1. It is not easy to understand on what principle the lower Courts have dealt with this case. As brought by the plaintiffs, it was a suit founded on an agreement of partition (Exhibit 3) to obtain a specific portion of property thereby grafted to them, and which, they alleged, they had enjoyed up to 1873. The Subordinate Judge, for some reason which does mot appear; either in his judgment in the proceedings, treated the suit as one for a general partition; and he ordered the property at Mahim, Savre, Varkhunti, Chintuchapada, Devkhop, and Vadhio to he partitioned and the plaintiffs to take possession of a moiety, and this notwithstanding the allegations of the defendants and his own finding that both parties held exclusive possession and were owners of separate parts of the property. The Assistant Judge, on appeal, went still further; for he ordered that the immoveable property of the family, situated in Bombay, be also brought into the suit and divided equally. Thus the final decree has been passed on a totally different cause of action to that get out in the plaint. The prayer there was for possession of certain specific property on the allegation of a partition and separate enjoyment and subsequent ouster; the decree awarded a general division of property on the supposition that the whole was joint.
2. It is the plaintiffs only who have appealed; and it is conceded in argument that, as the case now presents itself, the decree will stand good if partition is not proved, but that if partition is proved the decree must be reversed and the case remanded for a new trial on the cause of action alleged by the plaintiffs themselves, The Exhibit ii, the memorandum of partition relied on by the plaintiffs as found to be proved by the Subordinate Judge, who further held that the parties were bound by its terms. We do not there fore understand the grounds on which he is of opinion that it might be left out of sight in this suit. Still less do we understand why he says that no matter in issue in the present suit has any reference to the status of the family at the time at which Exhibit No, 3 was executed, i.e., in 1864. The Assistant Judge was of opinion that the document did not purport to make an actual partition at the time, but that it professed only to bind the descendants of the parties in case they should wish to separate. Such an agreement, he says, between two members of an undivided family cannot bind their descendants living at the time. We think th t the Assistant Judge has misunderstood the terms and the effect of the document in question. To constitute a partition there need not be an actual partition by metes and bounds. 'It is now recognized that all which would be evidence of an assent or expression of will in other cases, would be equally so in a case of partition, and that the expression of will, whether immediate or implied, is the sole criterion of division West and Buhler (3rd ed.) p. 681.
3. The question, however, appears to us really to be res judicata, because we find that in a former suit between the present parties the document was put in evidence, and it was held that by it a partition was proved to have been effected. The reason that the Assistant Judge gives for arriving at a contrary conclusion, namely, that what does not appear on the face of the decree in the former suit is not res judicata, and that the decree is binding only as to the portion of land formerly in suit, cannot be accepted as sound. No attempt to support this view of the case on the first ground relied on by the Assistant Judge was made by the learned Counsel for the respondents; and it is quite clear that, where the decree depends on an issue, the finding on that issue is binding. 'It is the matter in issue, not the subject-matter of the suit, that forms the essential test of res judicata'--Pahlwan Singh v. Risal Singh I.L.R. 4 All. 55 ; see also Nirman Singh v. Phulman Singh I.L.R. 4 All. 65 and Venktesh Tatya v. Venktesh Shastri Printed Judgments for 1881 p. 231. In the former suit (Exhibits 38, 39, 40, 41 and 42), there was a distinct issue raised as to whether partition was proved, and there was an appeal on the question whether this issue had been rightly found in the affirmative. The issue raised in the Appellate Court was, it is true, only whether the plaintiff had proved his right to receive a half of the rent of the land in dispute; but that issue was found in the affirmative only and solely because partition was held to be proved. The Joint Judge who disposed of the appeal said that there was not the least doubt that the memorandum was genuine, and decided that the property was divided between the two brothers. That indeed, was the only ground on which the issue could be found in the affirmative, and it is the only reason given in the judgment for the finding. It is argued that, as the suit was a Small Cause Court suit, the decisions therein are not final; but it is unnecessary to decide that point, for the decrees passed therein were confirmed by the High Court on special appeal made by the present defendants. The defendants cannot, therefore, now question the competency of the High Court to hear and finally decide the matter in issue--Naro Huri v. Anpunabai I.L.R. 11 Bom. 160 . It is true that in those suits the dispute was as to a piece of land other than the land now in suit, but there is no allegation that D that land was held on any different tenure to the land now in suit, j The plaintiffs there, as now, merely alleged that there had been a partition and that they had a separate share; the defendants there, as now, merely contended that there had been no partition, and that the family estate was joint.
4. The question as to the status of the family thus tried and determined is clearly binding on the parties in subsequent suits see the case of Krishna Behari Roy v. Brojeswari Ckowdranee L.R. 2 IndAp 283 where it is said that, where a material issue has been tried and determined between the same parties and in a competent Court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them. Again, in RAjah of Pittapur v. Shri Rdjdhrao Buchi Bitty a Garu(3) their Lordships of the Privy Council held that, though the subsequent suit related to different property, still the determination in the former suit, as to the fact of an adoption, was binding in the subsequent suit. In the present case it cannot be held that the decision regarding Exhibit 3 and on the question of partition affected only the particular piece of land then in dispute, and left the defendants free to urge again in any subsequent suit that the family was joint in all other respeots and as to all other property.
Partition then being proved, we reverse the decrees of both the lower Courts, and remand the case to be re-tried on the allegations and the cause of aotion set out in the plaint. In the fresh decree to be now passed, the costs hitherto incurred in the present suit will be provided for.