JUDGMENT: The plaintiff in O.S. No.775 of 1987, on the file of II Additional District Munsif, Pondicherrry, is the appellant in the second appeal. 2. The suit was for declaration that the sale deed dated 6.1.1969 was a disguised donation and the subsequent alienation in pursuance of the said deed was not binding on the plaintiff, and also for a direction to the registration authority to register the judgment in the present suit. The case as set out in the plaint was as follows: The suit schedule properties belonged to the plaintiff’s father Thangavelu alias Ramasamy. In or about 1963 the father became mentally ill. He was suffering from unsoundness of mind. Thereupon, the plaintiff assumed management of the family properties. The defendant, who was the son-in-law of the family took advantage of the unsoundness of mind of the plaintiff’s father, took him to a Notary Office to get a document of donation executed in his favour in respect of his properties. It would appear that Notary objected to the execution of the document on the ground that such a donation would be void as the plaintiff’s father had a son. He was therefore instructed to write a deed of sale. The Notary obliged him by preparing a sale deed and the same was executed by the plaintiff’s father. No consideration was passed for the sale. The plaintiff’s father died on 15.3.1978. Despite the sale, the properties continued to be in the possession of the plaintiff. The suit was therefore filed as the sale deed was only a disguised donation. 3. The defendant resisted the suit contending inter alia as follows: The very same plaintiff filed an earlier suit in O.S. No.69 of 1970 before the subordinate Court Pondicherrry against the very same defendant and one Sarangapani, for declaration that the sale deed, dated 6.1.1969, was void and for certain other reliefs. The suit though decreed by the trial Court, on appeal in A.S. No.1111 of 1974, the District Court reversed the judgment and the decree of the trial Court. Against which, S.A. No.150 of 1978 was filed before this Court. The judgment of the lower appellate Court was confirmed and the matter was, thus finally set at rest. The present suit was, therefore, clearly barred by res judicata. Against which, S.A. No.150 of 1978 was filed before this Court. The judgment of the lower appellate Court was confirmed and the matter was, thus finally set at rest. The present suit was, therefore, clearly barred by res judicata. It also suffered from constructive res judicata under O.2, Rule 2, C.P.C. as the plea that it was a disguised donation was open to the plaintiff in the previous suit. It was not true that the plaintiff’s father was of unsound mind. He was hale and healthy and in fact knowing fully well he had executed a sale deed in favour of the defendant on 6.1.1969. The suit was also barred by limitation. It had also not been properly valued for purpose of Court-fee and jurisdiction. 4. On the above pleadings, the trial Court framed as many as 7 issues. There was no oral evidence let in. Ex.B-1, dated 28.7.1977, being the judgment of the lower appellate Court in the previous proceedings, was marked by consent. The learned District Munsif, Pondicherrry held that there was absolutely no difference between the previous suit and the present suit. The pleadings were practically same, identical issues were framed and in the previous suit it had been categorically pointed out that the sale deed impugned was not a sham and nominal document, that the plaintiff’s father was not a person of unsound mind at the time of executing the sale deed, and that if the plaintiff had been allowed to litigate on the very same facts, then it would lead to total injustice. Ultimately, the trial Court held that the suit was barred by res judicata and dismissed the suit. 5. The appeal, by the plaintiff in A.S. No.116 of 1988 was also dismissed by the learned District Judge, Pondicherrry, by judgment and decree dated 26.6.1989. The courts below did not go into merits of the case. It is, as against this, the present second appeal has been filed. 6. 5. The appeal, by the plaintiff in A.S. No.116 of 1988 was also dismissed by the learned District Judge, Pondicherrry, by judgment and decree dated 26.6.1989. The courts below did not go into merits of the case. It is, as against this, the present second appeal has been filed. 6. At the time of admission the following substantial question of law was framed for decision in the second appeal: Whether the courts below are right in dismissing the suit on the ground that the suit is barred by the principle of res judicata when the earlier suit ws dismissed as seen from the judgment of this Court, reported in Pandurangan v. Sarangapani, (1982)1 M.L.J. 143 , that the plaintiff had no present right to file the earlier suit? 7. Mr.Hariharan, learned counsel for the appellant submitted that the issues of law and of fact arising in the present suit were intertwined and were not separate and the courts below were in error in disposing of the suit on the issue of bar of suit by res judicata treating it as a preliminary issue. The plea of res judicata could not be raised or decided in the absence of the pleadings in the prior suit. The reasoning of the courts below in getting over the settled position was puerile and unsustainable. The courts below did not properly appreciate the nature and scope of the prior suit and the final decision rendered therein in second appeal and the nature and scope of the present suit. The courts below failed to see that the matter directly and substantially, in issue in the present suit was not directly and substantially in issue in the former suit and the parties were not litigating under the same title in both the suits and as such there was no scope for rejecting the present suit as barred by res judicata. The summary of pleadings given in the judgment of the lower appellate Court could not be substituted for pleadings themselves. In the prior suit, the only point set down for consideration was whether the sale deed, dated 6.1.1969, was null and void for unsoundness of mind of the vendor and for want of valid sale consideration, and that was not the question raised in the present suit. In the prior suit, the only point set down for consideration was whether the sale deed, dated 6.1.1969, was null and void for unsoundness of mind of the vendor and for want of valid sale consideration, and that was not the question raised in the present suit. This Court in the previous proceedings held that the prior suit by the present appellant was premature as he had no enforceable right during the lifetime of his father. The present suit had been filed after the life time of his father, whereas the previous suit was filed by him as the son when his father was alive claiming right by birth which was negatived. The courts below ought to have gone into the question and held that the impugned sale deed was an absolute nullity in view of Art.1582 of Code Civil and this question was not raised or decided in the prior proceedings. The courts below ought to have seen that the distinction between the suit filed by the son of the vendor, who was alive, for setting aside the sale on the ground of “impeachment for falsity” and the suit filed by the heir of the vendor, after his demise, for declaring the sale null and void on the ground that the consideration was simulated that was illusory and not real and therefore there was no sale. In this connection, the courts below ought to have appreciated the scope and effect of Art.1591 of Code Civil. The courts below were in error in admitting the plea of constructive res judicata. 8. The learned counsel for the appellant also relied on the following judgments: (1) Gurbux Singh v. Bhooralal, A.I.R. 1964 S.C. 1810; (2) Sidramappa v. Rajashetty, A.I.R. 1970 S.C. 1059: (1970)1 S.C.J. 857; (3) State of M.P. v. State of Maharashtra, A.I.R. 1977 S.C. 1466 and (4) Jaswant Singh v. Custodian of Evacuee Property, New Delhi, A.I.R. 1985 S.C. 1096. 9.Per contra, Mr.Rajaraman, learned counsel for the respondent submitted that the present suit was clearly hit by res judicata under O.2, Rule 2, C.P.C. All the questions now raised were in issue in the earlier suit and all the issues were held against the present plaintiff in the previous proceedings and that the decision in the previous suit would be clear res judicata. In the previous suit it was categorically found that the father was not of unsound mind, and that he had the mental and physical capacity to execute a sale deed in respect of his own properties. The sale having been upheld in the previous proceedings, the plaintiff was estopped from raising the matter all over again. 10. The previous decision is reported in Sathyamurthy v. Sri Vasan Finance Corporation, (1982)1 M.L.J. 242 . Though, it is contended on behalf of the appellant that the finding in the previous suit is obiter, I do not agree. The earlier suit was between the same parties. Pleadings and issues were identical. The trial Court accepted the case of the plaintiff and decreed the suit. However, on appeal, the decision was reversed and the same was confirmed by this Court. In my considered view, the decision in the previous suit will operate as res judicata. 11. The learned counsel for the appellant relied on the decision of the Supreme Court in Gurbux Singh v. Bhooralal, A.I.R. 1964 S.C. 1810 and contended that the pleadings in the previous suit had not been produced and marked, and in their absence notwithstanding the filing of the final judgment in the previous suit, the principle of res judicata could not be applied. According to the learned counsel, it was incumbent on the defendant setting up the plea of res judicata to have produced the pleadings. 12. I had occasion to consider a similar question in S.A. No.1159 of 1984. It was also a case where the question arose, whether in the absence of pleadings in the previous suit, the bar of res judicata could be put forward. I held that it was not an absolute rule and it would depend on the facts of the individual cases. 13. The learned District Judge has considered this aspect and held that the judgment of the First Appellate Court in the previous suit was available and had been marked as Ex.A-1 and the judgment of this Court had been reported and on the available materials, the plea of res judicata could be examined. The issues settled in the earlier suit as extracted in the first Appellate Court judgment are as follows: (1) Whether the plaintiff’s father was a man of unsound mind at the time of execution of the sale in favour of D-1? The issues settled in the earlier suit as extracted in the first Appellate Court judgment are as follows: (1) Whether the plaintiff’s father was a man of unsound mind at the time of execution of the sale in favour of D-1? (2) Whether the sale in favour of D-1 is sham and nominal without valid consideration? (3) Whether the sale in favour of D-2 is sham and nominal without valid consideration? (4) Whether the sale deeds in favour of D-1 and D-2 can be set aside as null and void? (5) To what relief, if any, the plaintiff is entitled? 14. On those issues the First Appellate Court held that the plaintiff’s father was not of unsound mind, that the sale was not sham and nominal and that it was valid and for consideration. Those findings were upheld by this Court. The issues in the present suit apart from the one relating to the bar of res judicata are whether the plaintiff’s father Thangavelu alias Ramasamy was of unsound mind at the time of execution of the sale deed, dated 6.1.1969 in favour of the defendant and as such it is void: whether the said sale is not supported by consideration: whether the sale deed is a disguised donation: whether the plaintiff is the sole legal heir to the exclusion of the daughters of Thangavelu alias Ramasamy; whether the plaintiff is entitled for declaration as prayed for: and to what relief the plaintiff is entitled? 15. Issue No.1 relating to res judicata, was taken up as the preliminary issue by the trial Court as well as the First Appellate Court in the present suit. It was held in the previous suit that the plaintiff’s father was not of unsound mind that the sale was not sham and nominal and that it was valid and for consideration. These findings were upheld by this Court. The ultimate conclusion reached by this Court was as follows: “The result is that the validity of the alienation is not assailable on any grounds taken by the plaintiff. The Court below rightly dismissed the suit.” 16. Mr.Hariharan, learned counsel for the appellant, adverted to paragraph 10 of the judgment of this Court and submitted that the position has changed since the decision in the previous suit on account of the death of his father. The Court below rightly dismissed the suit.” 16. Mr.Hariharan, learned counsel for the appellant, adverted to paragraph 10 of the judgment of this Court and submitted that the position has changed since the decision in the previous suit on account of the death of his father. After the life time of the plaintiff’s father the present suit came to be filed as heir. Whereas the previous suit was filed by the plaintiff as the son, when his father was alive claiming right by birth, which was negatived. As already noted, the learned counsel relied on para 10 and the concluding sentence in that para of the previous decision. It is as follows: “The plaintiff has no present right in the properties to challenge the alienation.” The learned counsel clutching at this solitary sentence submitted that the previous suit by the plaintiff had been dismissed as the suit was premature. I do not agree. In the present suit identical issues were tried and conclusion reached and finding given that the properties, subject matter of sale by the father, were his absolute properties, that the plaintiff had no right to question the transaction, and that he had also not established that at the time the sale deed was executed, the father was of unsound mind. 17. In my view, the findings in the previous suit are binding and will operate as res judicata notwithstanding the non-filing of the pleadings in the previous case, in the present suit before Court now. 18. In Gurbux Singh v. Bhooralal, A.I.R. 1964 S.C. 1810, the facts were so complicated and it was eminently necessary in that case to know precisely the nature of the pleadings in the previous suit for adjudication on the question of res judicata. I have referred to this Supreme Court decision in S.A. No.1159 of 1984 and held that the Supreme Court has not laid down any absolute rule of law, that unless the pleadings in the previous suit had been filed it would not be open to the parties in the subsequent suit to raise the plea of res judicata. There is absolutely no doubt in the present case as regards the nature of the claim in the previous suit as opposed to the nature of the claim in the present suit. There is absolutely no doubt in the present case as regards the nature of the claim in the previous suit as opposed to the nature of the claim in the present suit. The judgment in the previous suit has become final and it is not only from the summary of the pleadings that the plea of res judicata has been raised. The question in the previous suit was whether the suit properties were the absolute properties of the plaintiff’s father, whether he was of unsound mind at the time he executed the sale deed in respect of the said properties and whether the plaintiff had any right to question the sale by his father. 19. There was a decision against the appellant herein on all these points by this Court, as reported in Pandurangan v. Sarangapani, (1982)1 M.L.J. 143 . In the previous suit the plea that the father was an insane person, and therefore, the alienation was null and void was sought to be supported by the production of a medical certificate, Ex.A-8 and also the depositions of P.Ws.2 and 3. P.Ws.2 and 3 spoke of the facts as known to them in the year 1963. The medical certificate was issued on 17th December, 1971. The transaction was on 6.1.1969. It was held that there was no evidence to show that on the particular date or at or about that time the plaintiff’s father was a lunatic. The learned single Judge held that the alienation in favour of the first defendant as such could not be impugned and that even assuming that it could be impugned, there was no evidence to show that it lacked any validity. As already noted, the learned counsel for the appellant harped on the observation made in para 10 of the judgment to the following effect: “It would thus follow that the plaintiff has no present right in the properties so as to be in a position co challenge the alienation.” It does not mean that he would have right subsequently so as to enable him to challenge the alienation. According to the learned Judge, the plaintiff had no right in the property so as to be in a position to challenge the alienation. 20. According to the learned Judge, the plaintiff had no right in the property so as to be in a position to challenge the alienation. 20. Now, that we are on the point of non-filing of the pleadings in the previous suit for the sake of completeness, I would refer to another decision of the Supreme Court in Syed Mohammed Salie Labbai v. Mohammed Hanifa (Deceased) and others, A.I.R. 1976 S.C. 1569. In that case, it was disputed that the subject matter was the same as in the previous suit and the Supreme Court observed that the best method to decide the question of res judicata was first to determine the case of the parties as put forward in their respective pleadings in their previous suit and then to find out as to what had been decided by the judgment which operated as res judicata. There was dispute with regard to identity of the subject matter in that case. 21. For res judicata to operate, the conditions to be proved are: (1) The litigating parties must be the same. (2) The subject matter of the suit also must be identical. (3) The matter must be finally decided between the parties, and (4) The suit must be decided by a Court of competent jurisdiction. In my considered view, all the four conditions of satisfied in the present case. 22. The learned counsel placed considerable reliance on the decision of the Supreme Court in Jaswant Singh v. Custodian of Evacuee Property, New Delhi, A.I.R. 1985 S.C. 1096. In that case before the Supreme Court, in execution of money decree obtained by plaintiffs on 20.11.1947 in suit for specific performance of an agreement, the auction sale of certain properties of defendant in Delhi (already attached before judgment on 9.10.1947) was set aside at the instance of auction purchaser on 10.7.1948 because the defendant had become an evacuee. The Custodian of Evacuee Property, Delhi filed an application before the executing Court on 17.7.1948 claiming that the attached properties were evacuee properties under the East Punjab Evacuees (Administration of Property) Act, 1947, which was extended to Delhi also and that under Sec.8 of that Act all properties of which the Custodian had taken possession under Sec.6 thereof were exempt from attachment. That application was dismissed on 19.7.1948 on the ground that the Receiver appointed by the Court was in possession of the properties and no steps had been taken by the custodian under Sec.8 of that Act. The attached properties were again brought to sale and on this occasion the properties were purchased by one of the decree-holders. The sale was confirmed on 16.10.1948. After the said amendment, the Custodian of the Evacuee Property made another application on 11.12.1948 before the Sub Judge claiming that the sale of the properties by the Court was ineffective since the sale had taken place after 31.12.1947. That application was rejected by the Sub Judge holding that the said provision did not affect the Court sales of properties which had been attached prior to 31.12.1947 and that in the instant case the properties that had been sold had been attached on 9.10.1947. The said order of the Sub Judge was passed on 28.3.1949 and it became final. On the basis of the Ordinance 12 of 1949, the Custodian made an application before the Sub Judge on 24.8.1949 for setting aside the sale. That application was dismissed for default on 10.12.1949. But during the pendency of the said application Ordinance No.27 of 1949 was promulgated on 18.10.1949. In view of Sec.7 read with Sec.8(2) of Ordinance No.27 of 1949, the properties of defendant which had been attached in the suit and which had been sold through Court had also vested in the custodian under Ordinance No.27 of 1949. On 15.12.1949, the Custodian made an application both under O.9, Rule 9 of Civil Procedure Code, 1908 and under Sec.17(2) of Ordinance No.27 of 1949 praying for restoration of the application which had been dismissed for default on 10.12.1949 and for setting aside the sale under Sec.17(2) of Ordinance No.27 of 1949. The application was restored but was dismissed on 24.3.1950 after hearing parties. On appeal by the Custodian the single Judge of High Court dismissed the appeal without referring to Ordinance No.27 of 1949. The Letters Patent Appeal filed by the Custodian against the judgment of single Judge was allowed by the Division Bench. The application was restored but was dismissed on 24.3.1950 after hearing parties. On appeal by the Custodian the single Judge of High Court dismissed the appeal without referring to Ordinance No.27 of 1949. The Letters Patent Appeal filed by the Custodian against the judgment of single Judge was allowed by the Division Bench. The Division Bench held that by virtue of Sec.17 of Ordinance No.27 of 1949 the sale in favour of the decree-holder/ auction-purchaser was liable to be set aside and the application made by the Custodian was not barred by the rule of res judicata. The Division Bench accordingly set aside the Court sale. On appeal to Supreme Court by certificate, it was held that but for the new law contained in Sec.17(2) of Ordinance No.27 of 1949 the Custodian would not have been able to question the Court sale in question. Since the Custodian could not have asked for the relief before 28.3.1949, it could not be said that the present proceedings were barred by the rule of res judicata eventhough in both the proceedings the prayer made by the Custodian was that the sale of the properties in question should be set aside. In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. In my view, the test laid down by the Supreme Court is satisfied in the present case. There is no change of cause of action. It is puerile to contend that the present suit came to be filed after the lifetime of the father whereas the previous suit was filed during the lifetime of the father claiming right by birth. It is a distinction without a difference. The decision, in my view, does not in any way help the case of the appellant. 23. The present suit is also barred under O.2, Rule 2, C.P.C. The point raised in the present suit is that the sale deed is a disguised donation. This ought to have been raised by the plaintiff in the previous suit. The decision, in my view, does not in any way help the case of the appellant. 23. The present suit is also barred under O.2, Rule 2, C.P.C. The point raised in the present suit is that the sale deed is a disguised donation. This ought to have been raised by the plaintiff in the previous suit. Apparently, it was not raised and it is not open to him to raise that point now. In support of his contention, the learned counsel relied on a judgment of the Supreme Court in State of M.P. v. State of Maharashtra, A.I.R. 1977 S.C. 1466. It has been observed by the Supreme Court in that case that plaintiff will be barred under O.2, Rule 2 of C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.... If at the date of the former suit the plaintiff was not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit..... A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a “portion of his claim” within the meaning of O.2, Rule 2 of C.P.C. This decision also has no application to the facts of the present case. It is not as if the plaintiff was not aware of the alleged right he claims now. In my view, as already stated, the right now claimed is not any different from the right he claimed previously. 24. The learned counsel then relied on the Supreme Court decision in Sidramappa v. Rajashetty, A.I.R. 1970 S.C. 1059 for contending that the cause of action in the present suit is different from the relief asked for in the subsequent suit which was not asked for in the earlier suit. It has been observed by the Supreme Court that the requirement of O.2, Rule 2, C.P.C. is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. It has been observed by the Supreme Court that the requirement of O.2, Rule 2, C.P.C. is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Where the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff’s subsequent suit is not barred by O.2, Rule 2, C.P.C.. This decision also has no application to the facts of the present case. 25. Though I am of the considered view that the decision in the previous suit would operate as res judicata and that the present suit is barred under provisions of O.2, Rule 2, C.P.C. still having regard to certain decisions of the Supreme Court, even conceding that the previous decision will not operate as res judicata it would be binding precedent. It has been held in Srinivas v. Narayan, (1954)1 M.L.J. 630 : A.I.R. 1954 S.C. 379, that the judgment in a previous suit could be held to be admissible under Sec.13 of the Evidence Act and the findings reached in that decision would be treated as binding on the parties in a subsequent suit. In the case before the Supreme Court there was a previous suit for maintenance by widow of joint Hindu family, maintenance was asked to be charge on joint family property; the amount of maintenance to depend on extent of joint family property. An issue was framed as to the extent of property actually held by the party. It was held by the Supreme Court that the judgment in that maintenance suit was admissible as instance in which there was assertion that certain properties belonged to joint family, in subsequent suit for partition in which these properties were claimed to be self acquired properties. It was held by the Supreme Court that the judgment in that maintenance suit was admissible as instance in which there was assertion that certain properties belonged to joint family, in subsequent suit for partition in which these properties were claimed to be self acquired properties. In the present case, it was held in the previous suit that the sale deed by the plaintiff’s father had been validly executed for due consideration and that the plaintiff’s father was not of an unsound mind at the time the sale deed was executed. 26. In another decision of the same year, in Sital Das v. Sant Ram, A.I.R. 1954 S.C. 606, it was held that in a suit where succession to the office of late Mahant was in dispute, a judgment in a suit by the said Mahant challenging a certain alienation of property as Mahant, was admissible as a transaction in which the Mahant from whom one of the parties to the subsequent suit purported to derive his title, asserted his right as a spiritual collateral of M and on that footing got a decree. 27. In Sahu Madho Das v. Mukand Ram, (1955)2 M.L.J. (S.C.) 1: A.I.R. 1955 S.C. 481, it was held that a decision of the Privy Council construing a document in a particular way was not binding on person not party to the litigation, still it would operate as a judicial precedent. 28. In a recent decision, Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998)3 M.L.J. (S.C.) 49: J.T. (1998)2 S.C. 231, the Supreme Court held relying on Srinivas v. Narayan, A.I.R. 1954 S.C. 379 and other judgments that even a judgment not inter-partes is admissible in evidence under Sec.13 of Evidence Act that a party can rely upon the said judgment to show its title in the suit property, even though the other side was not party to earlier suit. 29. When that is the legal position, the decision rendered in the earlier suit in which the present plaintiff was a party in fact was the plaintiff would clearly operate as a bar for the trial of the subsequent suit on merits. The courts below in the present case have rightly upheld the contention of the defendant regarding the maintainability of the present suit. There was, therefore, no need to go into the merits requiring the parties to lead evidence once over. 30. The courts below in the present case have rightly upheld the contention of the defendant regarding the maintainability of the present suit. There was, therefore, no need to go into the merits requiring the parties to lead evidence once over. 30. For all the reasons stated above, the concurrent decision of the courts below is upheld. The substantial questions of law raised are answered against the appellant. The second appeal fails and the same is dismissed. No costs.