- (1.) THIS is an appeal on behalf of the plaintiffs appellants who have filed a suit for the possession of the house property described in the plaint situated in Jaipur City, The plaint filed by the plaintiffs Bhonri Lal and his son Gordhan Lal is somewhat complicated, but the learned counsel for the appellants, C. L. Agrawal, has clarified the position taken up by the plaintiffs on the basis of which they claim the possession of the property in dispute. For the proper understanding of the case following pedigree table is necessary - Nanulal Motilal Bansidhar (Defendant No. 1) Bhonrilal (Plaintiff) Gordhanlal (Plaintiff) Shri Kishen Ram Kishen Motilal had sold the property in dispute to Jagannath respondent by the sale deed dated the 7th August, 1942, for Rs. 860/ -. Thereupon, Bhonrilal and Gordhanlal instituted a suit against Bansidhar and Jagannath in the court of Sub-Judge Jaipur City on 6th October, 1942 praying that the property alienated was the ancestral property in the hands of Motilal and as the alienation was without legal necessity it should be declared null and void. The learned Sub-Judge decided on the 7th May, 1953, that the sum of Rs. 499/- out of the sale consideration was for legal necessity to discharge the mortgage money on the disputed property in favour of the third person and to that extent the sale was valid and for the rest of the amount it was invalid. He passed a decree for declaration that the sale deed is valid to the extent of Rs. 499/-, out of the sum of Rs. 860/- spent in the redumption of the mortgage deed and for the rest of the amount that is, Rs. 361/- it was invalid. After the suit had been decreed, the sale deed was registered on the 9th of December, 1944. Motilal also died on the 2nd of May, 1945. The plaintiffs appellants have brought this suit on the 21st of November, 1945, for the recovery of the entire house property on the following grounds - (1) That the Plaintiffs are entitled to l/3rd of the house property (Motilal and Bansidhar being entitled to the rest 2/3rd) on the payment of l/3rd of the amount for which the sale deed has been held to be valid. (2) That the plaintiffs are entitled to the rest 2/3rd of the house property on the basis of pre-emption as they claimed themselves to be co-sharers in the disputed property.
(2.) AFTER the death ofmotilal,the plaintiffs could have claimed one half of the property, but they claimed only one third. The plaintiffs also claimed the rest2/3rd property under sec. 4 of the Indian Partition Act. But I need not discuss this point as Shri Agrawal has rightly confined his arguments to the above mentioned two grounds for claiming the whole of the disputed property. It may also be noted that in the plaint the plaintiffs have alleged that Motilal and his two sons namely the plaintiffs Bhonrilal and the defendant Bansidhar were separate since 1940. The defendant No. 2 Jagannath raised various pleas in the written statement and those that are material for the purposes of deciding this appeal are as follows - (1) that the suit is barred by the principles contained in Order II, rule 2 of the Civil Procedure Code. (2) that the plaintiffs cannot prefer any claim on the ground of pre-emption as they themselves should be deemed to be the vendors, because Motilal, father of the plaintiffs Bansidhar and grand father of the plaintiff Gordhanlal, was the vendor of the house property on behalf of the joint family. The suit was instituted on the 8th of September, 1945, in the court of Munsif East, Jaipur City, who decreed the claim of the plaintiffs for possession of the disputed property to the extent of 361/2580 (1/3x361/860) On appeal by the respondent Jagannath, the aforesaid decree of the munsif was reversed and it was held that the suit was barred under Order II, rule 2 of the Civil Procedure Code. Hence this appeal on behalf of Bhonrilal and Gordhan. Bhonrilal died during the pendency of this appeal and his two other sons Shri kishen and Ram Kishore nave also been brought on the record. Learned advocate on behalf of the appellant has argued that the learned District Judge is wrong in dismissing the suit under Order II rule 2 of the Civil Procedure Code. The contention raised by the learned counsel for the respondent in support of the view that the learned District Judge has taken is that at the time of the filing of the previous suit on the 17th of May, 1943, in the court of Sub-Judge, Jaipur City, the plaintiffs could claim partition of the disputed property and as they omitted to sue in respect thereof, they cannot be permitted to sue now for the relief. It is rather unfortunate that the plaint and the written statement filed by the parties in the previous suit are not placed on record. The only document on record is Ex, 2, the judgment of the learned Sub-Judge dated the 17th of May, 1943. From the judgment it appears that the plaintiffs filed that suit treating the property as ancestral property and further alleging that the sale by Motilal to the respondent Jagannath was without legal necessity. Motilal in that suit, as it appears from the judgment, raised the p:ea that the sale was for family necessity. The court held that there was family necessity to extent of Rs. 499/- as that sum was required to pay of the antecedent mortgage loan taken by Moti Lal and for the rest of the amount the court found that there was no legal necessity for the transfer of the property. Thus, from what is contained in the judgment of the learned Sub-Judge dated 17th May,1943, (Ex. 2) it is clear that Bhonrilal challenged the alienation made by the father on the ground of want of legal necessity treating the property as the property of the joint family. In the absence of any other document on record, it may be taken that this was the substance of the pleadings of the parlies. Under Hindu law, a son has a right to challenge the alienation made by his father without legal necessity, basing his claim on the ground that the property is ancestral and he is member of the joint Hindu family with his father. This is a right recognised by Hindu law which is different from the right available to a son who claims partition in the ancestral property after he has evinced his intention to separate The learned District Judge has given no reasons for his holding that the present suit is barred under Order 11, rule2 of the Civil Procedure Code. Order 11, rule 2 of the Civil Procedure Code has no application unless the plaintiffs omit to sue in respect of any portion of their claim which they are entitled to make in respect of the cause of action. If the cause of action in the subsequent suit is different from that in the first suit, the subsequent suit is not barred. Learn-ed counsel for the respondent has argued that in this case the plaintiffs have alleged in their plaint that they were separate from their father Motilal since 1914, but the finding of the trial court is that this statement is wrong and Bhonrilal was a member of the joint Hindu family with his father Motilal when the previous suit was instituted. This finding is also implicated in the judgment of the learned Sub-Judge, Jaipur City dated the 7th of May, 1943. Moreover, the correct approach to the application of Order 11, rule 2 of the C. P. C. is first to look to the plaint filed in the previous suit and together from that what is the cause of action alleged by the plaintiffs for the filing of the suit in that plaint. Cause of action means, under O. II, r. 2 of the C. P. C. , the essential facts constituting the right to sue. Thus, it is necessary to analyse to what reliefs the plaintiffs were entitled under law on the basis of those facts. If it turns out that the relief which the plaintiffs are seeking in the second suit could have been claimed by them on the allegations made by them in their first suit, they shall be precluded from claiming that relief in their second suit. This rule is a rule of procedure aimed against the multiplicity of the proceedings in a court of law. Their Lordships for the Privy Council have laid down the principles for the application of O. II r. 2 in Mohammad Khalid Khan vs. Mahbub Ali Mian, (l) after taking into consideration all the important authorities on the subject in the following observations - "the principles laid down in the cases thus Far discussed may be thus summarised - (1) The correct test in cases falling under O. 2, r. 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. ' (Moonshee Buzloor Ruheem vs. Shumsun-nissa Begum, 1867-11 M. I. A. 551 : 2 Sar. 259 P. C. (Supra ). (2) 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. Read vs. Brown (1889-22 Q. B. D. 128 : 58 L. J. Q B. 120) (Supra ). (3) If the evidence to support the two claims is different; then the causes of action are also different. Brunsden vs. Humphrey, (1884-14 Q. B. D. 141: 53 L. J. Q B. 476) (Supra ). (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brundsden vs. Humphrey, (1884-14 Q. B. D. 141 : 53 L. J. Q B. 476) (Supra ). (5) The cause of action has no relation what-ever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers. . . . . to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chandkour vs. Pertap Singh, (151. A' 156: 16 Cal. 98 P. C.) (Supra ). This observation was made by Lord Watson in a case under sec. 43 of the Act of 1882 (cor-responding to O. 2, R. 2),where plaintiff made various claims in the same suit. As already observed the right of the son to challenge the alienation made by the father is dependant on his alleging that he constitutes the joint family with his father. It is one of the essential facts which is the foundation of his claim. In that suit is not necessary for him to claim the partition of the joint family property. Even if he is successful in that suit there is no disruption of the joint family. But in a suit for partition of the joint family property the son must show his intention to separate and there is disruption of joint family from that date. The two causes of action are different. R. 2 of O. 2 has no application in such cases. I, therefore, hold that the learned District Judge was wrong in holding that the present suit is barred under O. 2, R. 2. Now, it remains to be examined whether the plaintiffs are entitled to claim the whole of the disputed property on the basis of the law of pre-emption. It may be taken to be conceded that a co-sharer in the property sold is entitled to preempt the share of the property sold under the customary law prevalent in Jaipur City. It may also be taken to be settled that the vendor cannot be a pre-emptor, The right of preemption is granted to a third person and not to the person who is party to the sale. A vendor cannot turn round and say that he is entitled to recover back the property sold by him. This being the position what is to be decided is whether a coparcener under Hindu law is not a vendor, when the joint family property is sold by the manager of the joint family. The learned counsel of the appellant has cited the case of Hiwanchal Singh vs. Ajodhya Singh, (2) (F. B.) in support of the proposition that it is open to a member of a joint Hindu family to acquire by pre-emption a portion of the property belonging to the joint family of which he happens to be a member, when the said property is sold by the manager of the family. The case was under the Oudh Laws Act (18 of 1876 ). Sec. 9 of that Act granted right to any person on his fulfilling the requirements of that section. It was observed as follows in that case by Wazir Hasan, Ag. C J. (later on C. J.) - "it would thus appear that on the terms of the enactment just now mentioned a member of a joint Hindu family when he is possessed of the status of a co-sharer on the date of the sale on the basis of his interest in immovable property out side the subject matter of the sale is entitled to bring a suit for pre-emption in respect of that sale by reason of the breach of the conditions which the law imposes on the intending vendor and on the fulfilment of which alone the co-sharer's right to enforce his title to preempt is excluded. This to my mind is an irresistible conclusion which flows from the interpretation of the clear provisions of law. But it is argued that there is a general principle of the Hindu Law which destroys the right of preemption existing on the terms of the statute in favour of a member of a joint Hindu family where the sale intended to be pre-empted is made by another member of the same family. The argument is that when one member of a joint Hindu family selfs property to a stranger another member of the same family must be treated as also a vendor. In support of this appeal reference is made to the juristic conception of a joint Hindu family and the relations in which the members of the family stand to each other and the case of Himmat Bahadur vs. Bhawani Kunwar (5 A L. J. 339) is cited. I accept the analysis of the concept of a joint Hindu family so elaborately made in that judgment but the conclusion which it is sought to be drawn from that analysis does not appear to me to follow, nor can it override the statutory law to which reference has already been made. " In my humble opinion. the manager is representing the joint Hindu family including himself in such a sale. He has sold the property in a representative capacity and he alone is not the vendor, but all the members constituting the joint Hindu family of which he is the manager are vendors in the eye of law and as vendors they are not entitled to be preemptors. A manager under the Hindu law has the power of making contracts, giving receipts, compromising or discharging claims on behalf of the manager to joint family. The power of the manager to alienate the joint family property for legal necessity is by now well settled In Sahu Ram Chandra vs. Bhup Singh (3), dealing with the case of father their Lordships of Privy Council have observed as follows - "the law of the Mitakshara has given to the father in his capacity of manager and head of family certain powers with reference to the joint family property. The general principle in regard to that matter is that he is at liberty to effect or to dispose of the joint property in respect of purposes denominated as necessary purposes. The principle in regard to this is analogous to that of the power Vested in the head of a religious endowment or much, or of the guardian of an infant family. In all of the cases where it can be established that the estate itself that is under administration demanded, or the family interests justified, the expenditure, then those entitled to the estate are bound by transaction. It is not accurate to describe this as either inconsistent with or an exception to the fundamental role of the Mitakshara, for where estate or family necessity exists, that necessity rests upon the coparceners as a whole, and it is proper to imply a consent of all of them to that act of the one which such necessity has demanded " From the observations of their Lordships of the Privy Council, it is obvious that the father in alienating the property under the condition permitted under law is acting on behalf of the members of the joint Hindu family and it shall be taken that there is implied consent of all such members to the alienation made by the father. Even though in fact all other members of the joint Hindu family may have views different from that of the father with regard to the alienation, it should be taken that the father was acting with the assent of all the coparceners and is representing them in the transaction. In Khuda Baksh vs. Lahorimal (4), a Division Bench of the Lahore High Court dissented from the view expressed by the Full Bench of the Oudh Chief Court in the case of Hiwanchal Singh vs. Ajodhya Singh (F. B.) (2) The view that I have taken is also the view as expressed in Pratap Narain Singh vs. Shiam Lall (5 ). Under these circumstances the plaintiffs are not entitled to claim any portion of the disputed property basing their claim on the custom of preemption as they must be deemed to be the vendors under the sale deed executed by their father Motilal in favour of Jagannath respondent for the property for which the sale has been held valid. The result is that the judgment and decree of the learned District dated the 26th May, 1942 is set aside and the judgment and decree of the court is restored The parties shall bear their own costs in all the courts in proportion to their success. . ;