- Bookmark
- Share
- CaseIQ
C. Abdul Jabbar Sahib Died And Ors. v. C. Abdul Hafiz Sahib And Ors.
Structured Summary of the Opinion
Factual and Procedural Background
The appeals arise from a dispute over shares in properties that belonged to Kurshidunnissa Begum. The first appellant (Abdul Jabbar Sahib) died pending these appeals and appellants 2 to 8 are his legal representatives. Respondents 1 to 3 are brothers of the first appellant: Abdul Hafiz Sahib (respondent 1), Abdul Wahid Sahib (respondent 2) and Abdul Majid Sahib (respondent 3).
The opinion records that certain 'A' Schedule properties were allotted to the share of Kurshidunnissa Begum in an earlier partition suit. It is recorded that respondents 2 and 3 left the family around 1958 and had not been heard of for many years thereafter. The opinion contains two different recorded dates for Kurshidunnissa Begum's death: paragraph 1 records her death as 18.2.1971, while paragraph 5 records the date as 8.2.1971. Both dates appear in the text of the opinion.
The first appellant instituted O.S. No. 260 of 1973 against the present first respondent and the two other brothers seeking partition and separate possession of his 1/4 share in the properties of their sister. In that suit he alleged that the three brothers were the only heirs, that respondents 2 and 3 had left the family about 1958 and their whereabouts were unknown, and that each brother was entitled to a 1/4 share.
The first respondent did not dispute that respondents 2 and 3 had not been heard of and were treated as dead. O.S. No. 260 of 1973 ended in a compromise; Ex.A-1 is a certified copy of the preliminary decree dated 19.4.1977 and Ex.A-2 is a certified copy of the final decree dated 31.1.1979 showing that, under the compromise, the present 'B' Schedule properties were allotted to the first appellant in full satisfaction of his claim in that suit. The 'C' Schedule properties remained with the first respondent and are the subject matter of the present appeals.
The first appellant then instituted O.S. Nos. 878 and 879 of 1979, claiming a moiety in the shares of Abdul Wahid Sahib and Abdul Majid Sahib (respondents 2 and 3) in the property of their sister. Respondents 4 to 6 are purchasers of item 1 of the 'C' Schedule from the first respondent, pending the suit.
Legal Issues Presented
- Whether the suits (O.S. Nos. 878 and 879 of 1979) are barred by Order 2, Rule 2 of the Code of Civil Procedure because the plaintiff in the earlier suit (O.S. No. 260 of 1973) had restricted his claim and accepted a compromise.
- Whether the first appellant has discharged the burden to prove that the two missing brothers (respondents 2 and 3) were alive when succession to Kurshidunnissa Begum's estate arose (i.e., whether they succeeded to her estate), particularly in light of the presumptions under Sections 107 and 108 of the Indian Evidence Act.
Arguments of the Parties
Appellant's Arguments
- Learned counsel for the appellants submitted that, although the trial court found in favour of the appellants on other issues, it negatived the claim only on the ground of non-maintainability under Order 2, Rule 2, C.P.C.
- Counsel argued that the trial court erred in presuming the two missing brothers were dead when O.S. No. 260 of 1973 was instituted, and relied on Section 107 of the Evidence Act to contend that the presumption of life arises only when inheritance to the estate of the missing brothers is in dispute.
- It was argued that the issues in O.S. No. 260 of 1973 concerned inheritance from the sister (Kurshidunnissa Begum) and not inheritance to the missing brothers' own estates, so the cause of action in the earlier suit differed from that in the later suits; therefore Order 2, Rule 2 C.P.C. should not bar the later proceedings.
- Counsel relied on authorities (including Privy Council decisions and other cases cited in the opinion) to submit that Order 2, Rule 2 applies only where the later claim is founded on the same cause of action as the earlier suit and the earlier cause enabled the plaintiff to claim the larger relief sought later.
Respondent's Arguments
- The first respondent resisted the later suits on the ground that the first appellant, being aware of the disappearance of respondents 2 and 3 about 25 years prior to institution of O.S. No. 260 of 1973, effectively became entitled to a half share in the 'A' Schedule properties but restricted his claim in that suit to 1/4, and is therefore barred by Order 2, Rule 2, C.P.C. from agitating the omitted right again.
- The respondent pointed out that the first appellant did not amend O.S. No. 260 to include the whole relief but instead entered into a compromise taking specified properties in full satisfaction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Md. Hafiz v. Mirza Md. Zakariya (multiple citations including 42 M.L.J. 248; I.L.R. 44 All. 121; A.I.R. 1922 P.C. 23) | The Privy Council's articulation that "cause of action" is the occasion and foundation of the suit; if that cause enables a plaintiff to seek larger relief than he limits his claim to, he cannot later seek the balance by independent proceedings (Order 2, Rule 2 principle). | The appellants relied on this authority to argue that the later suits are founded on a different cause of action and therefore not barred; the Court recorded the principle but did not rest its decision solely on Order 2, Rule 2 because it found failure of proof on another basis. |
| Md. Khalil Khan v. Mahabub Ali Mian, A.I.R. 1949 P.C. 78 | Stated the correct test under Order 2, Rule 2 — whether the claim in the new suit is founded upon a cause of action distinct from that of the former suit; cause of action includes every fact necessary for the plaintiff to prove. | Relied upon by appellants' counsel to support the submission that the subsequent suits raised distinct causes of action; the Court noted the principle but proceeded to decide the matter on the appellant's failure to prove the missing brothers were alive and on the earlier compromise. |
| Sidramappa v. Raja Shetty | Explains that Order 2, Rule 2 requires a suit to include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action; defines "cause of action" as the cause for which the suit was brought. | Used by appellants to contend that the later relief could not have been asked in the earlier suit; the Court noted the authority but ultimately did not decide the case on this issue. |
| Moolla Cassim v. Moolla Abdul Rahim, I.L.R. 33 Cal. 173 (P.C.) | Held that when a predecessor (e.g., the father) disappeared and was not heard of, the onus is on the claimant to prove that the missing person survived a referenced deceased (e.g., the grandfather); failing such proof the claimant's share is lost to nearer heirs. | The Court applied this principle directly: it held that the appellant bore the onus of proving that the two missing brothers survived Kurshidunnissa Begum and, since he failed to prove this, his claim could not succeed. |
Court's Reasoning and Analysis
The Court framed the decisive legal and factual question as whether the two missing brothers (respondents 2 and 3) were alive when succession to Kurshidunnissa Begum's estate arose (the opinion records the date of her death both as 18.2.1971 and 8.2.1971 in different paragraphs). The Court explained that the first appellant could only succeed in claiming shares in the missing brothers' portions if he proved that those brothers had in fact succeeded to the sister's estate on her death.
The Court relied on the record of pleadings and evidence in earlier proceedings (Ex.B-1, Ex.B-2 and Ex.B-5) showing that the first appellant had himself pleaded in O.S. No. 260 of 1973 that the two brothers had left the family about 25 years prior to the institution of that suit (approximately 1958) and that their whereabouts were unknown. The first respondent's written statement in that suit conceded that position. The first appellant's oral evidence (as P.W.1) likewise referred to the brothers being unheard of since the early-to-mid 1960s.
Applying the law on burden of proof and the presumptions in the Evidence Act, the Court analyzed Sections 107 and 108. It summarized that Section 107 provides a presumption of continuity of life for thirty years where a person was shown to be alive within that period, and Section 108 contains a presumption of death when a person has not been heard of for seven years by those who would naturally have heard of him. The Court stressed that these presumptions operate after a suit is instituted and that the exact time of death is a matter of evidence and not fixed by presumption alone.
The Court concluded that the presumptions under Sections 107 and 108 did not assist the appellant because the appellant had, both in pleading and in evidence, stated that the two brothers had been missing and not heard of long before the sister's death. Hence the burden lay on the appellant to prove that the brothers were alive when succession opened. The Court found no evidence that the appellant discharged that burden.
The Court also relied on the principle in Moolla Cassim v. Moolla Abdul Rahim that where a claimant's ancestor (or person through whom he would claim) disappeared before the relevant death, the claimant must prove survival; failing that, nearer heirs take the share. Applying that precedent, the Court concluded that the appellant failed to prove the missing brothers had survived Kurshidunnissa Begum.
Finally, the Court observed that the first appellant had earlier accepted a compromise in O.S. No. 260 of 1973 by taking specified properties in full satisfaction of his claim to the sister's estate (Ex.A-2). Given the appellant's failure of proof on the critical factual issue and the prior compromise, the Court did not find it necessary to decide the contested question whether the suits were barred under Order 2, Rule 2, C.P.C.
Holding and Implications
Holding: The Court's final decision is that APPEALS DISMISSED. The opinion records the result concisely: "In the result, the appeals are dismissed. No costs."
Implications:
- Direct effect on the parties: The first appellant's claims to a moiety in the shares of the two missing brothers in the 'C' Schedule properties fail because he did not prove that those brothers were alive and succeeded to their sister's estate when succession arose. The earlier compromise in O.S. No. 260 of 1973 (by which the first appellant accepted specific properties in full satisfaction) further undercuts his present claim.
- No broader legal precedent announced: The Court expressly declined to decide whether Order 2, Rule 2, C.P.C. barred the later suits because the decision rested on failure of proof regarding the survival of the missing brothers and on the prior compromise. The opinion does not purport to lay down any new law beyond its application of existing presumptions and authorities to the facts before it.
Note: This summary is strictly confined to the facts, arguments, authorities and reasoning as they appear in the provided opinion. It does not add factual detail or inferences beyond the text.
1. 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.
2. 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.
3. 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.
4. 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 under Section 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, 42 M.L.J. 248 : I.L.R. 44 All. 121 : L.R. 49 I.A. 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: A.I.R. 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 Md. Khalil Khan v. Mahabub Ali Mian A.I.R. 1949 P.C. 78, 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 v. Raja Shetty , 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.
5. 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.
6. 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 under Section 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.
7. In Moolla Cassim v. Moolla Abdul Rahim, I.L.R. 33 Cal. 173 (P.C.), 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.
8. 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.
9. In the result, the appeals are dismissed. No costs.
Alert