Norman Macleod, Kt., C.J.
1. The plaintiffs sued to recover possession of the properties described in Schedules C E F attached to the plaint, and mesne profits, alleging that the plaint properties formed part of a Bhag in Rahad in Waghra Taluka. The 1st plaintiff claims as the daughter of Bapu who is alleged to have become the owner of the Bhag as a survivor between himself and Desai Purshottam his first cousin. The 2nd defendant was the son of Bai Lalu the sister-in-law of the plaintiff's mother. The 1st defendant claims title to the plaint property through Desai Manor, a distant relation of Bapu, and also in virtue of a transfer from Gadbarl, the 2nd defendant. The defendants 3 to 5 claim to be in possession through Bapu's cousin Desai Purshottam, and the (the defendant claims through Desai Manor,
2. The suit was dismissed by the learned Subordinate Judge on the ground that it had been decided in a former suit, in which the 1st, plaintiff and defendants 1,3,4 and 5 were parties, that females were excluded from inheritance to this particular Bhag. That suit was brought by the transferees of Desai Manor against the present plaintiffs and others alleging that Desai Manor was the nearest male agnate and heir of Desai Purshottain and Bapu. The suit was dismissed on the ground that, whether females were excluded from the inheritance or not, Desai Manor was not proved to be the nearest Pitrai heir to Bapu. An issue was raised whether the custom of the daughter's exclusion by a Pitrai was proved to have been in existence in the Bhagdari village of Rahad. The Court held that it was proved in the case that in the Bhagdari village of Rahad the daughter was excluded from inheritance to her father's property. It must be noted that the suit was dismissed because plaintiffs claimed through Desai Manor who was not- proved to be the nearest Pitrai heir to Bapu, and, therefore, there was no necessity for a finding on the issue whether the daughter was excluded by a Pitrai in this particular Bhagdari village. It has been argued in support of the judgment of the Court below that this finding is res judicata within the meaning of Section 11 of the Code of Civil Procedure. No doubt the issue was heard and the issue was decided, but it was not finally decided, because it was not necessary for the decision which the Court came to dismissing the suit, and Bai Nathi had no opportunity of appealing against the Court's finding on that issue. In fact there was no necessity for her, even if she could have appealed against it, because she got everything which she wanted in the suit which was filed against her. We have been referred to the case of Niamut Khan v. Phadu Buddia I.L.R.(1880) Cal. 319. But that case was referred to in Thakur Magundeo v. Thakur Mahadeo Singh (1891) I.L.R. 18 Cal. 647, . The Judges there say that the Privy Council in a more recent case have expressed an opinion which is in opposition to the judgment of the Full Bench in Niamut Khan v. Phadu Buldia ILR 18806 Cal. 319. The test they applied is this: has the issue been finally decided, and they say: 'We think that the finding of the Court in the previous suit was not final, inasmuch as the decree was not based upon it, and there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded,' and that case was followed in Parbati Debi v. Mathura Nath Banerjee I.L.R (1912) . Cal. 29. In my opinion that is a correct test to apply to the question before us. If when drawing up the decree it had been declared that females were excluded from inheritance in this Bhagdari village, then it might have been urged that the matter had been finally decided, on the ground that Bai Nathi might have appealed against that decision, and had not done so. But ordinarily where a suit is dismissed nothing is stated in the decree except 'the suit is dismissed. Against that decree the defendant cannot appeal. In my opinion, therefore, the finding of the lower Court that this question was res judicata against Bai Nathi was wrong, and therefore the suit ought not to have been dismissed on that ground.
3. But it has been suggested that the suit is also liable to be dismissed as bad for misjoinder of parties and causes of action. That should never be a ground by itself for dismissing a suit. The party, against whom misjoinder is alleged, must always have an opportunity of remedying the defect, by striking out the parties who ought not to have been joined and amending the plaint, and also by making any necessary amendments so as to strike out any causes of action which ought not to have been joined. This is only a technical ground, which should never form the foundation for an order dismissing a suit, as the matter can always be put straight by directing the party who has made the original mistake to pay the costs of the opposite party incurred on account of the mistake having been made. Therefore the order dismissing the suit must be set aside and the appeal allowed with costs. The case will then go back to the lower Court to be tried on the merits under Order XLI, Rule 23, and the plaintiff must have an opportunity, if the Judge so directs, to amend her plaint.
4. I agree, and as to the point of res judicata I agree for the reasons given by me in my judgment in the case of Dawd. bhai v. Day a Rama (1918) 21 Bom. L.R. 363