C. Abdul Jabbar Sahib (died) and Others vs C. Abdul Hafiz Sahib and Others

Thangamani, J.—One Abdul Jabbar Sahib is the first appellant in both the appeals. Since he died pending appeals his legal representatives

appellants 2 to 8 were brought on record. Respondents 1 to 3 Abdul Hafiz Sahib, Abdul Wahid Sahib and Abdul Majid Sahib are the brothers of

the first appellant. Plaint ''A'' Schedule properties were allotted to the share of their sister Kurshidunnissa Begum in an earlier partition suit.

Respondents 2 and 3 Abdul Wahid Sahib and Abdul Majid Sahib left the family in or about 1958 and they had not been heard of for all these

years. Kurshidunnissa Begum died intestate on 18.2.1971. The first appellant herein instituted O.S. No. 260 of 1973 against the present first

respondent Abdul Hafiz Sahib and the other two brothers for partition and separate possession of his 1/4 share in the properties left by their sister.

In that plaint he claimed that the three brothers are the only heirs of Kurshidunnissa Begum, that respondents 2 and 3 had left the family in or about

1958, that their whereabouts were not known and that each brother was entitled to a 1/4 share in the properties. The first respondent did not

dispute the fact that the other two brothers were not heard of for a long number of years and that they have been treated as dead. The suit ended

in a compromise ordering partition and separate possession of the first appellant''s 1/4 share in the properties. Ex.A-1 is the certified copy of the

preliminary decree dated 19.4.1977 in that suit. Evidently respondents 2 and 3 were ex parte therein. Ex. A-2 the certified copy of the final decree

dated 31.1.1979 discloses that as per the terms of the compromise entered into between the first appellant and the first respondent herein the

present ''B'' Schedule properties were allotted to the share of the first appellant in full quit of his claim in that suit The ''C'' Schedule properties, the

subject matters of these appeals are the remaining properties of Kurshidunnissa Begum with the first respondent. The first appellant instituted O.S.

Nos. 878 and 879 of 1979 claiming a moiety in the shares of Abdul Wahid Sahib and Abdul Majid Sahib in the property of their sister

Kurshidunnissa Begum. Respondents 4 to 6 are purchasers of item 1 of ''C'' schedule from the first respondent pending suit.

The first respondent resisted the suit mainly on the ground that the first appellant who was aware of the disappearance of the two brothers about

25 years prior to his institution of O.S. No. 260 of 1973 and thereby who became entitled to a half share in the plaint ''A'' schedule properties

having restricted his claim to an 1/4th share therein is barred under Order 2, Rule 2, C.P.C. from agitating his right once again. Though his attention

was drawn to this aspect, he did not choose to amend the plaint in that suit so as to include the whole of the relief. Instead, he entered into a

compromise agreeing to take some specified properties in full satisfaction of his claim to succeed to his share in the sister''s properties.

The trial Court agreed with the contention of the first respondent that the suit was barred under Order 2, Rule 2, C.P.C., and accordingly

dismissed the actions without costs. And these appeals are directed against the said decision.

Miss. O.K. Sridevi, learned Counsel for the appellants submitted that while all other issues were found in her favour by the trial court her claim

had been negatived only on the ground that the suits are not maintainable under Order 2, Rule 2, C.P.C. The trial Court took that view on the basis

that the two brothers respondents 2 and 3 should have been presumed to be dead when O.S. No. 260 of 1973 came to be instituted. But the

presumption u/s 107 of the Evidence Act arises only when the inherintance to the estate of the two missing brothers is in dispute. The parties did

not join issues in O.S. No. 260 of 1973, regarding the properties of respondents 2 and 3. What was in controversy in that suit was in respect of

the inheritance from the sister. Since the causes of action in the earlier and later actions are different, there is no scope for invoking the provision of

Order 2, Rule 2, C.P.C. In Md. Hafiz v. Mirza Md. Zakariya, (1922) 42 M.L.J. 248 : ILR (1922) All. 121 : L.R. 49 IndAp 9:20 A.L.J. 17:26

C.W.N. 297:35 C.L.J. 126:15 L.W. 377: 65 I.C. 79:1922 M.W.N. 89; 30 M.L.T. 224: AIR 1922 P.C. 23, the Privy Council laid down that the

cause of action referred to in the rule is the cause of action which gives occasion to, and forms the foundation of the suit, and if that cause enables a

man to seek for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent

proceedings. Again in AIR 1949 78 (Privy Council) the Privy Council has pointed out that the correct test in cases falling under Order 2, Rule 2 is

whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. The cause

of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. In Sidramappa

Vs. Rajashetty and Others, , it is held that the requirement of Order 2, Rule 2, is that every suit should include the whole of the claim which the

plaintiff is entitled to make in respect of a cause of action. ''Cause of action'' means the ''cause of action for which the suit was brought''. Cause of

action is a cause of action which gives an occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a

larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Where

the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the

plaintiff could not have claimed the relief which, he sought in the subsequent suit, the plaintiff''s subsequent suit is not barred by Order 2, Rule 2.

On the basis of the above decisions learned Counsel for the appellants submitted that since the relief claimed in the present actions is not one which

could have been asked for in the earlier suit, there is no bar under Order 2, Rule 2, C.P.C.

However, we have to bear in mind that in the two present suits the first appellant has asked for his share in the properties of his two missing

brothers who inherited the same from their sister Kurshidunnissa Begum. So he can succeed if only he is able to establish that the two brothers

succeeded to the estate of Kurshidunnissa Begum on her death on 8.2.1971. In this connection, it is pertinent to note that as per Ex.B-1 the first

appellant himself had taken the stand in O.S.N. 260 of 1973 that the two missing brothers had left the family about 25 years prior to the institution

of that suit and since then their whereabouts were not known. This fact is conceded by the first respondent herein also in Ex.B-2 the certified copy

of his written statement in that suit. So it is common ground that respondents 2 and 3 herein left the family in or about 1958 and they were not

heard of when Kurshidunnissa Begum died on 8.2.1971. Now the burden is on the first appellant to plead and prove that his other two brothers

were alive and succeeded to the estate of their sister along with him and the first respondent. In other words the real controversy is whether

present respondents 2 and 3 were alive on 8.2.1971. Besides his abovesaid averment in his plaint in O.S. No. 260 of 1973 the first appellant as

P.W.1 states in his evidence that the second respondent had left the family 20 years and the third respondent left the family 15 years prior to his

deposing in Court on 3.8.1982. According to him, the brothers were not heard of since 1962 and 1967. From these years onwards there is no

information about them. Their relatives also do not know about their whereabouts. In O.S. No. 260 of 1973 these brothers did not claim their

shares in the properties of their sister. Besides as per Ex.B-5 in his affidavit in I.A. No. 2560 of 1971 in O.P. No. 256 of 1956 the first appellant

himself had sworn that his sister died leaving no issue and her husband and parents died long ago and that his elder brother Abdul Hafiz and himself

alone had become the heirs and residuaries and they are in possession of all her properties. These factors would indicate that admittedly the two

missing brothers were treated as dead even before the death of Kurshidunnissa Begum. While so, it is not open to the first appellant now to say

that the missing brothers were alive when succession opened to the estate of his sister on 8.2.1971. Even if such a plea is available, the burden is

on the first appellant to prove it as a fact by evidence.

Under Sections 107 and 108 of the Evidence Act when the question is whether a man is alive or dead and it is shown that he was alive within

thirty years, the burden of proving that he is dead is on the person who affirms it. Provided that when the question is whether a man is alive or

dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, if he is alive the burden of

proving that he is alive is shifted to the person who affirms it. The presumptions under these provisions cannot help the appellant in any manner.

Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death Both the presumptions

under Sections 107 and 108, come into play after a suit is instituted. While initially the presumption of life extends over the whole period of thirty

years, when it is displaced, the presumption of death extends over the whole period when the person is ''unheard of. There is no warrant on the

language of Section 108 for the view that if the exact date of death is not proved, the earliest dates on which the death could be presumed is the

date on which the suit is filed. The exact time of death is not a matter of presumption but is a matter of evidence, the onus of proof being cast not

u/s 108, but under the general principle of burden of proof. Here the positive plea and evidence of the first appellant in the earlier proceedings

were that his brothers were not heard of 15 to 20 years prior to the demise of their sister.

In Moolla Cassim v. Moolla Abdul Rahim, ILR 33 Cal. 173, the appellant through his lather, one of the children of a Mohomedan, claimed a

share in the property of his grand father, who died in 1884. It appeared that the father disappeared in 1870 and had not since been heard of. Held,

that the onus was on the appellant to prove that his father survived the grandfather, failing which proof the share he claimed would go to the

brothers and sisters of the missing man as preferable heirs to the appellant. In the present action also the appellant was not able to prove by any

evidence that his missing brothers had survived his deceased sister. Instead he himself had positively pleaded that the two brothers were missing

and riot heard of long prior to the demise of Kurshidunnissa Begum.

Evidently, the first appellant has failed to establish that when succession opened to the estate of Kurshidunnissa Begum on her death on

8.2.1971 his two other brothers were alive and succeeded to their respective shares. While so, his claiming a right in those properties does not at

all arise. Further, as per the compromise memo in O.S. No. 260 of 1973 he opted to be content with some specific properties in full quit of his

claim to the estate of his sister then remaining with the first respondent. And in this view of the matter we do not feel constrained to consider the

question whether the suit is barred under Order 2, Rule 2, C.P.C.

In the result, the appeals are dismissed. No costs.