1. The plaintiff, who now prefers this second appeal, sued to recover a sum of Rs. 3,032-13-3 from the assets of one Srinivasachari, making his widow, the defendant, in the following circumstances. Srinivasachari's father, of the same name, whom we may refer to as Srinivasachari senior, bequeathed the plaint-property to his daughter Kuttiammal under a Will. With a view to dispute this bequest, Srinivasachari junior sold the property to the plaintiff for Rs. 1,000. In 1912 the plaintiff sued for possession making Srinivasachari senior's children as well as certain lessees, parties. Srinivasachari junior raised the defence that the sale-deed was nominal and unsupported by consideration while Kuttiammal, besides advancing this plea (which it was not open to her to do) pleaded the validity of the bequest., The District Munsif found against both these pleas and gave the plaintiff a decree for Srinivasachari junior's half share (there being another brother). Against this decision, Kuttiammal and Pattrachariar appealed, and the appellate Court held that the bequest was good and dismissed the plaintiff's suit.

2. In second appeal this decision was confirmed. The plaintiff then filed the present suit against Srinivasachari junior's widow for damages for breach of warranty of title, including in his claim not only the sale price of Rs. 1,000 and interest, but the costs incurred by him in the previous litigation, the whole claim amounting to the figure given above. The learned Subordinate Judge who tried the suit disallowed the claim to costs and decreed the remainder, holding that the defendant had failed to prove want of consideration for the sale. On appeal, the District Judge disagreed with this finding and dismissed the claim. I can see no reason for interfering with his decision on the question of fact. Substantially the only point pressed in appeal is that the question whether or not the sale was nominal is barred by res judicata; and a preliminary objection is raised that this point cannot be taken in second appeal since it was given up in the lower appellate Court. That this was so, is clear from the District Judge's judgment and the matter is placed beyond doubt by an assurance given by the respondent's vakil, who appeared in that Court. The point formed the subject-matter of the second issue, and the Subordinate Judge found in the negative upon it. In support of his contention that the matter cannot be re-agitated here, the respondent's vakil refers in the first place to two cases decided respectively by the Oudh Judicial Commissioner's Court: Sheo Mangal Singh v. Jagmohan Singh A. I. R. 1925 Oudh 329 and the Nagpur Judicial Commissioner's Court in Narayan v. Beharilal A. I. R. 1926 Nag. 160. In the former case the party acquiesced in first appeal in a refusal by the trial Court to allow an alternative case to be set up. The latter related to some question of rent abandoned by the party in first appeal.

3. In Dhanraj Joharmal v. Soni Bai A. I. R. 1925 P. C. 118 their Lordships of the Privy Council refused to allow a party to bring forward before them objections to a decree, not urged before the lower Courts. It seems to me that whether or not a plea not pressed below should be permitted in second appeal is largely a question of the nature of the plea. In Muhammad Ismail v. Chattar Singh [1881] 4 All. 69 it was held by a Full Bench that the plea of res judicata not only may, but must be entertained in second appeal even when it has not been urged in either of the lower Courts or in the memorandum of appeal; and the reason given is that the objection is one which goes to the very root of the case, and to the jurisdiction of the Court; and if established is an absolute bar to the suit. It is true that that was not a case in which the plea had once been raised and later abandoned. But there is authority in a later Allahabad case, Balkaran Upadhya v. Gaya Din Kalwar [1914] 36 All. 370 for the position that even in such circumstances, the plea of limitation, to which that of res judicata is akin as affecting the Court's jurisdiction, may be so raised. Although therefore, the general rule may be that a plea once abandoned may not be raised, the right view seems to be that such fundamental issues as limitation and res judicata are exceptions to it. I overrule the objection.

4. The learned Subordinate Judge rejected the plea of res judicata on the ground that the question for consideration was not a material issue in the former suit, but only of incidental importance. That is no doubt true as regards one of the defendants Kuttiammal, but I do not think that it applies to the defence of Srinivasachari junior, who executed the sale deed. A reference to his written statement shows that his case was that there was an understanding between the plaintiff and himself that he should sue Kuttiammal for the property, and only upon succeeding in that suit and paying the purchase money should he have anything to do with it and that he had not satisfied either condition. Whatever the merits of this defence the issue was framed and tried whether the sale-deed was not supported by consideration, and was, I think, a material issue. A further point raised here is that the issue was not 'finally decided' but again, as between the plaintiff and Srinivasachari junior, this is clearly not correct, as the District Munsif decreed the claim and the latter preferred no appeal. The circumstances find no parallel in Abdullah Ashgar Ali Khan v. Ganesh Dass [1918] 45 Cal. 442 where the Court of second appeal had before it the issue of fraud but found it unnecessary to decide it. The main argument is based on the fact that the District Munsif who tried the first suit was not competent to decide the second as its value was beyond his pecuniary jurisdiction. It seems inadvisable to go for decisions bearing upon this point further back than to the Privy Council case Gokul Mandar v. Pudmanund Singh [1907] 29 Cal. 707 in which their Lordships observed that under Section 13 (new Section 11) of the Civil Procedure Code a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge, by whom it was made, had jurisdiction to try and decide not only the particular matter in issue, but also the subsequent suit itself, in which the issue is subsequently raised. In this respect, the enactment goes beyond Section 13 of the previous Act (10 of 1877) and also as appears to their Lordships, beyond the law laid down by the Judges in the Duchess of Kingston's case. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of the Judge to disregard or go outside the letter of the enactment according to its true construction.

5. The scope of these observations has been differently interpreted in Calcutta and in Madras. In a Calcutta case, Shibo Raut v. Baban Raut [1908] 35 Cal. 353 the first suit had to do with only a part of the property which was the subject-matter of the second, so that the Court which tried the first was not competent to try the second. It was held that no part of the claim was barred, Mookerjee, J., observing:

If the principle thus interpreted by the Judicial Committe is applied to the case before us there can be no possible controversy that the plea of res judicata cannot be sustained.

6. This view was not adopted by Sadasiva Aiyar, J., in Kunchu Paduval Raman Battatripad [1915] 28 M. L. J. 181 on the ground that their Lordship's observations were only in criticizm of an objection that the finding of a revenue officer in a revenue suit was res judicata in the subsequent suit which was not within the revenue officer's jurisdiction. The learned Judge felt himself therefore at liberty to follow Pathuma v. Salimamma [1885] 8 Mad. 83 in which it was held that the principle of res judicata did apply to that part of the claim which was within the jurisdiction of the Court which tried the first suit. He goes on to quote Sir Arnold White, C. J., in Ranganatham Chetty v. Lakshmiammal [1913] 25 M. L. J. 379 thus:

although taking all the causes of action together, the second suit may be said to be outside the jurisdiction of the original Court, still if the specific question be within the jurisdiction of the original Court and was determined by the original Court, it is no answer to say that the whole suit was beyond the jurisdiction.

7. Applying this test here, it appears to me that it is no answer to say that by the addition of claim to costs the second suit was removed beyond the original Court's jurisdiction, if, by excluding that part from consideration, the rule of res. judicata would apply. Two objections have been urged against this view. One is that the subject-matter of the two suits was different: in the one case a claim to the possession of land; in the other, a claim to damages. But Section 11 of the Code of Civil Procedure only requires that the issue, and not that the subject-matter of the suit, should be common. The other is that the learned Chief Justice's remarks only apply where the causes of action in the second suit are distinct whereas a solo cause of action - the decision of this Court in second appeal in the earlier proceedings--is alleged for the whole claim made in the second suit. I do not think that this can be made a basis for distinction, as it appears in no way to affect the principle underlying the rule. The further suggestion, that here the plaintiff desires to take advantage of the former decision, whereas in the reported cases, it was raised as res judicata against him, appears to afford no bettor ground for discrimination. I hold that the defendant is not barred by res judicata from pleading that the sale was nominal and unsupported by consideration.

8. Upon my intimating to the parties my conclusion on the question of res judicata the respondent's vakil has argued two further points: that the plaintiff's claim was barred (a) by Order 2, Rule 2 of the Civil Procedure Code and (b) by limitation. I am clear that there is no substance in the former of these objections; that is to say, when the plaintiff brought his first suit for possession, he was not bound to ask in the alternative for damages or for the return of his purchase money in case possession could not be given. The rule only requires that every part of the claim which the plaintiff is entitled to make "in respect of the cause of action" should be made. Here, the causes of action for the one remedy and for the other were quite distinct the former being the execution of the sale-deed and the latter a breach of its terms. In this respect the case is distinguishable from the Privy Council case Rangayya Goundan v. Nanjappa Rao [1901] 24 Mad. 491 and congruent with another Privy Council case, originating from Ceylon, Payana Recna Layana Saminathan Chetty v. Pana Lana Palaniappa Chetty [1914] 41 I. A. 142.

9. There remains the question of limitation. The facts to be borne in mind are that the sale-deed was executed on 27th December 1909, and that it is now to be taken that consideration passed, the last instalment being paid before the SubRegistrar at the time of the registration of the sale-deed. On 3rd May 1912 the plaintiff filed his suit for possession. The District Munsif gave him a decree for one half of the property on 16th February 1914; on 11th March 1915, the Subordinate Judge dismissed the whole claim and on 6th February 1917 the High Court confirmed the appellate decree. The plaint in the present suit was presented on 17th November 1919. There are findings of fact that the plaintiff never got possession of the suit property, and that at the time that Srinivasachari junior sold it to him the title vested not in him but in his sister Kuttiammal. There is a great deal of case law upon the question of the starting point for limitation in a suit by a vendee to recover damages from his vendor upon breach of covenant, but when once it is ascertained to what class of such cases, the case in point belongs, many of the decisions become clearly inapplicable. In Subbaroya v. Rajagopala [1914] 38 Mad. 887 Seshagiri Aiyar, J., classified cases of this nature as follows:

(a) where from the inception the vendor has no title to convey and the vendee has net been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale and (c) where though the title is known to be imperfect the contract is in part carried out by giving possession of the properties.

10. Now the present instance clearly falls under class (a) because the vendor was really selling someone else's property, so that the sale was not merely voidable but void and because he gave no possession. In both respects there was a breach of covenant at the date of sale, a breach of convenant for the title implied under Section 55 (2) of the Transfer of Property Act, and a breach of the covenant for quiet enjoyment in the failure to give possession. If in the latter respect it is arguable that the vendor did not at first refuse to give possession, it is clear that as early as 8th August 1912 when he filed his written statement in the suit for possession denying the plaintiff's right to present possession, he so refused and committed a breach of the covenant. In the same case Subbaroya v. Rajagopala [1914] 38 Mad. 887 it was held that in the first class of cases where the sale is ab initio void the starting point for limitation will be the date of the sale, assuming of course that the purchase money was paid not later than that date. The point however did not directly arise for decision since the sale in that case fell under class (b). Direct authority for the proposition is to be found in Kovvuri Basivi Reddi v. Tallapragada Nagamma [1912] 35 Mad. 39 which in this respect is I think still good law although upon the question which article of the limitation act applies it has been dissented from in Arunachala v. Ramasami [1914] 38 Mad. 1171. Another case in which the vendor has no title to convey was Gopal Iyengar v. Mummachi Reddiar A. I. R. 1923 Mad. 392 and although in that case time was held to run from the date of dispossession, the view of Seshagiri Aiyar, J., in Subbaroya v. Rajagopala [1914] 38 Mad. 887 was concurred in that if there had been no possession, it would have run from the date of the sale.

11. The appellant's contention is that time must be deemed to run as regards half the property from the date of the District Munsif's decree disallowing the claim to possession of that half and as regards the other half, from the date of the Subordinate Judge's decree dismissing the whole claim. I do not think there is any authority for this view in the case of a contract ab initio void and under which no possession was given. Cases in which a decree has been taken as the starting point, are as regards title cases of voidable contracts where the decree has had the effect of invalidating a title believed good and as regards pos- session, cases in which possession had been previously enjoyed, and lost under the decree. As instances of the former class may be cited Hanuman Kamat v. Hanuman Mandur [1892] 19 Cal. 123 where the sale was by one coparcener and objected to by the others and Multanmal v. Budhumal A. I. R. 1921 Bom. 252 where possession and an ostensibly good title were given. Macleod, C. J., finding that the case clearly fell under Sehagiri Aiyar, J's class (b) and adding:

It must specially be noted that it is not the case that the seller had no title at all so that it could be said that he was selling nothing and that therefore the transaction was void ab initio; nor was it a case where the purchaser got no possession.

12. Fawcett, J., who concurred puts the point clearly when he says:

I agree, however, that a distinction should be made between cases where from the inception, the vendor had no title to convey and the vendee has not been put in possession of the property and other cases such as the present one where the sale is only voidable on the objection of third parties and possession is taken under the sale.

13. The appellant seeks especially to rely upon the judgment of the Privy Council in Bassu Kuar v. Dhum Singh [1889] 11 All. 47 the facts of which were in brief that a creditor contracted with his debtor to buy certain villages and set off the debt against the purchase money. A dispute arose and the debtor sued the creditor for specific performance of the contract. The claim was at first decreed but in appeal dismissed whereafter the creditor sued upon the debt. The High Court of Allahabad held that there was never any contract of which specific performance could be granted so that the character of the debt was never altered and accordingly that it was barred. Their Lordships of the Privy Council, however, took the view that there had been such contract although the parties were not entirely at one as to its terms, and that up to the date of the decree refusing specific performance, the debtor retained the amount of his debt as of right. He was in a position to allege that the debt had been wiped out by the contract. The facts are comparable therefore not to a contract of sale which was ab initio void and without consideration but to one that became unenforceable and of which the consideration failed at some subsequent date; in other words to Seshagiri Aiyar, J's class (b) or class (c) and not to class (a).

14. Apart from authority the position seems to me clear enough. There is no provision of law according to which a plaintiff who upon failing to obtain one remedy sues for an alternative one is entitled to exclude the time taken up by the former proceedings. It was open to the plaintiff here, if he had any doubt of his vendor's ability or willingness to give him a good title and possession, to ask in the alternative either for possession or for the refund of his purchase money. As I have said, at the latest, as soon as his vendor filed his written statement, he was aware that he repudiated the contract and alleged that title, possession and enjoyment of the property vested in Kuttiammal. A cause of action for damages thus arose and it is difficult to see in what manner limitation for such a suit could be affected by the course of the subsequent litigation.

15. In conclude therefore that the starting point was either the date of the sale deed (27th December 1909) or at latest the date of Srinivasachari's written statement (8th August 1912). It is now, I think settled that Art. 116 applies to the breach of a registered contract of sale. [see Arunachala v. Ramasami [1912] 35 Mad. 39 and Multanmal v. Budhumal A. I. R. 1921 Bom. 252; but even applying that article the suit will be barred.

16. The result accordingly is that the appeal is dismissed with costs. The vakil's fee will be Rs. 150.