1. These two appeals have arisen out of a preliminary decree in a suit for partition. The facts of these cases are very complicated and the calculation of shares which is involved in the claims put forward by the respective parties is a matter about which no very clear idea can be had unless the various documents upon which the Court below has relied are brought before us. For the purposes of the appeals however it will not be necessary to go very much into details. The facts, so far as they have got to be recited for the purposes of appreciating the contentions that have been put forward before us, are the following: One Mariam Bibi was owner of a 4½ annas share in an Estate Touzi No. 9954 of the Dacca Collectorate. She had three nephews, Golam Hossain, Delwar Ali and Enayet Hossain. Enayet died leaving as his heir his daughters' son, one Syed Bakhar. In 1269, Mariam Bibi executed a wakf deed in respect of the said 4½ annas share of Estate Touzi No. 9954 and also of some other properties, appointing her nephew Golam Hossain as Mutwalli. The Mutwalli came into possession and got his name registered in the Collectorate as such and thereupon the said 4½ annas share was carved out and formed into a new estate, No. 13173, named Khalil Bahaman. In 1312, Golam Hossain gave a patni settlement to one Raj Chandra Karmakar of the said estate and also of some other properties. Settlement was taken by the latter for himself and on behalf of his brothers and nephews. In 1271, Mariam died. Delwar Ali admitted the patni, but Syed Bakhar did not do so. In Sraban 1313, Golam Hossain and Delwar Ali sold ⅔rds of the Estate to one Moulvi Alimaddin, purporting to ignore the wakf and presumably on the footing that they were the heirs of Mariam Bibi to the extent of ⅔rds share. In Chaitra 1313, Raj Chandra sold a 1 anna share of the patni to one Kalimuddi alias Kala Meah. This 1 anna share eventually passed to defendants 85 to 105 of the present suit.

2. In 1315 Raj Chandra and his brothers and nephews sold an 8 annas share of the patni to Moulvi Alimuddin in the benami of one Akshoy Kumar Das. The next year, Syed Bakhar, who claimed to have inherited the ⅓rd share of the estate left by Mariam Bibi, granted a patni of that share to Moulvi Alimuddin. The position therefore at that time was that in Estate No. 13173, ⅔rds share belonged to Alimuddin and ⅓rd to Syed Bakhar; that in Patni Raj Chandra 1 anna share came to belong to Kalimuddin and 8 annas share to Alimuddin; and that Raj Chandra and his brothers and nephews were left with the remaining 7 annas share. Then came a fresh chapter of events. Alimuddin sold the 4 annas of the Taluk and of Putni Alimuddin to one Amanulla Bhuiya and 2 annas thereof to one Lalit Mohan Roy. Alimuddin, Amanulla and Lalit on the strength of this purchase applied for registration of names, but their applications were opposed by one Syed Mozuffar Ali who asserted that under the wakf created by Mariam Bibi he was the Mutwalli. Prayer for registration of names was refused. On that Alimuddin, Amanulla and Lalit instituted a Suit No. 27 of 1921 for getting the wakf declared invalid and for declaration of their title by purchase. This suit was decreed, the title of the said plaintiffs was declared and thereafter Estate No. 13173 being partitioned, three separate estates were formed: the original Estate No. 13173 now consisting of 6 annas odd share remained with Alimuddin; Estate No. 15784 consisting of 2 annas odd share with Amanulla and 1 anna odd share with Lalit Mohan Roy; and Estate No. 15783 consisted of ⅓rd share of the original Estate of Syed Bakhar. Under the first two named estates remained the Putni Raj Chandra, and under the last one Putni Alimuddin.

3. We shall now follow the fortunes of the two Putnis, Putni Raj Chandra and Putni Alimuddin. It has been already stated that of Putni Raj Chandra, 7 annas only remained with Raj Chandra and his brothers and nephews. In 1319, Raj Chandra obtained a release from some of his co-sharers and in 1320 he created a Dar Putni of 4 annas share of the putni interest in favour of plaintiffs 1 and 2, defendants 116 to 118, and the predecessors-in-interest of defendants 106 to 115. In 1322, Raj Chandra, although he and his cosharers had no more than 7 annas share in the putni, purported to sell an 8 annas share of the putni to one Nawab Yusuf who in 1323 transferred the interest acquired by him in that sale to one Based, son of Alimuddin. In 1321, Alimuddin and Based sold their entire interest in the taluk and in the putni to one Ram Kumar Nath and in that year the two nephews of Raj Chandra sold the 2 annas odd share of the putni to one Syedulla, plaintiff 3 in this suit.

4. Litigation followed. Syedulla instituted a suit against Ram Kumar Nath and others and the result of this suit was that the share of 8 annas in Putni Raj Chandra, which Nawab Yusuf had purchased, was reduced by 1 anna namely the share sold by Raj Chandra to Kalimuddin, and also by 2 annas odd share which had been conveyed by Raj Chandra's two nephews to plaintiff 3; that is, ultimately a 4 annas odd share was left to Nawab Yusuf; and Ram Kumar Nath by his purchase from Nawab Yusuf got that share. Ram Kumar Nath however acquired a further share by purchase from Alimuddin and Based. As regards Putni Alimuddin by purchase from Alimuddin and Based, Earn Kumar had acquired a 10 annas share, that is, after deduction of 4 annas sold to Amanulla and 2 annas sold to Lalit Kumar Roy. By subsequent transfers, the details of which it is not possible nor necessary to go into, plaintiffs 1 to 3 on the one hand, and defendants 1 to 84 on the other, acquired different interests in the two putnis and in the Dar Putni which Raj Chandra had created. Defendants 85 to 105 are owners of the 1 anna share of Putni Raj Chandra which Kalimuddin had acquired.

5. As the result of these transactions, plaintiffs 1 to 3 claimed to have acquired an 11 annas odd share in Putni Raj Chandra, an 8 annas odd share in Putni Alimuddin, and a 1 anna 12 gondas share in the Dar Putni. Their case is that as amongst themselves they are each entitled to a ⅓rd share out of the shares specified above, and the present suit they brought for partition in respect of the properties on the basis of the aforesaid shares. It may be stated here that in the suit, as originally laid, a partition in respect of the estate also was asked for, but this prayer was subsequently given up and the suit as tried was one for partition in respect of the putnis and the Dar Putnis. The Subordinate Judge has made a preliminary decree on the basis of the claim which the plaintiffs put forward and which, in whose opinion succeeded. Prom this decree, two appeals have been preferred, Appeal No. 158 by defendants 85 to 105 and Appeal No. 159 by defendants 2 to 84. There is one common point urged in both these appeals and that is with regard to the order for costs which has been made by the Court below. With that point we shall deal afterwards.

6. So far as Appeal No. 158 is concerned, defendants 85 to 105, who are the appellants in this appeal have contended that Putni Raj Chandra was a tenure validly created by Golam Hossain as Mutwalli of the wakf and that therefore it extended to the entire estate in respect of which he was Mutwalli. The Court below has held that this Putni was not under the two estates Nos. 13173 and 15784 but extended also to estate No. 13783. This contention involves the question of the validity of the wakf. The plaintiffs contended and urged that this question is barred by res judicata by reason of the decision in Suit No. 27 of 1911. The learned-judge has held that the decision aforesaid does not operate as res judicata because Kala Meah or his vendors were not parties to the suit in which the decision was passed. The copy of the decision of the Additional Subordinate Judge of Dacca in this suit dated 27th February, 1912 has been proved and marked as Ex. 25 in this case. From the cause title at the top of the judgment it appears that Alimuddin, Lalit and Amanulla Bhuiya were the plaintiffs in the suit and the heirs of Golam Hossain as well as the heirs of Delwar Ali and Syed Bakhar were all made pro forma defendants and in addition to this was impleaded as a principal defendant Syed Mozaffar Ali. From the judgment itself, it appears that Mozaffar Ali was made a party as Mutwalli appointed in the place of Golam Hossain. The appearing defendants alleged that the wakf was legally Valid and upon that an issue being issue 6 in the case was framed which raised the question of the validity of the Wakf. This issue was specifically dealt with in the judgment and it was eventually found by the learned-judge that the wakf did not represent a substantial endowment for religious and other pious purposes but that the object of the dedicator was only to appropriate a substantial portion of the income of the property for the maintenance of the members of the family. Judging from the array of parties in the suit and the recital of the pleadings as contained in the judgment and the findings that were arrived at upon the issue referred to above, it would seem prima facie that the suit was one in which a decision was sought to be obtained against the Mutwalli, in his representative capacity, on the question of the validity of the wakf and in that way the decision would operate as res judicata on that question so far as that question has arisen in the present suit.

7. But the difficulty of treating this decision as a bar is that the decision was appealed from and though it was upheld by this Court on the appeal, no copy of the decision of this Court has been produced and it is not possible to ascertain on what ground the decision was so upheld. In these circumstances, we are unable to accept the contention which the plaintiff-respondents have put forward, namely that the said decision should be taken as operating as res judicata. The appellants on the other hand have relied upon the decision in Title Suit 2285 of 1920 which was decided by a Munsif on 10th December 1921 and from which decision an appeal being taken, the decision was upheld by the Subordinate Judge by a judgment dated 18th June 1923. This suit appears to have been instituted by the predecessors of the appellants, after their purchase from Kala Meah, against Ram Kumar Nath and others and the plaintiffs in the present suit. Plaintiffs 1, 2 and 3 of this suit were defendants 16, 17 and 18 in that suit. The suit was based on the allegation that the one anna share had been purchased by the appellants' predecessors but that the defendants were contesting the plaintiffs' title and therefore a declaration was sought for that the title acquired by the purchase was good. The contesting defendants in that suit alleged that the plaintiffs' vendor Kala Meah had no title or possession in the alleged 1 anna share in the Putni, that the Kabala under which Kala Meah purchased from Raj Chandra was a paper transaction and no consideration had passed at the so-called sale and that the plaintiffs had never been in possession by virtue of their alleged purchase. The contention urged on behalf of the appellants is that the question of the validity of the purchase of Kala Meah and so also the question as to whether Mariam Bibi had made any valid wakf in respect of the properties arose in the suit and that therefore the same question cannot be raised and decided in the present suit as between the parties who were parties to the previous suit and further more that in any event the present suit so far as it relates to the 1 anna share of Putni Raj Chandra which was the subject matter of the previous suit cannot be permitted to go on.

8. The contention is that inasmuch as in that suit it was decided that Putni Raj Chandra extended not merely to the two Estates Nos. 13173 and 15784, but also to Estate No. 15783, the same question cannot be re-agitated in the present suit. In support of the above contention reliance has been placed on behalf of the appellants upon two decisions of this Court. One is the case reported in 43 CLJ 6061 and the other, the case reported in 35 CWN 7732. On behalf of the plaintiffs-respondents it has been contended that these two decisions upon which the appellants have relied have not correctly laid down the law with regard to a matter of this description but that the principles which should apply to the present case are the principles laid down in 35 Cal 3533. We shall presently refer to these three decisions and consider the question as to whether they are really at variance with each other and whether the principle enunciated in these decisions or any of them should be regarded as good law. But before that, it is necessary to consider the terms of S. 11 of the Code itself. The section speaks of the trial of a suit as also the trial of an issue and lays down a rule under which the trial of a suit or the trial of an issue has to be regarded as barred; and the section makes it perfectly clear that the competency of the Court which tried the previous suit or issue in the previous suit depends upon its jurisdiction to try the subsequent suit. There can be no question in the present case, but that the Court of the Munsif had no jurisdiction to deal with the present suit. The question is as to whether the relevant issue having been decided in the previous suit, there is a bar to the trial of that issue in the present suit, or whether the previous suit itself having been decided, the present suit or any part of it is barred by the principle of res judicata. So far as the trial of an issue is concerned, it will be well to remember what was said by the Judicial Committee in 9 IA 1974. Sir Richard Couch delivering the judgment of the Board observed thus:

As to what is a Court of concurrent jurisdiction, it is material to notice that there are in India a great number of Courts, that one main feature in the Acts constituting them, is that they are of various grades with different pecuniary limits of jurisdiction, and that by the Code of Civil Procedure a suit must be instituted in the Court of the lowest grade competent to try it. For instance, in Bengal, by the Bengal Civil Courts Act, No. 6 of 1871, the jurisdiction of a Munsif extends only to original suits in which the amount or value of the subject-matter in dispute does not exceed Rs. 1,000. The qualifications of a Munsif and the authority of his judgment would not be the same as those of a District or of a Subordinate Judge, who have jurisdiction in civil suits without any limit of amount. In their Lordships' opinion it would not be proper that the decision of a Munsif upon (for instance) the validity of a will or of an adoption in a suit for a small portion of the property affected by it should be conclusive in a suit before a District Judge or in the High Court for property of a large amount, the title to which might depend upon the will or the adoption.

9. There is a no reason to suppose that the safeguard that was sought to be laid down by the observations just referred to were ignored in the subsequent revision of the Code of Civil Procedure, and having regard to the clear terms of S. 11 itself it would not be right to suppose that it was ever intended that if a question arises upon an issue framed in the suit with regard to a property of inconsiderable value which may be dealt with by the Court in which that question arises, and if a decision is arrived at on that question by that Court, that decision can affect property of a much larger value beyond the jurisdiction of that Court when in respect of such property the same question arises. So far therefore as the trial of an issue is concerned, even though in the previous suit it had been decided but decided only by a Court which had no jurisdiction to entertain a subsequent suit, the decision in our opinion, can never be regarded as operating as res judicata when the same issue arises in such subsequent suit.

10. As regards the trial of a suit, there have been cases in which the question has arisen. One typical instance may be given. For instance, if a suit is instituted for recovery of possession on declaration of title in respect of a small bit of land upon the allegation that the plaintiff has been dispossessed and a decision is arrived at by the Court on question of the plaintiff's title and that decision is against the plaintiff, it sometimes happens that after that decision has been delivered the plaintiff institutes another suit including therein not only the land from which he had been previously dispossessed and in respect of which he had previously instituted the suit and had failed, but a much larger quantity of land. He gets the suit instituted in a different Court, a Court of a higher grade, and attempts to get a different decision from that Court on the question of title. With regard to cases of this description it has been decided that it is not open to the plaintiff to take such a course but that the subject matter of the previous suit in which an adverse decision had been passed against him should be excluded from the subsequent suit and that the subsequent suit can only go on with regard to a subject matter which did not form the subject matter of the previous suit.

11. Now reading the above decisions, it seems to us that although no definite principle has been laid down in them, still certain principles may be gathered from what has been said in those cases. A party who has lost in one Court cannot be permitted to add causes of action or prayers for reliefs in another suit for the purpose of swelling the valuation of his suit and claim that the decision in the former suit does not operate as res judicata. But it appears that his subsequent suit proceeded upon a cause of action which did not exist at the date of the previous suit, or if that cause of action existed it was one which he could not have availed of at that time, having regard to the nature of the suit as it then was, the fact that he had now instituted a suit embracing the entire cause of action with the result that his suit was of a higher value would justify him in claiming that the decision in the earlier suit was not operative as res judicata. If it is possible to treat the entire cause of action upon which the latter suit is founded as divisible and if in the earlier suit one of the component parts of the cause of action was relied upon, then the previous decision will stand as a bar to the extent of the matter involved in the earlier suit. Most of the decisions that are to be found in the reports as bearing upon this question are in our opinion justifiable on this principle, and if this test is applied, a good deal of apparent conflict will be found to be reconcilable. Bearing this in mind, if the three decisions to which our attention has been drawn be looked into it will be found that in 35 Cal 353 the claim in the later suit was one which the plaintiff in the second suit as defendant in the first suit was not competent to advance.

12. In 43 CLJ 606 a previous suit had been instituted for recovery of possession of a portion of the property which was covered by a deed of dedication and subsequently another suit was instituted by the same plaintiff including not merely the properties which formed the subject matter of the previous suit but for profits as well and it was held that the previous suit with regard to the validity of the deed did not operate as res judicata in the subsequent suit, but that so far as the property dealt with in the previous suit was concerned the decision operated as res judicata with regard to that property. Therefore, it was a case in which a claim had been advanced and had failed and thereafter some other properties being included in the suit the earlier decision was challenged. The case illustrates the distinction between the trial of an issue and the trial of a suit, as has been pointed out above. In 35 CWN 773, a suit for possession of certain lands on declaration of plaintiff's title was instituted but previously a similar suit with regard to a portion of the lands had been instituted by the same plaintiff and had failed; and it was held that the suit with regard to that portion could not be tried. Applying the tests laid down above, it would seem that the decisions in all these cases are justifiable. But if the tests are applied to the present cases, the position is this: that here the plaintiffs seek to have their shares enforced by partition with regard to a number of properties. They are claiming 11 annas odd share in the properties which formed the Putni Raj Chandra, and one of the issues which arises in the case is the question of the validity of the wakf. In these circumstances, if these tests are applied, in our judgment, it is not possible to hold either that the trial of the issue is barred under S. 11 of the Code or that the 1 anna share of Putni Raj Chandra with regard to which a previous suit was instituted should have to be kept out of the suit on the ground of res judicata. We have been asked to apply to this case the general principles of res judicata apart from the provisions of the Code. But as has been laid down in authoritative decisions, S. 11 of the Code is exhaustive in respect of all cases falling within its terms and with regard to such cases the Court is not entitled to travel outside the section and apply the general principles. Lastly, we may also state that if the decision in Suit No. 2285 of 1920 be carefully read, it will be found that issue No. 4 which was the issue specifically framed for determining the question of the validity of the Wakf was left undetermined by the Court. The decision seems to have been passed on the admission of the parties and on other matters into which the question of the validity of the Wakf did not directly but only incidentally entered. We are of opinion therefore that the decision cannot operate as res judicata.

13. Turning now to the terms of the Wakf itself, it seems to us apparent that the provisions contained in it do not disclose a substantial endowment to charity. The recitals in the document are that the Wakf was being created for the benefit of the sons, grand-sons and heirs in successions of the Wakif's deceased cousin Saiyad Warishani and some other relations and kinsmen who are all poor, destitute and without means. It is also stated no doubt that the Wakf was being created in the name of God and for the purposes of charity. But on an examination of the dispositions that are made it is apparent that the property which is stated to be of the value of Rs. 10,000 could not after meeting all provisions that were made leave any appreciable surplus out of which any work of charity could be performed. The learned-judge has said that at the time when the document was executed the people who would be entitled to allowances under the Wakf would get altogether a sum of Rs. 996 per year, which was to be reduced to Rs. 936 after the death of three persons who were given allowances for their lives. Whatever might be left of the realisations from the Wakf properties, after payment of the said monthly allowances was, it is true, to he spent in pious works at the time of the Muharram; that is to say, the poor and the indigent persons should be fed rice, sinni and sarbat and the repairs of the Imambara, etc., should be done. No details as regards the nature of the wakf nor any specification which would enable the provisions to be enforced are found in the document. Properties of the value stated in the wakf could hardly be expected to produce any amount above the allowances. Our attention has been drawn to a document of 1905 which shows that the rent derivable from the Putni Raj Chandra was Rs. 1,375. This document however came into existence long long after the time when the wakf was created. We are in agreement with the view which the learned-judge has taken as regards the validity of the wakf and we have no hesitation in saying that in our opinion, the gift to charity which is to be found in the wakf is illusory and the document in its true nature represents a family settlement in the garb of a wakf.

14. So far as Appeal No. 159 is concerned, the contentions raised on behalf of the appellants therein relate to the shares that have been awarded to the parties by the preliminary decree. One such contention relates to the share which purports to have been released in favour of Raj Chandra by his nephews under the Nadabi deed referred to in para. 10 of the plaint. It is not possible to deal with this contention because this document is not before us in print and our attention has been also drawn to the fact that this contention does not form the subject-matter of any of the grounds of appeal taken by the appellants. The next contention relates to the question as to what share passed under the documents Exs. 19 and 21. So far as this matter is concerned, the learned-judge has very carefully considered all that can be said for and against the contentions respectively propounded by the parties. On a careful perusal of the documents, it seems to us clear that 6-annas share of the patni passed under each of these documents. This would be apparent if attention is paid to the fact that Putni Raj Chandra was described in two paragraphs, namely 2 and 3, presumably because a part of the patni was encumbered by a darpatni and the other part was not encumbered. In each of these schedules it was separately mentioned that 3 annas of the patni was sold. These are the considerations to which the learned-judge has referred and we think the view Which he has taken is correct. The contention of the appellant therefore must be overruled.

15. We now turn to the common ground that has been taken by the two sets of appellants. That ground is that the order which the Court below has made with regard to costs is not justifiable. That order is to the effect that the plaintiff would get half of their costs up to the stage of the preliminary decree and that out of this one half, a half share would be borne by defendants 85 to 105 minus defendant 91 who did not appear, and the other half would be borne by the other contesting defendants, namely defendants 2, 5 to 13 and 15 to 84. This order in our opinion, is not justifiable. People who go in for complicated transactions such as have been disclosed in the present cases should be prepared to bear their expenses when they find it necessary to enforce their rights by instituting a suit. It was not clear when the plaint was filed what the shares of the different parties would be and it is clear to us that the grounds upon which the defendants contested the plaintiffs' claim were quite substantial. There is no evidence showing that any demand for partition was made or that any objection was offered by any of the defendants to have a proper partition made in respect of the properties. The question raised were all substantial questions either of fact or of law. In these circumstances, the proper order, in our opinion, to make with regard to costs is that each party will bear his or their own costs up to the preliminary stage. Of course, when the time will come to make a final decree, costs of partition subsequently incurred will have to be borne by the parties in proportion to their respective shares. But the present order cannot, in our opinion, be justified. The result therefore is that subject to the variation as regards the order for costs which we consider it necessary to make as indicated above, the appeals will stand dismissed. In the appeals each party will bear his or their own costs.

S.R

16. Appeals dismissed.