JUDGMENT Mukerji, J.
1. The first two defendants in the suit are the appellants in this second appeal. One Durga Prasad died possessed of certain properties movable and immovable. One of his houses is the bone of contention in this litigation. Durga Prasad died in June 1921. Before his death on 2nd April 1920 he executed a will which was subsequently registered on 5th May 1920. By this will he bequeathed his entire property in favour of his cousin defendant 3, Mt. Sunder Kuar. In his lifetime Durga Prasad brought a suit on 24th August 1920 to obtain the cancellation of a deed of gift alleged to have been executed by himself in favour of the present appellants Ram Charan and Ram Sarup who are brothers and are distant agnates of Durga Prasad. The ground on which that suit was brought was that Durga Prasad never executed the document, that by threats the two defendants in the suit had succeeded in obtaining his thumb-impression on a piece of blank paper and that by some stratagem and collusion with the Sub-Registrar, his admission to the execution of the deed of gift had been recorded as made by him on 5th May 1920 when he appeared before the Sub-Registrar. Durga Prasad having died during the pendency of the suit and his legal representative not having been brought on the record the suit was declared to have abated. Sunder Kuar sold the property in suit to the plaintiff and the plaintiff instituted the suit out of which this appeal has arisen for recovery of possession.
2. The defence in the suit was that Durga Prasad did execute a valid gift in favour of the defendants and put them in possession. The defendants challenged the validity of the will set up by the plaintiff in favour of Sunder Kuar. The learned District Judge found that the will was good and the gift was never executed by Durga Prasad. In this Court it has been contended that on the death of Durga Prasad his suit for the cancellation of the gift having abated, a second suit namely the present suit out of which this appeal has arisen, was not maintainable, in view of the enactment contained in the Civil Procedure Code Order 22, Rule 9. Order 22, Rule 9, Civil P.C., lays down as follows:
Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.
3. The question that is before us, therefore, is whether the present suit has been brought on the same cause of action as the earlier suit brought by Durga Prasad.
4. It must be assumed that the present suit is by a person who represents Durga Prasad. The earlier suit was brought to obtain the cancellation of the alleged deed of gift and the suit was in the nature of a declaratory one. It is true that the defendants in the earlier suit did plead that they were in possession and had been put in possession by virtue of the deed of gift by Durga Prasad himself. The question of possession has not been gone into in the present case. It having been held, in the present litigation, that Durga Prasad never executed the document and never meant to execute it, it must he assumed, as a corollary, that Durga Prasad never put the appellants into possession in order to give effect to the gift. It follows that the defendant-appellants obtained possession in spite of Durga Prasad's attempt to obtain a declaration that the deed of gift was not binding on him or his estate. It further follows that the defendants obtained possession either in the teeth of Durga Prasad's opposition or on his death. The question then would be, whether the fact that the defendants obtained possession would alter the original cause of action or whether it should be taken that cause of action for the two suits are one and the same.
5. In order to see whether the causes of action in the two suite are one and the same, we must certainly see whether the cause of action is substantially the same. A mere change in the relief will not alter the decision of the Court. Where, however, the former suit is one for pure declaration and the second suit is for possession, I am of opinion it must be taken that the two causes of action are different. If the defendants (the appellants) had not taken possession, the fact that the earlier suit was declared to have abated would not have made any difference. It would not have been necessary either for Sunder Kuar or for her transferee to bring the present suit, which is for possession. It is clear therefore that the declaration that the earlier suit abated would not have made the present suit at all necessary. The cause of action therefore for the present suit is materially different from the cause of action for the earlier suit. For these reasons I would dismiss the appeal.
Niamatullah, J.
6. I agree with my learned colleague in the order dismissing the appeal and would add a few words in support of the conclusion arrived at by him. Order 22, Rule 9, Civil P.C, cannot bar the plaintiff's action unless their cause of action for the present suit is identical in whole or in part with the cause of action in the earlier suit. The expression cause of action has been defined to mean:
every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the Court. Salima Bibi v. Shaik Muhammad [1896] 18 All. 131.
7. All that the plaintiff has to establish in the present case is the ownership of Durga Prasad in respect of the house in dispute, the will in favour of defendant 3 and the defendants' wrongful possession of the house in dispute. Unless the gift relied on by defendants 1 and 2 is an instrument of a voidable character, it is not necessary for the plaintiff to have it set aside before establishing the title of Durga Prasad and of defendant 3 in respect of the house in question. It has been held in a long string of cases that an instrument which is inoperative from its inception confers no title upon the transferee thereunder and need not be set aside by the alleged executant of such instrument. The latter can treat it as a nullity and a waste paper and can always assert his ownership: see for instance, Petherpermal Chetty v. Munianoy Servai [1908] 35 Cal. 551 and Jagardeo v. Phuljhari [1908] 30 All. 375. Having regard to the finding arrived at by the learned District Judge to the effect that Durga Prasad never intended to convey the house in dispute to defendants 1 and 2, that he never intended to execute a deed of gift and that he was unaware of the contents of the deed of gift signed by him and now relied on by defendants 1 and 2, it is clear to my mind that no conveyance of title was made by the alleged gift in favour of defendants 1 and 2. A gift has been defined by Section 122, T.P. Act, in these terms:
Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee.
8. In view of the finding of the learned District Judge already referred to, it cannot be said that Durga Prasad voluntarily transferred or even intended to transfer the house to defendants 1 and 2. The alleged transaction, therefore, was not a gift and the so-called instrument of gift was inoperative from its inception and, therefore, it was not incumbent on Durga Prasad to institute a suit to obtain cancellation thereof within three years provided for by Article 91, Lim. Act. It was optional with him to institute a suit under Section 39, Specific Relief Act, to obtain a declaration of the invalidity and the inoperative character of the deed of gift if he so desired and if he apprehended that if left unchallenged, it might prejudice his interests. Such was the character of the earlier suit which abated. If Durga Prasad had subsequently instituted a suit of the same character and for the same relief, the contention that such second suit was barred by the provisions of Order 22, Rule 9, would probably have been well-founded. The suit out of which the present appeal has arisen is based on a different cause of action and has a different object in view. The immediate desire of the plaintiff is to obtain possession of the house which is wrongfully withheld by the defendant who, as already shown, has no title whatever. In other words, the scope of the present suit is to obtain possession from a rank trespasser. No reference to the deed of gift was necessary in the plaint as part of the plaintiffs' cause of action. It has probably been made to anticipate the defence likely to be raised on behalf of defendants 1 and 2. Even if it were not so, it should be regarded as a mere surplusage, not being necessary for the plaintiff to allege in order to obtain the relief he is praying for.
9. As my learned brother has shown, possession of defendants 1 and 2 is not referable to the deed of gift but must have been obtained by them apart from it, and if it is right to hold that the defendants have no title under the gift, their possession is unwarranted and gave a cause of action to the plaintiffs if withheld from them when they demanded it. The order passed by the Magistrate under Section 145, Criminal P.C. made it necessary for the plaintiffs to seek a declaration of their title and the consequential relief of possession. For these additional reasons 1 concur with my learned colleague in dismissing the appeal with costs.