainly not consistent with the sale being real and intended to pass title; (2) though in the plaint the necessary averments were made regarding their obtaining the share of Ashfaq through Pir Baksh, the claim under this head was not pressed before the trial court; (3) when the plaintiffs preferred an appeal to the High Court from the total dismissal of the suit, they did not raise any specific ground touching their right to this share, nor were any argument 213 addressed to the High Court on this point; and (4) there had been no mutation in the revenue records when this sale was effected and Pir Baksh who was examined as a witness admitted this fact.
These circumstances are certainly capable of explanation, but they show that the claim of the plaintiffs cannot be accepted by us straightaway and a decree passed in their favour.
In these circumstances, we consider that the proper order to pass would be to remit the matter to the trial Court for recording a finding as regards the reality of the sale on the evidence already on the record and to pass an appropriate decree in the suit, that is, if the sale under exhibit 12(i) were held to be real, the plaintiffs would be entitled in addition to the 8 pies share decreed to them by the High Court, to a further 2 as 13 gondas odd share belonging to Ashfaq which they obtained under exhibit 12(c) through Pir Baksh, and in the event of the sale not being held to be real to no more than what the High Court has decreed.
With this modification, the appeal is dismissed with costs.
Appeal dismissed.

summary/full:
The property covered by the Tea Estate was granted by the Government by way of lease in 1898 for 30 years.
In 1913 it was purchased ' by Azam Ali.
When he died in 1917, he left behind 8 sons, 9 daughters and 3 widows.
The name of Ismail, his eldest son, was entered in the official records as next in succession.
Ismail borrowed considerable sums from National Agency Co. Ltd., and for securing the same, deposited the title deeds of the Tea Estate on the footing that he was its full owner.
As the amount under the mortgage was not paid, a suite was filed for realisation of the amount by sale of mortgage property.
193 The suit was decreed and in execution the property was auctioned and sale was confirmed in 1931 in favour of the decree holder who sold the same to Azamabad Tea Estate, the principal respondent in this case.
The heirs of Azam Ali brought suit No. 58 of 1931 to set aside the decree and sale in favour of the National Agency Co. Ltd., on ,various grounds but that suit was dismissed for default.
The suit out of which the present appeal has arisen was filed subsequently.
The plaintiffs appellants who claimed title under purchasers 'for the heirs of Azam Ali challenged the validity of the transactions by which the National Agency Co. Ltd. claimed to have purchased the entire 16 annas interest in the property at the court sale in pursuance ,of a decree obtained by them against Ismail.
The trial Court held that the purchase made by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and hence the venders of the plaintiffs had no title to convey to them any interests in the property.
The High Court in appeal disagreed with this finding but dismissed the appeal on other grounds except to the extent of an 8 pies share in the property.
The appellants came to this Court on a certificate of fitness granted by the High Court.
The points raised before this Court were whether the High Court was right in holding that the present suit was barred by O. IX, r. 9 on the ,ground that when suit No. 58 of 1931 was dismissed in default, no action was taken to get it restored, this was raised by the respondent and whether in any event their claims to the 2 as 13 odd gundas share of Ashfaq, son of Ismail, should not have been decreed.
HELD (i) that the suit was substantially barred by 0.
TX, r. 9.
The essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits the property sought to be recovered in the two suits was the same.
The title of the ,persons from whom the plaintiffs claimed title by purchase was based ,on the same facts.
The additional allegation about possession in October 1934 did not really destroy the basic and substantial identity of the ,causes of action in the two suits.
The ban imposed by 0.
IX, r. 9 does not create merely a personal bar or estoppel against the particular plaintiff suing on the same cause ,of action and does not leave the matter at large for those claiming under him.
The word "plaintiff" in the rule includes his assigns and legal representatives.
(ii)that when the Government granted the lease in 1928, the lease was granted not only in favour of Ismail but also in favour of the ,other co sharers although the name of Ismail alone was mentioned in the lease deed.
The provisions of section 3 of the Crown Grants Act did not affect the beneficial interest in the lease.
Section 41 of the Transfer of Property Act did not help the respondent as there was no evidence to show that Ismail was put forward by 134 159 S.C. 13 194 the other co sharers as the ostensible owner of the property.
The conduct of the co sharers in permitting Ismail to manage the common property did not by itself raise any estoppel precluding them from asserting their rights.
Even a cursory enquiry by the mortgagee would have disclosed that Ismail was not the full owner.
As regards the contention of the appellants that they should have been granted a decree to the extent of 2 As.
13 odd gundas share of Ashfaq in addition to the 8 pies share decreed to them by the High Court, the case was ordered to be remitted to the trial Court for giving its finding regarding the reality of the sale by Ashfaq.
Gopi Ram vs Jagannath Singh, I.L.R. 9 Pat.
447, Mohammad Khalil Khan vs Muhbub Ali Mian, 75 I.A. 121 and Soorijomonee Dasee vs
Suddanund, (1873) 12 Ben.
L.R. 304, referred to.