1. Both the Courts below have dismissed the appellant's suit as being barred by the decision in the previous Suit No. 15 of 1904. In that suit she set up her right as heir of her father and upon that basis claimed that an account should be taken of the partnership between her father and the present respondents.
2. That suit was dismissed as being barred by limitation under Article 106 of Schedule II to the Indian Limitation Act.
3. In the present suit she claims as heir of her father and mother, alleging that on her father's death, the mother was admitted into the partnership: and she prays for an account of both the partnerships. So far as the partnership with the father is concerned, the claim is barred as resjudicata by the decision in the previous suit. The question is whether the claim in respect of the partnership with the mother also is so barred. According to the principle of the decision in Guddappa v. Tirkdppa ILR (1900) 25 Bom. 159 : 2 Bom. L.R. 872. it would be barred, provided the appellant was aware when she filed the previous suit of the partnership with her mother. Explanation II to Section 13 of the Code of Civil Procedure provides that 'any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.' The word 'might' presupposes that the person defending or attacking in the former suit had knowledge of the matter at the time of that suit and could have made it a ground of defence or attack therein.
4. As was said by Lord Westbury, in delivering the judgment of the Judicial Committee of the Privy Council in Shrimut Rajah Vijaya Ragunandha Bodha Gooroo Swami Perayee Oodaya Taver v. Katama Natchiar of Shivganga (1866) 11 M.I.A, 50,. 'when a plaintiff claims an estate and the defendant, being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward.' What applies to a defendant defending a suit applies equally to a plaintiff attacking in it, according to the Explanation to Section 13 above quoted. So in Amanat Bibi v. Imdad Hoosen the Judicial Committee said that 'a right which a litigant possesses without knowing or ever having known that he possesses it can hardly be regarded as 'a portion of his claim.' within the meaning of ' Section 7 of Act VIII of 1859. The ground of that principle covers equally the law embodied in Section 13 of the present Civil Procedure Code.
5. Before the appellant's present claim, so far as it relates to the alleged partnership between her mother and the respondents, can be rejected on the ground of res judicata, the Court must give her an opportunity of proving that during the previous suit she was not aware of that claim. If she proves that, her present suit will not be barred by the decision in the former suit.
6. We must, therefore, reverse the decree of the Court below and remand the case for a re-hearing of the suit by the Subordinate Judge with reference to the foregoing observations. At such re-hearing the Subordinate Judge should first of all try two preliminary issues: (1) whether, as alleged by the appellant in her plaint, her mother became a. partner in the respondent's firm on the death of the appellant's father If she did become, (2) whether either at the time the former suit was filed or at any time up to the date of its disposal, the appellant was or became aware of the said partnership? If these issues are found in the appellant's favour, the suit shall be heard and disposed of on the merits. If the said, issues are decided against her, the claim shall be disallowod as being barred under Section 13 of the Coda of Civil Procedure. Costs to abide the result.
7. The learned Government Pleader, Mr. Cbaubal, who has appeared before us for the respondent, urges that the re-hearing directed hereby must be strictly confined to the mother's share in the partnership, in the event of such partnership and the appellant's ignorance of it during the previous litigation being held proved. Though the appellant's right for an account of what was due to her father as a partner is barred by the decision in the former suit and she cannot now claim an account in respect of the father's share, yet she is now claiming an account in respect of the share of totally different person as partner, that is, her mother. When the father died, the partnership between him and the respondents became dissolved by law. If the mother became a partner at his death, it was a new partnership. If when the mother became partner, the father's share- that is, whatever was due to the father as partner-was brought into hotchpot as the share of the mother's capital or otherwise, it became merged in and represented the mother's interest in the partnership. Its legal character as the father's share was lost, Because the appellant failed to have an account of that share when she claimed as her father's heir, there is no sound reason in law why she should fail to have that account now when she claims as her mother's heir, if during the former suit she had no knowledge of her mother's right. It is conceded by the learned Government Pleader that, according to the view we have taken of the question of res judicata, the appellant would be entitled to an account of the partnership between her mother and the respondents if she prove that during the former suit she was ignorant of the partnership. Now, how is an account of that partnership to be taken without taking an account also of what the mother contributed to the partnership as her share of the capital If that share came out of what was due to the father at his death, it became the mother's property, not the father's and it must form an element in the account to be taken of the new partnership, unless indeed the appellant, having been aware during the former suit of this partnership also, is now precluded by the law of res judicata from asserting her claim to it in virtue of her mother's right.