1. This appeal raises a difficult question of law. The plaintiff is the apellant and the appeal is confined only to item 2 of the plaint schedule. The suit was filed for partition and separte possession of a 2/3rd share in the land. The plaintiff and defendant are sons of two, brothers Akkayya and Ramaswami. The defendant's father, Ramaswami, got himself divided from the joint family and took away his 1/4th share. The plaintiff's father died thereafter and as the plaintiff was unwilling to live jointly with the defendant, he called upon him to effect a partition of the properties and deliver to him his 2/3rd share.
As there were crops on the land at the time, a letter makred as Ex. A-1 was executed by the defendant in favour of the plaintiff. O. S. No. 318 of 1939 was filed by the plaintiff in the file of the District Munsif's Court, Repalle, for partition and separate possession of all the joint family properties. Item 2 of the plaint schedule in the present suit was included as item 8 in the plaint in O. S. No. 318 of 1939 District Munsif's Court, Repalle. The B Schedule attached to the plaint in the former suit related to the property alienated by the defendant.
The defendant contended in the prior suit that the latter, dated 20-11-1936, and marked as Ex. A--1 in the present suit was nominal one, that the plaintiff's father Akkayya gave up his interest in the joint family and was not entitled to any share in the suit properties. The trial Court having dismissed the suit, the plaintiff preferred A. S. No. 128 of 1943, before the Subordinate Judge's Court, Tenali. The appellate Court held that Akkayya did not give up any share in the family properties, that the letter dated 20-11-1936, was not a nominal share in the plaint schedule properties.
As findings were not recorded on some of the issues, the suit was remaded to the trial Court. The plaintiff filed a memo into Court that he did not press for any relief in regard to B Schedule property alienated in favour of third parties and prayed for permission to file a separate suit for recovery of a sahre in the sale proceeds from the defendant. A preliminary decree, marked as Ex. A--2 was passed by the District Munsif of Repalle on 23-8-1940.
Unfortunately, the decree didnot provide for partition of items 6 and 8, even though, as stated supra, the Subordinate Judge of Tenali held on appeal that the plaintiff was entilted to a share in all the items mentioned in the plaint schedule. The plaintiff filed an application for amendment and review on 5-7-1948, marked as Ex. B--9 and also an application I. A. No. 492 of 1948 under O. 20, R. 18 and O. 26, R. 14, marked as Ex. B--7 as Ex. B--7 that if 2/3rd share in item 8 was not given to him hemight at least be awarded Rs. 2,400/- as the value of that share. As the plaintiff did not pay court-fee on the review applications, it was rejected on 6-8-1948. The other application I. A. No. 492 of 1948 wasnot pressed as the review application had been rejected.
The present suit O. S. No. 98 of 1948 was filed before the Subordinate Judge, Tenali, for partition and recovery of a 2/3rd share in respect of item 2 (corresponding to item 8 of A schedule in the priior suiut). The question that arises for consideration is, whether the plaintiff is not entilted to maintain the suit for partition and recovery of his 2/3rd share by reason of the proceedings in the prior suit O. S. No. 318 of 1939, District Munsif's Court, Repalle.
2. It might be pointed out that the defendant who claimed item 2 as the self-acquired property did not adduce any evidence on tht question and so issue No. 1 was decided against the defendant, respondent herein. The facts narrated above establish beyond doubt that item 2 is joint family property in which the plaintiff is entitled to 2/3rd share and the defendant acknowledged the plaintiff's right in the letter Ex. A--1 dated 20-11-1936. It is also clear that the Subordinate Judge, on apeal, upheld the plaintiff's claim in regard to item 8 and that, by mistake, the preliminary decree did not provide for partition and separate possession.
I may however point out, at this stage, tht the District Munsif of Repalle allowed the amendment application filed by the plaintiff to include item 6 which was similarly left out in the preliminary decree -- vide Ex. B--11 and B--12. The Court below has also found on the facts that item 8 was omitted from the preliminary decreeby mistake. The plaintiff who was examined in the case as P. W. 1 deposed as to the circumstances under which the mistake crept in the preliminary decree.
The defendant did not go into the witness box and suggest any reasons why relief was not given to the plaintiff in respect of item 8. I accept the evidence of the plaintiff. I have no doubt in my mind tht the omission to include item 8 in the preliminary decree was the result of a pure mistake. The amendment application in respect of item 8 oiught to have been allowed, as in the case of item 6 and no court-fee as for review ought to have been demanded.
3. The Subordinate Judge of Tenali held that the present suit is barred by res judicata by reason of the proceedings in O. S. No. 318 of 1939, district Munsif's Court, Repalle. Mr. K. Kotayya, the learned Advocate for the appellant, contended that the finding on the question of res judicata was unsustainable. He urged that if by mistake or by consent of the parties, a partition is effected of only some of the properties, a subsequent suit for partition of the other joint properties is maintainable.
He strongly relied on the decision in -- 'Jogendra Nath Rai v. Baladeo Das', 35 Cal 961 (A), in support of his contentioin and this decision supports him. What happened in that case was that the preliminary decree provided for a partition; but by mistake of the parties to the litigation, which was shared by the Commissioner, the portion in dispute in the subsequent suit was omitted from the report and therefore there was no final decree in respect of that property/
Reference was made therein to the Privy Council decision in -- 'Chidamabaram Chettiar v. Gauri Nachiar', 6 Ind App 177 (PC) (B), for the proposition that the mere defintion of the shares of the joint family does not amount to partition of the property though such determination may effect a severance of the joint family. The deicison in -- 'Barness v. Boardman', 157 Mass 479 (C), was followed. The following passage sets out the proposition adumbrated by the Bench and is as follows:
'We must consequently, affir, without hesitation the doctrine that, although a co-owner cannot enforce a partition of a part only of the commoin lands leaving the rest undivided, and, although the entire property must be included in the partition, yet, if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by the order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners.
The conclusion is, therefore, irresistable that the effect of the decree in the partition suit was to leave untrouched the joint title and possession of the parties and tht the present suit for recovery of joint possession may well be maintained.'
A similar question came up for consideration before the Madras High Court in -- 'K Venkataswamy v. Baligadu, AIR 1917 Mad 761 (D). The head-note neatly sets out the point decided and is as follows:
'In a suit for partition between a father and his son a certain mortgage bond was left out of account as worthless. Subsequently, the father brought a suit on the mortgage-bond and it was pleaded that the plaintiff and his son were not divided in respect of the properties covered by the mortgage bond and that the son was, therefore, a necessary party:
Held, per Napier J., that, all the properties of the family not having been included in the partition suit, only partial partition had taken place and that therefore, the property covered by the mortgage bond remained joint family property.
Per Sadasiva Iyer J., that a complete partition having taken place between the father and the son, the latter was not a necessary party to the suit on the mortgage bond.'
At page 762, Napier J., followed the decisioin of the Calcutta, High Court in -- 'Jogendranath Rai v. Baldeo Das', (A). Though Sadasiva Iyer J., did not specifically refer to this decision he held as follows:
'It follows that after such a partition, none of the parties to it holds any of the properties (till then held jointly) along with any other party, unless the partition agreement or the partitioin award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-conlcusion of some of the property at the division ............... (except on the ground of accident, mistake of fraud, therefore, there cannot be second partition'.
(4) Mayne sets out the law in his treatise on Hindu Law (11th Edition) at page 567 as follows:
'Where at a partition intended to be final some part of the property has been overlooked or fraudulently concealed, but is afterwards discovered, it will be the subject of a like distribution among the persons who were parties to the original partition, or their representatives'.
The decision relied on against the appellant is that reported in -- Sethurama Sahib v. Chotta Raja Sahib', AIr 1918 Mad 751 (E). The question that arose was as to whether a suit was maintainable for partition of a few of the properties left undivided between the plaintiff and the defendant, though a decree for partition of the plaint properties and several other properties had been passed earlier. Sadasiva Iyer J., held that as the preliminary partition decree had not been completed by a final decree the Court was bound on the application of the parties, to proceed with the suit to pass a final decree. He treated the suit as such an application to pass a final decree.
In the course of his judgment, he referred to the decision of the Calcutta High Court in -- 'Jogendra Nath Roy v. Baladeo Das', (A), and observed as follows:
'I, however, respectuflly dissent from those decisioins and hold that the cause of action for partition is one and the same and once it has merged into a preliminary decree and into a final decree which effected partition by metes and bounds and awarded possession of particular share to the parties, the plaintiff cannot have a second suit for partition as if the tenancy-in-common gave rise every day (even after the final decree) to a new cause of action'.
Napier J., who delivered a separate Judgment did not refer to the decisioin of the Calcutta High Court which he previously followed and which according to him in Air 1917 Mad 761 (D), laid down 'the true proposition', but merely expressed his concurrence to treat the suit as an application for the passing of the final decree. Sadasiva Iyer J., did not refer to his earlier judgment in AIr 1917 Mad 761 (D), wherein he expressly observed that a second suit might be maintainable where some of the properties were not included, by accident, mistake or fraud. Moreover there is no discussion in his judgment in what respects, the well-considered judgment in 35 Cal 961 (A), is wrong or opposed to principle.
(5) As stated supra, I find it difficult to reconcile the decision in AIR 1918 Mad 751 (E), with the earlier decision of the same Bench in AIR 1917 Mad 761 (D). As the learned Judges in AIR 1918 Mad 751 (E), treated the suit as an application for the passing of a final decree in the earlier suiut, it was not really necessary for them to consider the correctness of the decision of the Calcutta High Court in 35 Cal 961 (A). Moreover when there is a conflict between two Bench decisions of the Madras High Court, it is open to me, as stated by Salmond in his book on Jurisprudence (10th edition) at page 189 to prefer and follow the Bench decision which is in acordance with justice and legal principles.
I prefer to follow the earlier judgment in AIR 1917 Mad 761 (D). In -- 'Subramaniam v. Lakshminarasamma', AIR 1927 Mad 213 (F), Devadoss J., has also taken a view, differing from that of Sadasiva Ayyar J., in AIR 1918 Mad 751 (E). Moreover the decision in -- 'Abhirami Ammal v. Challammal', AIr 1938 Mad 287 (G), is in accordance with the principle laid down in 35 Cal 961 (A). What was held in that case was that a subsequent suit for partition was maintainable and was not barred by Res. Judicata, if the parties agreed not to take advantage of the earlier decree for partition and had continued to be in joint possesson of the properties.
(6) Moreover the rule laid down by Sadasiva Ayyar J., in AIR 1918 Mad 751 (E), may not apply to the facts of the present case. According to the learned Judge, the cause of action for partition is one and the same and once it has merged into a preliminary decree and final decree, a second suit for parrtition will not lie. That was also the view taken in -- 'Basavana Gowd v. Doddalingappa', AIR 1923 mad 584 (H), if the suit related to a partition of joint family property.
Bur in -- 'Pakkiri Kanni v. Manjoor Saheb', AIR 1924 Mad 124 (I), it has been held that a suit for partrition of common properties and not joint properties is not liable to be dismissed on the ground that the suit did not include all the common properties avilable for partition. This principle was followed in -- 'Moidin Kutti v. Mariamumma', AIR 1921 Mad 404 (J), and thelearned Judges observed as follows:
'If the property is not joint family property and the parties are not coparceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy'.
So the rule applicbale to the case of properties held by tenants-in-common is different from the rule applicable to partition of joint family property as between coparceners. On the facts of the present case, I find that a division in status between the plaintiff and defendant was effected as evidenced by Ex. A-1 and so they were only in the position of tenants-in-common. If so, the principle laid down by Sadasiva Ayyar J., does not at all apply to the facts of this case.
(7) The learned Advocate for the respondent relied upon the decision of the Privy Council in -- 'Nalini Kanta v. Sarnamoyi Debya', AIR 1914 PC 31 (K). I do think that it governs the facts of the present case. What was held in that case was that if an error was made in the partitioning of properties, the remedy was to take appropriate proceedings in that suit to correct that error. It does not apply to a case where, by msitake, partition was not at all decreed in respect of some of the items.
(8) Reference was next made by Sri G. Venkatarama Sastry, the learned Advocate for the respondent, to a number of decisions bearing on the interpretation of O. 2, R. 2, Civil P. c.; but I do not think it is necessary to refer to those cases as no objection is reaised tht the present suit is barred by the terms of O. 2, R. 1, Civil P. C. The decision of the Supreme Court in -- 'Sankar Sitaram v. Balakrishna Sitaram', : 1SCR99 (L), only related to a question as to how for a compromise decree operated as Res Judciata and it has, therefore, no bearing on the question to be decided in this appeal
Reliance was placed by the learned Advocate for the respondent on the decision in -- 'Kachu v. Lakshmansingh', 25 Bom 115 (M), and 'Sreekisto Biswas v. Joy Kristo Biswas', 24 WR 304 (N), in support of the proposition that the plaintiff is bound to raise every title on which he can succeed and to obtain a decision upon every part of his case and tht if it be found that any part of the case which he made has been neglected by the Court which tried the suit, he is at liberty to bring a fresh suit in respect of such party.
Those decisions are not applicable as item 2 in the present suit was included as item 8 in the prior suit.Mr. K. Kotayya, the learned advocate for the appellant relied on the decision in -- 'Gouri Sankar v. Gurupada Haldaar', AIR 1931 Cal 511 (O), in support of the contention that where a decree is silent as regards the claim over certain property, it does not mean that the claimant can never lay any claim in respect of the proprty agian. In -- 'Abdeali v. Taiyab Ali', AIr 1951 Nag 355 (P), it was held that:
'Where the Court being under a misapprehension as to the actual relief claimed by the party did not apply its judicial mind to this part of the party's claim, its omission to grant that particular relief cannot, in law, operate as Res Judicata'.
The two decisions referred to above support the conclusion that the omission to grant relief in respect of item 8 does not operate as Res Judicata.
9. Apart from the decisions referred to supra, I am inclined t take the view that the terms of S. 11, Civil P. C. support the appellant's case. Under S. 11, Civil P. C. the matter in issue will constitute Res Judicata only if it had been heard and finally decided by such Court. The judgment of the Subordinate Judge, on appeal, in the prior suit clearly shows that the question as to whether all the iterms comprised in the plaint in the prior suit constituted joint family properties liable to devision or not, was decided in favour of the appellant.
The Judgment, therefore, precludes the defendant-respondent herein from contending that item 2 is not joint family property or that the plaintiff is not entitled to a 2/3rd share therein. The whole difficulty as pointed out by the Court below no doubt arises by reason of the fact that in the preliminary decree, no relief was granted for partition of item 8 by mistake. Is it to be held that by reason of the terms of Explanation V as no relief was expressly granted by the decree in regard to item 8, though it was claimed in the plaint, that it should be deemed to have been refused?
Such a construction would be to ignore the judgment of the Subordinate Judge who held in clear and unequivocal terms that all the plaint schdule properties were joint family properties in which the plaintiff had a share. So, in my opinion, the Court below erred in holding that the present suit is barred by Res Judicata.
10. The last question that reamins to be considered is whether by rejection of the review application, the plaintiff is precluded from maintaining the suiut. I do not think that the order of rejection on the review application operates as Res Judicata, as it was not rejected on the merits but only for non-payment of court-fee. Moreover, it has been held in -- 'Srish Chandra v. Triguna Prosad', 40 Cal 541 (Q), that an application for reveiw is not a suit and a decision of a question arising in an application for review cannot operate as Res Judicata.
The decision in -- 'T. Veeramma v. T. Palur Subbamma', 5 Ind Cas 119 (Mad) (R), is not applicable to the facts of the present case as the question arising for decision in the suit was adjudicated in the amendment application by the High Court at the prior stage by holding that there was no discrepancy between the judgment and decree so as to warrant any amendment.
11. In the result, the decree of the trial Court is set aside and the appeal is allowed; but, in the circumstances, I direct the parties to bear their own costs throughout.
12. Appeal allowed.