in the relations between the native inhabitants of Bombay. Those doctrines could not be employed to subvert the native and substantial laws, but they afforded a means of ameliorating them by a system of rules borrowed from the English Court of Equity.

Trusts are recognized by the Hindu law as well as in the English system of law. But while the substantive Hindu law insists strongly on the suppression of fraud, and the fulfilment of promises, it fails to furnish the detailed rules by which effect is to be given to its principles in cases of trusts. If the Court is called on to give effect to a trust in any given case, it looks to the Hindu law of property to determine the estate of the trustee; but with reference to the duties of trustees and the rights of beneficiaries, it is governed by the rules of English Equity. There are no others that it can apply. In meeting an exigency, or in taking cognizance of a form of rights not directly provided for in the Shastras, the Court, in exercising its jurisdiction under section 41 of the Charter of 1823, may apply Hindu law; but taking Hindu law as one of its data, it applies "English law" also, in the form of equity, to all or nearly all the questions that arise.

Limitation.-By section 10 of the Limitation Act, 1877, notwithstanding anything thereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representative for assigns (not being assigns for valuable consideration), or the purpose of following in his or their hands such property, shall be barred by any length of time.

A suit against trustees for the purpose of charging certain property with the trusts declared by the author of the trust in respect of that property, and for an account, is a suit to follow property, and, as such, is not barred by any lapse of time.†

the premises), for which the defendant agreed to pay the plaintiff the

In re Kahandas Narrandas, I. L. R., 5 Bom. 154.

has been paid by

+ Hurro Coomaree Doss-e v. Tarini Churn Bysack, I. L. R., 8 Cal. 766.

F. P.-38

3. That the plaintiff has a lien as vendor upon said premises for the payment of said purchase-money, which he claims in this suit,

2. That it may be decreed that the plaintiff has a lien upon said premises for the amount of said decree, and that the same may be sold, and the proceeds applied to the payment of said decree, and that he may have execution against the defendant for any deficiency, and for such other and further relief as may be proper.

Vendor's Lien.-The vendor has an equitable lien upon immoveable property sold, whatever may be its tenure, for so much of the purchase-money as in fact remains unpaid; the lien is valid against sub-purchasers with notice claiming under the first purchaser; and sub-purchasers or mortgagees, even without notice, are postponed, unless they have the legal estate, or a better equity, or the title-deeds.

Lien How Lost.-In general the taking of an independent security will be evidence of an intention to abandon the lien; but such an intention will not be implied where the vendor takes a note, bill, or bond, for the purchase-money, even if the same be signed by a third person.†

Limitation.-In suits by a vendor of immoveable property to enforce his lien for unpaid purchase-money, three years from the time fixed for completing the sale, or when the title is accepted after the time fixed for completing the date of the acceptance.‡

Form No. 355.

BY VENDOR AGAINST PURCHASEK AND HIS GRANTEE.

Plaintiff states:

1 and 2. (As in preceding form.)

3. That the defendant C D purchased the said premises of the defendant A B with the full knowledge that the said A B had not paid the said purchase-money, and took a conveyance from the said A B to him for the said premises.

(Conclude as in preceding form.)

Dart. V. & P. 729, 730.

+ Dart. V. & P. 733, 734.

Art. 111, Limitation Act, 1877.

PART II.-DEFENCES.

FIRST DIVISION.

SUITS ON CONTRACT.

FIRST SUB-DIVISION.

DEFENCES GENERALLY APPLICABLE.

CHAPTER I.

DEFENCES AFFECTING PROCEDURE.

Form No. 356.

AMBIGUITY OF PLAINT.

That the plaint is ambiguous, unintelligible, and uncertain. (Point out specially in what the ambiguity or uncertainty consists.)

Essential Allegations.-Each cause of action should be separately and distinctly stated; and each separate and distinct proposition of cach cause of action should be separately set forth in logical order, leaving the conclusions of law deduced therefrom to be drawn by the Court.

Practice.-A plaint may be rejected if it is intentionally obscure, and this even after it has been registered.†

Form No. 357.

ANOTHER SUIT PENDING.

That there was, at the commencement of this suit, and still is, another suit pending, between the same parties, for the same cause, in the Court of , a Court of competent jurisdiction.

Essential Allegations.-The written statement should show that there is another suit pending in a Court in British India, or in a Court beyond British India, established by the Governor-General, of competent jurisdiction, between the same parties, litigating under the same title, and that the subject-matter in controversy is the same.

Mahomed Hossein v. Potun, 20 W. R. 147.

+ Civil Procedure Code, s. 53; and see Chetti Gaundan v. Sundaram Pillai, 2 Mad. 51,

PART II.

Practice. By section 12 of the Civil Procedure Code the Courts are precluded Defences. from trying any suit in which the matter in issue is also in issue in a suit previously instituted in any domestic Court; suits in foreign Courts are by the explanation expressly declared not to be within this rule.

Div. I. Suits on Contract.

A suit filed in the District Munsif's Court on the same day as a suit brought in the Small Cause Court for the same cause of action is no bar to the suit in the Small Cause Court; but the plaintiff must elect which suit he will proceed with.°

the defendant agreed to pay, and the plaintiff agreed (in writing) to
accept, Rs.
in full satisfaction of said claim, as a compromise
thereof.

Construction of Instruments of Compromise.-General words nsed in a deed of compromise or in a release must be confined to matters of the same nature, and forming part of the transaction which the parties had in view.†

Form No. 359.

DEFECT OF PARTIES.

That GH should be made a plaintiff (or defendant) in this suit (state why).

Practice.-The Court should not dismiss a suit for defect of parties merely, but shonld exercise the discretion vested in it by section 32 of the Civil Procedure Code; but a Court is not competent to allow of the introduction into a suit of a party against whom no relief is sought by the plaintiff.‡

The objection must be taken on or before the first hearing ;§ but the Court may of its own motion add parties at any time; this discretion to add parties should be

* Subbramanyian v. Ganapathi, I. L. R., 2 Mad. 123.

✦ Leelanund Singh v. Hamidooddin, I. L. R., 8 Cal. 576; see also Directors of L. & S. W. Ry. Co. v. Blackmore, L. R.. 4 H. L. 610.

Moharanee Surnomoyee v. Bykunt Chunder Mustofee, 25 W. R. 17.

§ Ruchpaul v. Johuree, 2 Agra H. C. R. 147; Jonabali Mollah ». Gulam Assad Chowdhry, 21 W. R. 187.

exercised whenever it appears desirable, in order to prevent a multiplicity of suits, PART II. to bind all persons interested once for all, but this should not be done to the preju- Defences. dice or delay of the plaintiff."

Div. I.

Form No. 360.

FORMER DECREE,

That or the

day of

18, in a suit then pending in the

Court of

between A B plaintiff, and C D defendant, and for the same cause of action as that set forth in the plaint herein, decree was duly passed (describe the decree).

Res Judicata.-Section 13 of the Civil Procedure Code runs as follows :"No Court shall try any suit or issue in which the subject-matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been heard, and finally decided.

In England it was held in the case of Leggatt v. Great Northern Railway Company, that where the issue is the same, and the parties are the same, the finding of the jury is conclusive, whether the cause of action is the same or not; and in Calcutta it has been held that where the parties are the same, the thing claimed the same, and the parties sue and are sued in the same character, the previous suit will be a bar, whether the grounds of action be the same or not.‡

If the cause of action is based on a right identical in both suits, or on the same group of facts infringing that right, the second suit is barred.§

When a judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata, and becomes res sub judice; and if the Appellate Court declines to decide that issue, and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to a future suit than it would be if that judgment had been reversed by the Court of Appeal.

A decision is no less res judicata because it may have been founded on an erroneous view of the law, or a view of the law which a Full Bench has subsequently disapproved.¶

* The Swansea Shipping Co. v. Duncan, Fox & Co., 1 Q. B. D. 644; Bower v. Hartley, 1 Q. B. D. 652, per Mellish and James, JJ.

+1 Q. B. D. 602.

Denobundhoo Chowdhry v. Kristomonee Dossee, I. L. R., 2 Cal. 152.

§ Haji Hasam Ibrahim v. Mancharam Kaliandas, I. L. R., 3 Bom, 137. || Nilvaru v. Nilvaru, J. L. R., 6 Bom. 110.

Gowri Koer v. Audh Koer, I. L. R., 10 Cal. 1087.

Suits on

Contract,