JUDGMENT
Basil Scott, Kt., C.J.
1. This suit relates to a portion of a house alleged to have been given away by one Mariam, the widow of Abdool Husen Kamrudin, to her grand-daughter Rukhiaboo, the daughter of Abdul Ali, the first plaintiff, and the wife of the first defendant Miakhan. The deed of gift in favour of Rukhiaboo was dated the 3rd of June 1899.
2. In the year 1900, Mariam found herself involved in three suits in all of which an issue was raised and decided against her as to whether she had any title to the house in question, which had originally belonged to her husband Abdool Husen Kamrudin. The decision against Mariam in those suits is now relied upon as evidence against Miakhan, the husband of Rukhiaboo, although not only were the causes of action in those suits concerned with a different portion of the house to that which was the subject of the gift in favour of Rukhiaboo, but the suits themselves were instituted a year subsequent to that deed of gift. Without considering the question how far a judgment in a suit relating to one portion of a house can be res judicata against the owners of another portion of the house, we hold that the judgments in the suits of 1900 are not admissible in evidence against Rukhiaboo on the ground stated by Mr. Justice Romer in Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company [1894] 1 Ch. 595, ”that a prior purchaser of land cannot be stopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase”. To the same effect are the judgment of the Privy Council in The Natal Land Company v. Good (1868) L.R. 2 P.C. 132, and the judgment of the Allahabad High Court in Naizullah Khan v. Nazir Begam (1892) I.L.B. 15 All, 108: Then it is contended by the appellants that at all events the lower Court in deciding the suit should have considered Abdullahs claim as one of the heirs of Rukhiaboo.
3. Now the claim that was first put forward in this suit was put forward jointly by Abdul Ali with the children of his brother Esoofali claiming as the heirs of Abdul Husen Kam. rudin on the ground that their mother Mariamboo had no title to the property which she purported to dispose of by way of gift to Rukhiaboo. They, therefore, claimed under a title derived from Abdul Husen Kamrudin as his heirs and claimed in respect of his estate. That was a clear and definite cause of action.
4. Abdul Ali, the appellant, now complains that he was not allowedto put forward in the same suit a case based upon an entirely different cause of action, namely, that he was the father of Rukhiaboo, deceased, who obtained a good title to the property in dispute from Mariamboo. That cause of action relates to the estate of Rukhiaboo and is put forward by Abdul Ali claiming by derivative title as one of her heirs, and, we think, it is clear that the joinder of two such causes of action in respect of two different estates is prohibited by Section 44 (b) of the Civil Procedure Code of 1882, which was in force at the date of the institution of this suit.
5. The appellants’ counsel suggests that it might possibly be held, if a subsequent suit were instituted by Abdul Ali claiming as the heir of Rukhiaboo, that the matter is res judicala as it might and ought to have been put forward as a ground of attack in this suit. It is. difficult to see how it can be put forward as res judicata since ex hypothesi the subsequent suit would be between the same parties between whom the Court has decided in this judgment that the claim ought not to be and might not be put forward.
6. The only remaining question is the question of costs. The learned Subordinate Judge states correctly that the defendants filed written statements which are identical in their contentions. They are all members of the same family, the only difference of interest being that some claim as heirs of Rukhiaboo and others claim as tenants. The Subordinate Judge, however, allowed the tenants one set of costs and the heirs another. When the matter went to the lower appellate Court the learned District Judge, although his judgment states that he confirmed the decree of the lower Court and dismissed the appeal with costs, appears to have allowed the decree to be drawn up awarding three separate sets of costs to the defendants.
7. As all the questions in the case are before us in this appeal we are competent to deal with question of costs; and we are of opinion that the defendants are not entitled to more than one set of costs. We, therefore, vary the decrees of the lower Courts in the matter of costs by allowing only one set to the defendants in each Court. In other respects the decree is affirmed.
8. The costs of this appeal must be borne by the appellants.
