1. This is an appeal against the decree of the First Class Subordinate Judge of Satara, rejecting the plaintiff's suit on the ground that its subject-matter was res judicata. The claim was for the partition of the village of Saspade, alleged to be undivided ancestral property, and one of the defences raised by defendants 2 and 3 (who alone appeared) was, that there had already been decrees for the partition of some of the family property viz., the villages of Bhawadi and Pangari, in suits brought by each of them separately against their deceased brother, the plaintiff's grandfather, in the Court of the Subordinate Judge at Poona, and that the plaintiff was, therefore, not entitled to prosecute his present claim.
2. The law of res judicata is contained in Section 13, Act X of 1877; but the matter in issue in the present suit was obviously not heard and finally decided by the Poona Court, unless it can be said to have been constructively in issue in the former suits under the provisions of explanations I and II to Section 13.
3. It appears that the papers of these former suits were burned in the general conflagration of the Court's records that took place some few years ago in Poona, so that the particulars of those suits are wanting; but it is apparently admitted that each of the defendants 1, 2 and 3 did bring a suit (all three suits being in all respects similar one to another), and obtain a decree against their brother Martand, i.e. plaintiffs grandfather, somewhere about the year 1866, for the partition of the villages above named; and a copy of the plaint in the suit brought by one of them, Keshavrav, is produced, which after enumerating the property to be divided and stating the relief sought, concludes with what is styled a 'Dakhalbad clause', to the effect that he had excluded from the suit the village of Saspade in the Satara Zilla, as it was his and his brothers' (defendants 1 and 2) inam, and they had enjoyed the income and management of it by right of ownership for eighteen years, and also certain sites in certain other villages which were in their possession.
4. What was the exact nature of the defence made by the plaintiff's grandfather there is nothing to show; but it would appear from an exhibit which is a copy of the judgment in the suit, and which gives what purports to be a resume of the written statement put in by Martand, that there was no denial of the allegation in the 'Dakhalbad clause'; and although the matter then decided was only the rights of the parties in the Poona villages, it is contended for the respondent that the omission to deny the allegation as to the Satara village amounted to an implied admission of the matter so alleged, within the meaning of explanation I above referred to. For the appellant it is argued that Martand may have omitted to notice the allegation as to Saspade, in order to enable him to raise the plea of limitation, and that it is doubtful whether, having regard to Section 12, Act VIII of 1859, he was bound to raise the question as to a village in another district--Subba Rau v. Rama Rau 3 Mad. H.C. R 376 and Pattaravy Mudali v. Audimula Mudali 5 Mad. H.C. 419. But the circumstance that the village of Saspade was not within the jurisdiction of the Poona Court seems to me immaterial; and I am of opinion that plaintiff is concluded by the decision in the former suits, whether under explanation I, or explanation II.
5. The cause of action in the former suits (why three separate suits were permitted, is not clear) was the right of each plaintiff to have a partition of all the family property liable to partition; and it is indisputable that, as a general rule, a member of an undivided family cannot sue his co-sharers for his share in a portion only of family property, and that he must bring into hotchpot any undivided property in his own possession, in order that there may be a complete and final partition.
6. No doubt the rule that every partition suit shall embrace all the joint family property has been held to be subject to certain qualifications, as, for instance, where different portions of it lie in different jurisdictions, or where a portion is not available for actual partition as being in the possession of a mortgagee; but I am not aware of any authority for the proposition that a member who sues for partition of property in the hands of the defendant, can refuse to bring into hotchpot any undivided property held by himself, on the ground that it is situated within another jurisdiction. It is asked, what would be the effect if the undivided property in the possession of the plaintiff were in foreign territory, but that is not the case here. It is obvious that, when a plaintiff seeks to recover a share of property in the hands of the defendant, it is necessary for the Court to decide whether, under the circumstances of the case, he is entitled to that partition; and I apprehend that no Court would decide that a plaintiff who withheld property which he might, and therefore ought to bring into hotchpot had a right to the partition of the property in the possession of the defendant. In the present case, when Keshavrav and his brothers sued the plaintiff's grandfather Martand for a share of the property in Martand's possession, the latter was bound to resist the claim upon all the grounds possible to him, and one of these grounds undoubtedly was that the then plaintiffs were in possession of undivided property which they were withholding from the general partition. The plaintiffs expressly challenged Martand with reference to the village of Saspade, and Martand having neglected to make the omission of that village a ground of defence, I think the judgment which followed involved the decision of every claim of title upon the cause of action, and must be taken between the parties as amounting to a positive adjudication of such claim. For these reasons I would confirmed the decree of the Court below, with costs.
7. In my opinion the Court below is right, and I would confirm its decree. It has been contended on the, authority of Subba Rau v. Rama Rau 3 Mad. H.C. R 376 that the suit is maintainable because the Poona Court had no jurisdiction over the village of Saspade, which is in the Satara District, and which is the subject of the present suit. Without expressing any opinion as to whether that case was rightly decided, it is very clear that it differs very much from the present case. In the Madras case the plaintiff was out of possession of property in two districts, and the Madras High Court ruled that he might sue separately in the Munsif's Court in each district, because neither Munsif's Court had jurisdiction over the property in the other district, and the plaintiff was not bound to include both properties in one suit, and apply to the High Court for sanction of the trial.
8. But in this case another rule of law comes in, viz.,) that a plaintiff suing for partition must bring into hotchpot all family property in his possession. In three former suits, three of the present defendants, brethren of the present plaintiff's grandfather, sued the present plaintiff's grandfather in the Poona Court for their Shares of the villages of Bhawadi and Pangari in the Poona District, stating that they were in possession of the village of Saspade in the Satara District, but that to it the present plaintiff's grandfather had no claim. Notwithstanding this statement in regard to Saspade, the present plaintiff's grandfather neither challenged it, nor did he claim any share of the village of Saspade in the event of being compelled to give to the then claimants their shares in Bhawadi and Pangari. It seems to me clear that if the present plaintiff's grandfather were entitled to any share in the village of Saspade., he was bound to assert his claim to it when sued for a partition of family property in the suits in the Poona Court, and the grandfather having failed to assert his claim then, I am of opinion that plaintiff cannot now make it the subject of a fresh suit.