MANONMANI AMMAL Vs. VYTHIALINGA NAICKER

JUDGEMENT

(1.) The point is a short one but not very easy, and it is after some doubt that I have arrived at the conclusion that the Courts below are right.

(2.) The question is whether the cause of action in respect of which the two suits have been instituted is one and the same, and to arrive at the answer we must, I think, have regard to the position of affairs at the date of the earlier suit.

(3.) At that date the plaintiff had by two separate transactions acquired the shares of two out of five (or perhaps four; the number is unimportant for my present purpose) members of an undivided family. The shares had not been separated, and to obtain the benefit of his purchases the plaintiff, being driven to a suit, had to sue the whole family. At the date of the suit he could say " I am entitled to two-fifths of the family property," but he could not say " I am entitled to one fifth here and to one fifth there to one fifth of such and such fields and to one fifth of such and such other fields." His second purchase had augmented the proportion of the whole to which he was entitled, but, did not give him a right to localise a second distinct fraction of it.