1. There were two brothers Kishorbhai and Desaibhai. The plaintiff is admitted to be the nearest heir of Kishorbhai, and the defendant of Desaibhai. Kishorbhai left a widow Bai Kanku, who resided in the house, which is the subject-matter of this suit, until her death. The plaintiff's case is that during the lifetime of Kishorbhai and Desaibhai they affected a partition of their house property, as a result of which, the house in suit fell to the share of Kishorbhai and became his exclusive property. This was held to be so, as a fact, in the lower appellate Court. But the appellant contends that the present suit is res judicata by reason of a suit brought by Bai Kanku in 1884, for her share of the lands, which had constituted part of the joint property of the brothers Kishorbhai and Desaibhai. That point was taken in the Court of first instance and elaborately discussed. The learned Judge there came to the conclusion that the suit of 1884 did not bar the present suit; and the present appellant did not raise the point again before the learned Judge of first, appeal, so that we have not had the benefit of his opinion upon it.
2. The appellant's case it. that since Bai Kanku sued to recover her deceased husband's share in the landed property, exclusive of the houses, on the footing of Kishorbhai and Desaibhai having separated, and since the decision in that suit was against her, it must be regarded as res judicata of the whole question of partition or union. We think, however, after carefully considering all the facts of that suit, and the arguments addressed to us on behalf of the appellant, that this would be carrying the principle of res judicata too fur. In that suit Bai Kanku asked for the possession, after partition by metes and bounds, of her late husband's share in the fields, which had constituted part of the joint family property. She had alleged then as the plaintiff alleges now, that there had been an actual partition of the house property, to which effect had been given; and though no doubt it is an implication of law that where there is a partition of some part of the property carried out by metes and bounds, the interests of the divided members of the family are severed, they are thenceforward in respect of the property which is not partitioned by metes and bounds tenants in common; in practice it is quite usual to find Courts implying reunion from the mere fact of joint use and occupation of the property not actually partitioned for a long period after the alleged partition.
3. Having regard to what was actually found by the learned Judge who tried Bai Kanku's suit, to the frame of the issues and the carefully guarded language he has used in disposing of them, it appears to us that what is now substantially in issue between the parties did not necessarily then call for decision and was not in feet decided. It is quite true that there are some observations in the judgment in that suit which strongly support the appellant's allegation that had the learned Judge thought it necessary to do so, he would have held definitely that there never had been actual partition of the house property. But it appears to us that even had he held that the house property had been partitioned, and that each brother had thenceforward held his share in severally, that need not necessarily have precluded him from coming to the decision he did upon the only question he was asked to decide. What, therefore, was not directly and substantially in issue in that suit and was not necessary to be decided, cannot now, we think, fairly be held to be res Judicata against the plaintiff.
4. As this was the only point taken in appeal, we must, therefore, dismiss the appeal with all costs and confirm the decree of the Court below.