1. In this case the question is whether the present suit is sustainable for one item of what is admittedly joint family property, in view of the fact that the plaintiff has already brought a suit and obtained a decree for other items.
2. We cannot follow the learned Judge in deciding in the plaintiff's favour, on the sole ground that the property now claimed as in the possession of the 7th defendant is alleged by him to be his by purchase, and prescription, whereas in the previous suit it seems to have been referred to in the plaint as in the possession of the 7th defendant as a tenant. In either case the joint family character of the property was in question; and it was on account of that character reference to it was made before and the claim to it is made now. We cannot see how the ground on which the 7th defendant may be withholding it from the co-parcenery is material to the plaintiff's duty to have included it in the previous suit.
3. To turn to the grounds of decision adopted by the learned District Munsif, it cannot be disputed that a suit for partition of joint family property is a comprehensive ascertainment of the assets, including immoveable property, belonging to the family and the liabilities to be satisfied out of those assets. In our opinion, the contention that generally only one suit for partition will lie represents settled law. That is the only view reconcilable with the terms of Section 11, explanation 4 and Order 2, Rule 2, C.P.C. The ground, on which the plaintiff would distinguish the present case and exclude it from the purview of those provisions, is that the property dealt with in his previous suit was situated within the jurisdiction of one Court, whereas the property now in question is situated in that of another. It is no doubt the case that the first of those Courts is in the Bombay Presidency, whilst the second is in the Bellary District of this Presidency. But we have not been shown how that difference of Presidency is in any way material. The plaintiff's argument is that Sections 16 and 17 of the Code give him the option to bring either two suits in the two Courts for the property in the jurisdiction of each or one suit in whichever Court he may prefer for the whole property and that he has simply exercised his option in choosing the former alternative. That, however, takes no account of the broader principle involved in Section 11 explanation 4 and Order 2, Rule 2 or of the meaning to be attached to the expression ' cause of action ' used in them. The cause of action, as already observed, in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division, so far as its existence is known at the date of the plaint. We have not been shown any authority for holding that the principles of the provisions of the Code' last mentioned are over-ridden by those of Sections 16 and 17 or that Sections 16 and 17 are not simply the machinery provided to enable litigants with property in more than one jurisdiction to adhere to those principles. The decision quoted In re Subba Rao v. Rama Rao 3 M.H.C.R. 376, no doubt refers to the mofussil, but, as the learned Judges observed, the words of Sections 11 and 12 in the Code then in force enabled the plaintiff to sue in one Court in respect of property situated in more than one, only with the permission of the Saddar Court, the position then being identical with that which now obtains on the Original Side of the High Court, where permission is necessary before a suit can be brought in respect of property outside as well as in the original side jurisdiction. Subba Rao v. Rama Rao 3 M.H.C.R. 376, therefore and other cases relating to the Original Jurisdiction of this and other High Courts are accordingly beside the point. In Motisharain Chakravarty v. Ganesh Chandra Chakravarthy 17 Cal. W.N. 521, the property was held in common. There was therefore no question of the necessity for an exhaustive settlement of assets and liabilities, which a suit for partition of family property entails. Ram Harakh v. Ram Lal I. L. R. 38 All. 217, is based mainly on Subba Rao v. Ram Rao 3 M.H.C.R. 376 , and with all respect we differ from the learned Judges in the view we take of that case and are unable to follow them in the remainder of their judgments. In these circumstances we cannot hold that the position of the suit properties in two jurisdictions makes any difference in the application of the principle involved in Order 2, Rule 2.
4. Reliance is next placed on the mention by the plaintiff of the property now in dispute in his previous plaint, that mention being accompanied by a statement that he reserves his right to sue for it and that he will enforce that right in other proceedings. Such statements are not uncommon in plaints and are made properly and naturally, when the property in question is not immediately divisible and the plaintiff desires to put on record that he will claim it in the future. But in the case before us we have not been shown how his statement could have any effect, since he could not exclude, the application of the principle above referred to by merely saying that he would not respect it.
5. The remaining argument addressed to us in support of the lower appellate Court's decision is that the property now claimed was excluded from the previous suit in consequence of the negligence or fraud of the plaintiff's guardian. There is no such allegation in the plaint in the present suit, and none was made in the appeal to the lower appellate Court. We are not prepared to consider a new case of that description for the first time in second appeal.
6. The result is that the appeal is allowed the lower appellate Court's decision being set aside and the District Munsif's decision restored with costs throughout.