Case ID: 5025

Judgment:
Civil Appeal No. 648 of 1972. From the Judgment and order dated 30.12.1963 of the Punjab Circuit Bench at New Delhi in Letter Patent Appeal No. 32 D of 1985. S.C Malik	 S.P. Mahajan and Harbans Singh for the Appellants. Miss Halida Khatun and R.N. Poddar for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH	 J. Sardar Mela Singh and Sardar Hari Singh were brothers They jointly owned an Ice Factory at Rawalpindi which was known as 'Sat Kartar Ice Factory '. They entered into an agreement on August 6	 1947 with one Saghir Ahmed	 who was a resident of Delhi	 to sell in his favour one half of their interest in the said Ice Factory for a sum of Rs. 90	000 and received Rs. 5	000 by way of advance. Saghir Ahmed agreed to pay the balance of Rs. 85	000 and to complete the sale transaction within a month but he failed to do so. Saghir Ahmed having left India became an evacuee. Sardar Mela Singh and Sardar Hari Singh anticipating that Saghir Ahmed was likely to get possession of the Factory on the basis ' of the agreement to sell executed in his favour instituted a suit in forma pauperis on October 1	 1947 in Suit No. 3 of 1947 on the file of the Senior Sub Judge at Delhi for specific performance of the agreement to sell and inter alia prayed for a decree for a sum of Rs 85	000 which was the balance of the consideration payable under the agreement to sell referred to above and for Rs. 5	000 as compensation for the loss caused by Saghir Ahmed in not completing the transaction of sale in time. They stated that on his paying the balance of consideration	 a sale deed may be obtained from them by Saghir Ahmed. Saghir Ahmed remained ex parte and the suit was heard in his absence. On November 20	 1947 a decree was passed in the suit by the Sub Judge	 Ist 335 Class	 Delhi against Saghir Ahmed	 directing him to pay to Sardar Mela Singh and Sardar Hari Singh	 the plaintiffs in the suit	 a sum of Rs. 86	000 along with costs of Rs. 2967/8/. Saghir Ahmed was given liberty to apply to the court to get a regular sale deed executed by the plaintiffs. It may be stated here that during the pendency of the suit the interest of Sardar Mela Singh under the agreement had been assigned in favour of one Jaswant Singh	 who was impleaded as plaintiff No. 3 in the suit. Thus Jaswant Singh became a decree holder under the decree passed	 as stated above. That on October 3	1947 on an application made by the plaintiffs a Receiver was appointed by the court to take possession of some of the properties of Saghir Ahmed. That on October 9	 1947 on an application made by the plaintiffs certain immovable properties belonging to Saghir Ahmed	 namely residential flats Nos. S and 7 together with some shops which were situated in Panchkuian Road	 New Delhi and another immovable property situated in Ghee Mandi	 Pahar Ganj	 Delhi were attached before judgment. After the decree was passed by the court	 the attached properties were put to sale in execution	 but at the instance of the auction purchaser	 who apparently had become apprehensive on account of the status of Saghir Ahmed	 who had become an evacuee	 the sale was set aside on July 10	 1948. The Custodian of Evacuee Property	 Delhi filed an application before the executing court on July 17	 1948 claiming that the attached properties were evacuee properties under the East Punjab Evacuees ' (Administration of Property) Act	 1947 (East Punjab Act No. XIV of 1947) (hereinafter referred to as 'the East Punjab Act ')	 which was extended to Delhi also and that under section 8 of that Act all properties of which the Custodian had taken possession under section 6 thereof were exempt from attachment. That application was dismissed on July 19	 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 section 6 of that Act. The attached properties were again brought to sale and on this occasion the properties were purchased by Jaswant Singh	 one of the decree holders. The sale was confirmed on October 16	 1948. The East Punjab Act was amended in 1948. After such amendment sub section (2) of section 8 of that Act	 as extended to Delhi	 read as follows: "8 (2) All subsisting attachments of evacuees ' property effected after 31st December	 1947 under orders of a Civil or Revenue Court or Officer or other authority shall cease to have any effect	 and all sales	 leases or other 336 forms of alienation by any Court	 Officer or authority of A such property effected after the above mentioned date shall be liable to be set aside at the instance of the Custodian on an application filed before the Court	 officer or authority which ordered the sale	 lease or alienation	 as the case may be	 within three months of the coming into force of East Punjab Evacuees ' (Administration of Property) (Second Amendment) Ordinance	 1948	 or the date of the sale	 lease or alienation whichever is later. " After the said amendment	 the Custodian of the evacuee Property made another application on December 11	 1948 before the learned Sub Judge claiming that the sale of the properties by the court was ineffective since the sale had taken place after December 31	 1947. That application was rejected by the learned Sub Judge holding that the said provision did not affect the court sales of properties which had been attached prior to December 31	 1947 and that in the instant case the properties that had been sold had been attached on October 9	 l 947. The said order of the learned Sub Judge was passed on March 28	 1949 and it became final. Thereafter on June 13	 1949 the Governor General of India passed an ordinance called the Administration of Evacuee Property (Chief Commissioners	 Provinces) Ordinance	 1949 (Ordinance No. XII of 1949). Section 15 of that Ordinance provided "15. Exemption from attachment	 sale etc. (1) Save as otherwise expressly provided in this Ordinance	 no property which has vested in the Custodian shall be liable to attachment	 distress or sale in execution of a decree or order of a Court or any other authority	 and no injunction in respect of any such property shall be granted by any Court or other authority. (2) Any attachment or injunction subsisting on the commencement of this Ordinance in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement	 and any transfer on such property under the orders of a Court or any other authority made after such date as may be specified in this behalf with reference to any Province by the 337 Central Government by notification in the Official Gazette	 shall be set aside if an application is made to such Court A or authority by or at the instance of the Custodian within three months from the commencement of this Ordinance. " On the basis of the above provision	 the Custodian made an application before the Sub Judge	 Ist Class	 Delhi on August 24	 1949 for setting aside the sale. That application was dismissed for default on December 10	 1949. But during the pendency of the said application the Governor General had promulgated another ordinance called The Administration of Evacuee Property Ordinance	 1949 (Ordinance No. XXVII of 1949) hereinafter referred to as 'Ordinance No. XXVII of 1949 ') which came into force with effect from October 18	 1949. Ordinance No. XXVII of 1949 provided for the administration of evacuee property and for certain other matters connected there with. Under clause (i) of section 2 (d) of Ordinance No. XXVII of 1949 a person	 who on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left any place in any part of India for any place outside India	 was treated as an evacuee. Saghir Ahmed	 it is not disputed	 was an evacuee falling within the said definition. Section 2 (f) of Ordinance No. XXVII of 1949 defined the expression 'evacuee property ' thus: "2. (f) "evacuee property" means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity)	 and includes any property (1) which has been obtained by any person from an evacuee after the 14th day of August	 1947	 by any mode of transfer	 unless such transfer has been confirmed by Custodian	 or (2) belonging to any person who	 after the commencement of this Ordinance	 does any of the acts specified in clause (e) of section 2	 or in which any such person has any right or interest	 to the extent of such right or interest	 but does not include 338 (i) any ornament and any wearing apparel	 cooking A vessels or other household effects in the immediate possession of an evacuee; (ii) any property belonging to a joint stock company the registered office of which was situated before the 15th day of August	 1947	 in any place no forming part of Pakistan and continues to be 80 situated after the said date	 Section 7 of Ordinance No. XXVII of 1949 empowered the Custodian appointed thereunder to pass an order declaring any property, which satisfied the definition in section 2 (f) thereof as 'evacuee property ' and on such declaration being made such property vested in the Custodian by virtue of sub section (2) of section 8 thereof. It provided that where immediately before the commencement of Ordinance No. XXVII of 1949 any evacuee property had vested in any person exercising the powers of a Custodian under any law repealed by Ordinance No. XXVlI of 1949, such evacuee property would on the commencement of Ordinance No. XXVII of 1949 be deemed to have vested in the Custodian appointed or deemed to have been appointed for the area under Ordinance No. XXVII of 1949 and would continue to so vest. It is again not disputed that the properties of Saghir Ahmed which had been attached in the suit and which had been sold through court had also vested in the Custodian under Ordinance No XXVII of 1949 by virtue of section 8(2) thereof. It is now necessary to refer to the crucial provision in Ordinance No. XXVI of 1949 insofar as this appeal is concerned. Section 17 of Ordinance No. XXVII of 1949 read as follows: 17. (1) Save as otherwise expressly provided in this Ordinance	 no property which has vested in the Custodian shall be liable to attachment	 distress or sale in execution of an order of a Court or of any other authority	 and no injunction in respect of any such property shall be granted by any Court or other authority. (2) Save as otherwise expressly provided in this Ordinance	 any attachment or injunction subsisting on the commencement of this Ordinance in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement	 and any 339 transfer of evacuee property under orders of a Court or any other authority made after the 14th day of August	 A 1947	 shall be set aside	 if an application is made to such Court or authority by or at the instance of the Custodian within three months from the commencement of this Ordinance R It may be noted that under sub section (2) of section 17 of Ordinance No. XXVII of 1949 any transfer of evacuee property under orders of a court or any other authority made after August 14	 1947 was liable to be set aside if an application was made to such court or authority by or at the instance of the Custodian within three months from the commencement of Ordinance No. XXVII of 1949. Now reverting to the narration of events	 on December 15	 1949 the Custodian made an application dated December 12	 1949 both under Order 9	 rule 9 of Code of Civil Procedure	 1908 and under section 17(2) of Ordinance No. XXVII of 1949 praying for restoration of the application which had been dismissed for default on December 10	 1949 and for setting aside the sale as provided by section 17(2) of Ordinance No. XXVlI of 1949. The application dated August 24	 1949 was restored on February 11	 1950 and that application was heard on February 28	 1950. The application was dismissed on March 24	 1950. Against the order of the Sub Judge	 Ist Class	 Delhi dated March 24	 1950 the Custodian filed and appeal No. 97 of before the High Court of Punjab and one of the grounds urged in the course of that appeal was that the learned Sub Judge had erred in not considering the effect of section 17 of Ordinance No. XXVII of 1949 on the case. That appeal was dismissed by a Single Judge of the High Court of Punjab at Chandigarh on August 26	 1958. The learned Single Judge dismissed that appeal on August 26	 1958 on the ground that as the earlier order dated March 28	 1949 passed by the Sub Judge	 Ist Class	 Delhi on the basis of the East Punjab Act had become final	 it was not open to the Custodian to reagitate the matter again after the promulgation of Ordinance No. XII of 1949 by the Governor General Surprisingly	 the learned Single Judge did not also refer to Ordinance No. XXVII of 1949 and the (Act XXXI of 340 1950) (hereinafter referred to as the 'Central Act ') which had replaced the said ordinance. Against the judgment of the learned Single Judge	 the Custodian filed an appeal in Letters Patent Appeal No. 32 D of 1958 before the High Court of Punjab. That appeal was heard by a Division Bench and it came to be allowed on December 30	 1963. The Division Bench held that by virtue of section 17 of Ordinance No. XXVII of 1949 the sale in favour of the decree holder/auction purchaser was liable to be set aside on the application made by the Custodian 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	 under which one of the decree holders had purchased the properties. This appeal by certificate is filed against the said decision of the Division Bench. Before dealing with the merits of the case	 it is necessary to state that Ordinance No. XXVII of 1949 was replaced by the Central Act i.e. with effect from April 17	 1950. Section 17 of the Central Act was substituted with retrospective effect by the Administration of Evacuee Property (Amendment) Act	 1951 (Act XXII of 1951). Section 17(2) of the Central Act read as follows: "17. (2) Where	 after the 1st day of March	 1947	 any evacuee property which has vested in the Custodian or is deemed to have vested in the Custodian under the provisions of this Act has been sold in execution of any decree or order of any Court or other authority	 the sale shall be set aside if an application in that behalf has been made by the Custodian to such Court or authority on or before the 17th day of October	 1950	 The only noticeable difference between section 17 of Ordinance No. XXVII of 1949 and section 17 of the Central Act is that the date 'August 14, 1947 ' in section 17(2) of Ordinance No. XXVII of 1949 is substituted by 'March 1, 1947 '. In other respects, there is no material difference between the provisions of Ordinance No. XXVII of 1949 and the Central Act insofar as the question which arises for consideration in this appeal is concerned. The main ground urged in support of the above appeal by the appellants of whom. appellant No. 1, Jaswant Singh is the auction 341 purchaser, is that the order dated March 28, 1949 passed by the Sub Judge, Ist Class, Delhi having become final, it would operate as A a bar to any enquiry into the application which had been made by the Custodian after the promulgation of Ordinance No. XII of 1949 and Ordinance No. XXVII of 1949. This ground is based on the principles underlying section 11 of the Code of Civil Procedure, 1908. That section provides that no court shall try any suit or issue in which the 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 competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation IV to that section provides that any matter which might or ought to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. It is well settled that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision. In the instant case there is no dispute that the parties and the properties involved in the proceedings in which the order dated March 28, 1949 was passed and in the proceedings commenced by the application which has given rise to this appeal are the same. The only point of difference between them however is that whereas in the former proceedings, the Custodian had relied upon the provisions of section 8 of the East Punjab Act, in the present proceedings reliance is placed by him on the provisions of section 17(2) of Ordinance No. XXVII of 1949 and section 17(2) of the Central Act. Section 8 of the East Punjab Act which was relied on by the Custodian in the earlier proceedings stated that all subsisting attachments of evacuee property effected after December 31, 1947 under orders of a Civil or Revenue court or an officer or other authority would cease to have any effect, and all sales, leases or other forms of alienation by any court, officer or authority of such property effected after the above mentioned date were liable to be set aside at the instance of the Custodian on an application filed before the court, officer or authority concerned. The application made by the Custodian under that provision was dismissed by the Sub Judge, Ist Class, Delhi as already mentioned on the 342 ground that the attachment of the properties involved in the case had A been effected prior to December 31, 1947 and, therefore, the sale of those properties was not assailable under section 8 of the East Punjab Act. The next application with which we are concerned in this appeal was filed by the Custodian on August 24, 1949 before the court. By then Ordinance No. XII of 1949 had been promulgated. Ordinance No XXVII of 1949 which came into force on October 18, 1949 during the pendency of that application had repealed and replaced Ordinance No. XII of 1949, and therefore the Sub Judge, Ist Class, Delhi should have taken into consideration the provisions of Ordinance No. XXVII of 1949 on March 24, 1950 when he disposed of the said application. As mentioned earlier, the learned Sub Judge had not referred to Ordinance No. XXVII of 1949 at all in the course of his order. Sub section (2) of section 17 of Ordinance No. XXVII of 1949 was wider in its scope and content than section 8 of the East Punjab Act which arose for consideration at the time when the order dated March 28, 19l9 was passed by the court. Section 17(2) of Ordinance No. XXVII of 1949 which conferred a new right on the Custodian provided that any transfer of evacuee property under orders of a court or any other authority made after the 14th day of August, 1947 was liable to be set aside if an application was made to such court or authority by or at the instance of the Custodian within three months from the commencement of the Ordinance. A comparison of section 8(2) of the East Punjab Act with section 17(2) of Ordinance No. XXVII of 1919 would show that whereas section 8(2) of the East Punjab Act affected sales of properties by court which had been attached after December 31, 1947, section 17(2) of Ordinance No. XXVII of 1949 affected any transfer of evacuee property under orders of a court or any other authority made after the 14th day of August, 1947. In the present case the properties in question had been attached by the court on October 9, 1947 which was a date anterior to December 31, 1947 which was the crucial date for purposes of section 8(2) of the East Punjab Act but subsequent to August 14, 1947 which was the crucial date for purposes of section 17(2) of Ordinance No. XXVII of 1949. It was not, there fore, open to the Custodian to contend in his application which was disposed of by the order dated March 28, 1949 that the court sale was liable to be set aside The cause of action for making that claim arose only after Ordinance No. XXVII of 1949 was passed. A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the 343 relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in the other words to the media upon which the plaintiff or the applicant asks the court to arrive at a conclusion in his favour. 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 the instant case but for the new law contained in section 17(2) of Ordinance XXVII of 1949 the Custodian would not have been able to question the court sale in question. Since the Custodian could not, therefore, have asked for the relief which he claimed in the application which has given rise to this appeal before March 28, 1949 it cannot be said that the present proceedings are barred by the rule of res judicata, even though in both the proceedings the prayer made by the Custodian was that the sale of the properties in question should be set aside. We are, therefore, of the view that the Division Bench was right in holding that the present proceedings were not barred by the rule of res judicata. One other submission made on behalf of the appellants in this case is that no application had been made by the Custodian relying expressly upon section 17(2) of Ordinance No. XXVII of 1949. There is no substance in this submission because we find that there is a specific reference to the said provision in the application dated December 12, 1949, filed before the court of the Sub Judge, Ist Class, F Delhi on December 15, 1949. This application is referred to by the Sub Judge at the commencement of this order dated March 24, 1950 while the application dated August 24, 1949 is referred to in the third paragraph of that order. It appears from that order that the Sub Judge had consolidated both the applications and disposed them of together by the same order though he failed to apply the provisions of section 17(2) of Ordinance No. XXVII of 1949. Hence it cannot be accepted that no fresh application had been made after Ordinance No. XXVII of 1949 had come into force. In the result, we affirm the decision of the Division Bench of the High Court of Punjab and dismiss the appeal. 344 We, however, make it clear that the setting aside of the court sale does not come in the way of any other remedy open to the decree holders in the instant case to recover the amount which may be due to them under the decree from the judgment debtor or the Custodian or any other authority. Any proceedings that may be initiated by the decree holders for realising the amount due to them, shall be disposed of by the concerned authority in accordance with law. There will be no order as to costs. N.V.K. Appeal dismissed. 
2992	Appeal No. 2149 of 1968. Appeal from the judgment and order dated January 3, 1967 of the Rajasthan High Court in D. B. Wealth Tax Reference No. 6 of 1963. section Mitra, O. P. Malhotra, R. N. Sachthey and B. D. Sharma, for the appellant. M. C. Setalvad, H. P. Gupta and B. R. Agarwala, for the respondent. The Judgment of the Court has delivered by Hegde, J. This appeal by certificate arises out of the wealth tax assessment of the assessee respondent, an individual, for the year 1959 60, the corresponding valuation date being* March 708 31, 1959. The assessee is the, wife of Maharaja of Jaipur. On September 9, 1953, the Maharaja made a settlement at London. Under the deed of settlement, he appointed Sir Harold Augustus Warner as the trustee of the property detailed in the deed of settlement. The settlement is an irrevocable one and the properties mentioned in the schedule to the trust deed stood transferred to the name of the trustee. The trust deed provides that the trustee should pay to the assessee during her life time 50 per cent of the income of the trust fund. The question arose whether the assessee can be held to have any share in the corpus of the trust and whether the same can be brought to tax under the provisions of the Wealth Tax Act, 1957 (to be hereinafter referred to as the Act). The Wealth tax Officer came to the conclusion that the assessee 's interest in U.K. Trust amounting to Rs. 15,75,694/ plus the income tax reserve thereon Rs. 1,75,401/have to be included in the assessee 's total wealth. This decision was confirmed by the Appellate Assistant Commissioner in appeal. Thereafter the assessee took up the matter in second appeal to the Income tax Appellate Tribunal. The Tribunal for reasons set out in paragraphs 6 to 10, 12 and 13 of its order held that the assessee did not get any life interest in the corpus but it held that her interest was an interest which was an asset under the Act, but for section 2 (e) (iv) of the Act. In other words, it held that the assessee had only a right to get annuity from out of the trust fund and as such her right is exempt from wealth tax in view of section 2 (e) (iv) of the Act. In the view it took, the Tribunal considered that it was not necessary to ascertain the proper and correct method of valuation of the assessee 's right. It directed that if and when its conclusion on the interpretation of the clauses were set aside, the appeal should be posted again before it for further hearing for ascertaining the correct method, of valuation. At the instance of the Department, the Tribunal stated the case and referred the following two questions to the High Court of Rajasthan for its opinion. (1) Whether on a proper construction of the deed of settlement the assessee has any interest in the corpus of the deed of settlement. (2) Whether in the facts and circumstances of this case	 the right of the assessee derived under the deed of settlement is exempt from wealth tax by virtue of the provisions of sec. 2 (e) (iv) of the Act. " A Division Bench of that High Court answered the first question in the negative and the second question in the affirmative both against the Department. The High Court held 709 1. that the assessee was not given any interest in the corpus of the	 property. that the income that the assessee was receiving on account of the 15/30 parts of the trust fund was in the nature of an annuity	 and 3. that the terms and conditions relating to the assessee 's right to annuity preclude commutation of any portion thereof into a lump sum grant. The only question that arises for decision in this appeal is whether the share of income to which the assessee is entitled to receive under the trust deed executed by her husband can be considered as annuity within the meaning of that expression in section 2 (e) (iv). If it is considered as an annuity	 there is no dispute that the	 terms and conditions relating to the assessee 's right relating to annuity precluded commutation of any part thereof into a lump sum grant. Therefore all that we have to see is whether the income received by the assessee was an annuity or an aliquot share in the income arising from the fund. As seen earlier	 the High Court as taken the view that the income in question was an annuity. In arriving at that conclusion	 it has referred to various decisions of the English courts as well as the courts in this country. But in view of the two recent decisions of this Court	 it is not necessary for us to examine those decisions. In Ahmed G. H. Ariff and Ors. vs Commissioner of Wealth tax(1) one of us (Grover	 J.) speaking for the Court observed that the right of a beneficiary to receive an aliquot share of the net income of properties comprised in a wakf alal aulad created by a Muslim governed by the Hanifi school of Mohamedan law is "property" and is covered by the definition of "assets" in section 2 (e) of the Wealth Tax Act	 1957 and the capitalised	 value of that right is assessable to wealth tax. In Commissioner of Wealth Tax	 Gujarat vs Arundhati Bal krishna	 (2) this Court accepted as correct the distinction brought out between an annuity and an aliquot share in the income of a fund by Kindersley V. C. in Bignold vs Giles ( 3) Therein the learned judge stated the law thus : "An annuity is a right to receive de anno in annum a certain sum; that may be given for life	 or for a series of years; it may be given during any particular period or in perpetuity and there is also this singularity (1) (2) (3) ; 113 Revised Reports 390. 710 about annuities	 that although payable out of the personal assets	 they are capable of being given for the purpose of devolution	 as real estate; they may be given to a man and his heirs	 and may go to the heir as real estate; so an annuity may be given to a man and the heirs of his body	 that does not	 it is true	 constitute an estate tail	 but that is by reason of the Statute De which contains only the word 'tenements ' and ' an annuity	 though a hereditament is not a tenement	 and an annuity so given is a base fee. " Proceeding further the learned judge observed "But this appears to me at least clear	 that if the gift of what is called an annuity is so made	 that	 on the face of the will itself	 the testator shows his intention	 to give a certain portion of the dividend of a fund	 that is a very different thing; and most of the cases proceed on that footing. The ground is	 that the court construes the intention of the testator to be	 not merely to? give an annuity	 but to give an aliquot portion of the income arising from a certain capital fund." Applying the principles laid down in these decisions	 we have now to see as to what was the nature of the right conferred on the assessee under the trust deed ? The trust deed starts by saying that "the settlor is	 absolutely entitled to the investments specified in the Schedule hereto (hereinafter called "the Scheduled Property")" and that he is desirous of making an irrevocable settlement of the Scheduled Property for the benefit of his wife (the assessee) and his four sons. One of the clauses in the deed says that "the settlor has accordingly transferred( or intends forthwith to transfer the Scheduled Property into the name of the Trustee to be held by him upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the same." "The Scheduled Property and any other invest ments or property which may from time to time be transferred to and accepted by the Trustee as additions	 to the Scheduled Property and any other capital moneys	 which may be received by the Trustee in respect of the 711 trust premises and the investments and property for the time being representing the same respectively are together called "the Trust Fund". From this clause	 it is clear that the "Trust Fund" is not a fixed sum. It is capable of being augmented in several ways. At the time of creation of the trust	 the only assets mentioned in the schedule to the trust deed was pound 300	000 31 War Loan. But as seen earlier this fund was capable of being augmented. Clauses of the trust deed which are relevant for our pre sent purpose are clauses 2	 3	 4(1) and 7. They read: Clause 2 : The Trustee shall stand possessed of the scheduled property and any other investments or property which may from time to time be transferred to and accepted by the Trustee as aforesaid UPON TRUST that the Trustee may either allow the same to remain actually invested so long as the Trustee thinks fit or may at any time or times at his discretion sell call in or convert into money the same or any part thereof and shall at his discretion (but subject to the restriction contained in clause 9 hereof) invest the moneys produced thereby and any other capital moneys which may be received by him in respect of the trust premises in the name or under the legal control of the Trustee in or upon any investments hereby authorised with power at his discretion to vary or transpose any investments for or into others of any nature hereby authorised. " Clause 3 : The Trustee shall divide the Trust Fund into thirty equal parts and shall stand possessed of such parts and the income thereof respectively upon the trusts and	 with and subject to the powers and provisions herein after declared and contained concerning the same. Clause 4(1) : THE TRUSTEE shall stand possessed of fifteen such parts of the Trust Fund UPON TRUST to pay the income thereof to the wife during her life and after her death shall hold the said fifteen such parts of the Trust Fund and the income thereof Upon the same powers and provisions as are hereinafter declared and contained concerning the share in the Trust Fund which is hereinafter directed to be held in trust for the said 712 Maharaj Kumar Jagat Singh or as near thereto as cir cumstances will admit. Clause 7. NOTWITHSTANDING the trusts hereinbefore declared the Trustee if he in his absolute discretion thinks fit may at any time by writing under his hand declare that the whole or any part of the share (whether original or accruing) in the Trust Fund to the income whereof any Beneficiary shall then be entitled in possession or any property appropriated in or towards the satisfaction of such share shall thenceforth be held IN TRUST for such Beneficiary absolutely and thereupon the trusts hereinbefore declared concerning such share or the part thereof or the property to which such declaration relates shall forthwith determine and the Trustee may at any time thereafter transfer such share or the part thereof or the property to which such declaration relates to such Beneficiary absolutely." From these clauses it is clear that the intention of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither the trust fund was fixed nor the amount payable to the assessee was fixed. The only thing certain is that she is entitled to a 15/30 shares from out of the income of the trust fund. That being so	 it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fund. Mr. Setalvad	 learned Counsel for the assessee contended that during the year with which we are concerned	 there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth tax	 we would be justified in holding that the amount receivable by the assessee in the year concerned was an annuity. We see no force in this contention. The question whether a particular income is an annuity or not does not depend on the amount received in a particular year. What we have to see is	 what exactly was the intention of the Maharaja in creating the trust. Did he intend to give the assessee a pre determined sum every year or did he intend to give her an aliquot share in the income of a fund ? On that question	 there can be only one answer and that is that he intended to give her an aliquot share in the income of the trust fund. As income cannot be an annuity in one year and an aliquot share in another year. It cannot change its character year after year. From the facts found	 it is clear that the assessee has a life interest in the trust fund. 713 For the reasons mentioned above	 we allow this appeal	 set aside the judgment of the High Court and discharge the answers given by the High Court to the questions referred to it by the Tribunal and in its place we answer those questions in favour of the Department. The Commissioner is entitled to his costs of this appeal from the respondent	 V.P.S. Appeal allowed.

Summary:
Two brothers entered into an agreement to sell their interest in an Ice Factory situated at Rawalpindi and received the advance money. As the vendee failed to complete the transaction	 a suit was filed by the brothers for specific performance of the agreement and for recovery of the balance consideration. The vendee remained exparate. A decree was passed by the Sub Judge for the balance of the consideration money and the vendee was given liberty to apply to the court to get a regular sale deed. During the pendency Or this suit the interest of one of the brothers was assigned in favour of the appellant who was impleaded in the suit. The vendee left India and was declared an evacuee. A Receiver was appointed for the properties of the vendee some of which were attached on October 9	 1947 and put to sale in execution	 but at the instance of the auction purchaser who became apprehensive on account of the judgment debtor being an evacuee	 the sale was got set aside on July 10 1948. On July 17	1944 an application was filed by the Custodian of Evacuee Property under the Fast Punjab Evacuees ' (Administration of Property) Act 1947 claiming that the attached properties were evacuee properties and under section 8 were exempt from attachment. This application was dismissed on July 19	 1948 on the ground that a Receiver was appointed by the court who was in possession of the properties	 and no step was taken by the Custodian under s.6. 332 The attached properties were again brought to sale and on this occasion the appellant purchased the properties and the sale was confirmed on October 16	 1948. The East Punjab Act having been amended in 1948	 another application was made by the Custodian under the amended section 8(2) of the Act on December 11	 1948. This application was rejected on the ground that the said provision was not applicable to court sales of property attached prior to December 31	 1947. The Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance	 1949 was promulgated on July 10	 1949. The Custodian made an application under section 15	 on August 24	 194 for setting aside the sale but this was dismissed for default on December 10	 1949. However	 during the pendency of this application another Ordinance the Administration of Evacuee Property Ordinance 1949 (Ordinance No. XXVII of 1949) was promulgated with effect from October 18	 1949. The Custodian made an application on December 12	 1949 both under order 9	 rule 9 of the Code of Civil Procedure 1908 and under s.17(2) of Ordinance No	 XXVII Or 1949 for restoration of the application dismissed for default on December 10	 1949	 and for setting aside the sale. The sub court restored the application on February 11	 1950 but after hearing the application on February 28	 1950 dismissed the same on March 24	 1950. The Custodian filed an appeal before the High Court against the order of the Sub Judge	 dated March 24	 1950. contending that the Sub Judge had erred in not considering the effect of section 17 of Ordinance XXVII of 1949	 but the appeal was dismissed	 on the ground that as the earlier order dated March 28	 1949 passed by the Sub Judge on the basis of the East Punjab Act had IB became final	 it was not open to the Custodian to reagitate the matter again after the promulgation of Ordinance No. XXVII of 1949	 The Custodian filed a Letters Patent Appeal which was allowed by a Division Bench on December 30	 1963	 on the ground that by virtue of section 17 of Ordinance No. XXVII of 1949 the sale in favour of the decree holder/auction purchaser was liable to be set aside on the application made by the Custodian and the application made by the Custodian was not barred by the rule of res judicata. The court sale	 under which one of the decree holders had purchased the properties	 was accordingly set aside. Dismissing the appeal of the auction purchaser. ^ HELD: 1. Ordinance No. XXVII of 1949 was replaced by the Central Act i.e. with effect from April 17	 1950. Section 17 of the Central Act was substituted with retrospective effect by Administration of evacuee Property (Amendment) Act	 1951. The only noticeable difference between section 17 of the Central Act is that the date August 14	 1947 ' in section 17(2) of Ordinance No. XXVII of 1949 is substituted by 'March 1	 1947 '. In other respects	 there is no material difference between the provision. In order to decide the question whether a subsequent proceeding is barred by res judicate it is necessary to examine the question with reference to the (i) forum or the competence of the Court	 (ii) parties and their representatives	 (iii) matters in issue	 (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision. [341 D] In the instant case	 there is no dispute that the parties and the properties involved in the proceedings in which the order dated March 28	 1949 was passed and in the proceedings commenced by the application which has given rise to this appeal are the same. The only point of difference; is that whereas in the former proceedings	 the Custodian had relied upon the provisions of section 8 of the least Punjab Act	 in the present proceedings	 reliance is placed on the provisions of section 17(2) of (Ordinance No. XXVII of 1949 and section 17(2) of the Central Act . [341 E F] 3. (i) The Sub Judge had not referred to Ordinance No. XXVII of 1949 at all in his order. Sub section (2) of Section 17 of Ordinance No. XXVII of 1949 was wider in scope and content than section 8 East Punjab Act. A comparison of the two would show that whereas s 8(2) of the East Punjab Act affected sales of the properties by court which had been attached after December 31	 1947 section 17(2) of Ordinance No. XXV11 of ]949 affected any transfer of evacuee property under orders of a court or any other authority made after the 14th day of August 1947. [342 C; D F] 3. (ii) In the present case the properties in question had been attached by the court on October 9	 1947 which was a date anterior to December 31	 1S47 which was the crucial date for purposes of section 8(2) of the least Punjab Act but subsequent to August 14	 1947 which was the crucial date for purposes of section 17(2) of Ordinance No. XXVII of 1949. It was not	 therefore	 open to the Custodian to contend in his application which was disposed of by the Order dated March 28	 1949 that the court sale was liable to be set aside. The cause of action for making that claim arose only after Ordinance No. XXVII of 1945 was passed. [342G H] 4. A cause of action for a proceeding has no relation whatever to the defence which may be set up	 nor does it depend upon the character of the relief prayed for the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in other words to the media upon which the plaintiff or the applicant asks the court to arrive at a conclusion in his favour. [343 A B] 5. 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 the instant case	 but for the new law contained in section 17(2) of A ordinance No. XXVlI of 1949 the Custodian would not have been able to question the court sale. It therefore cannot be said that the present proceedings are barred by the rule of res judicata	 even though in both the proceedings the prayer made by the Custodian was that the sale of the properties in question should be set aside. I343 C D]