1. The facts out of which this Second Appeal arises are not in dispute. One Subbaraya Pillai, father of 1st. defendant, died in 1918. He sold the properties mentioned in the plaint Sch'i I to the 1st plaintiff's father Roger on the 27th February, 1905, the properties mentioned in Schedule II to 4th defendant on 22nd May, 1902, and the properties in Schedule III to the predecessors-in-title of the present 3rd defendant on 21st May, 1901. The properties mentioned in Schedule IV were not disposed of by him. The present 1st defendant alleging that the sales mentioned above made by his father were not binding on him sued for partition and recovery of his share in O.S. No. 416 of 1916. He obtained a decree. That suit came up to the High Court in second appeal, and the decree in favour of the plaintiff was confirmed with some variations which are not now material. After the termination of the said litigation, the present plaintiffs, the sons of the alienee of the properties in Schedule I, have now sued for a general partition of the properties of Subbaraya. They allege that the properties left undisposed of by him were enough to be allotted to the share which the present 1st defendant is entitled to. They pray in the first instance that the whole of the properties sold to them may be allotted to the father's share and through the father to themselves, and in the alternative they pray for the allotment of other properties as substitute, if the Court holds that the properties sold to them and mentioned in Schedule I cannot be allotted to them. The District Munsif agreeing with the plaintiffs' contention gave a decree for the properties sold to them. On appeal the District Judge reversed the decree and dismissed the plaintiffs' suit on the ground that the suit as framed is not maintainable. He was of opinion that a suit for general partition by a stranger purchasing specific items of property from one of the members of a joint family should be filed before a suit by a non-alienating co-parcener for partition of the alienated item is filed and decreed, and would not be maintainable after the partial partition was decreed. In the result he dismissed the plaintiffs' suit. The plaintiffs appeal.
2. In second appeal the plaintiffs have urged their right to both the alternative prayers. The right of a purchaser to file a suit for general partition and to work out his rights and equities either by having the properties sold to him allotted to the share of the alienor or by getting other properties in substitution is not in dispute before us, and has been conceded on both sides. [Vide Aiyyagari Venkata Ramayya v. Aiyyagari Ramayya ILR (1902) M 690 . The right of a non-alienating co-parcener to file a suit for partial partition and get a decree for his share is equally settled and must now he taken as established law. [Vide Venkatachella PilIai v. Chirinayya Mudaliar (1870) 5 MHCR 166, Subramanya Chettiar v. Padmanabha Chettiar ILR (1896) M 267 and Iburamsa Rowther v. Thiruvenkataswami Naick ILR (1910) M 269 : 20 MLJ 743 We must start from the basis that these decisions were correctly decided. If in a suit for partial partition the purchaser does not defend the suit on the ground of his equity, or if his plea is disallowed, the decree must be regarded as final. It is true, as pointed out in Ramkishore Kedarnath v. Jainarayanl Ramrachpal ILR (1913) C 966, that it is competent for the Court to make the whole or any part of the relief granted in such a suit to the non-alienating coparcener conditional on his assenting to the results of a suit for general partition. In the present case no such equities were urged in the former second appeal. What was urged was that the purchaser was entitled to insist on the son suing for a general partition, not that he himself was entitled to sue for a general partition, and get the property allotted to his share and that the decree in that suit should be made conditional on the result of such a suit. Thus we have got the fact in this case that in the former suit no condition was added to the decree. In Hanmandas Ramdayal v. Vallabhdas ILR (1918) B 17 Batchelor and Kemp, JJ. added a reservation staying execution of the decree and giving three months to the defendant to file a suit for general partition. It practically amounted to making the decree conditional. The question that now arises is, what is the effect of the unconditional decree in the former suit We think that so far as the particular property is concerned, the former suit is final and makes the matter res judicata and the plaintiffs are not entitled to their first prayer. The result of the decree in the former suit is that the plaintiff in that suit gets his share as his separate property, and does not hold it as joint family property. The learned vakil for the appellants relies on two decisions. The first decision he relies on is Subba Gonndan v. Krishnamachari ILR (1921) M 449. In that case a non-alienating co-parcener sued not for partial partition but for possession of the property alienated on the ground that the sale was void. His suit was decreed. It was held that a suit for general partition by the purchaser was afterwards maintainable. It was pointed out by the learned Judges that it was not in the power of the defendant in the prior suit to convert the suit for possession into a suit for general partition. In so far as the suit for general partition beyond the specific properties sold is concerned, these observations are undoubtedly in favour of the appellants. But this case cannot be regarded as authority in their favour so far as the first prayer is concerned. The first suit in that case was a suit for possession and when the non-alienating co-parcener got a decree for the properties, it must be taken that he obtained possession of the properties on behalf of the joint family ; it cannot be said that he obtained it as his separate property. In the appeal before us the first suit was a suit for partial partition and, as we already observed, the 1st defendant obtained the property as his separate pro-perty. The second case relied on by the learned vakil for the appellants is Davud Beevi Ammal v. Radhakrishna Aiyar (1922) 44 MLJ 309. The observations of Wallace, J. particularly are in their favour. These observations seem to be obite dicta; for, on the facts of that case, the observations were not necessary. The suit for partial partition by the son was pending at the time when the suit for general partition was taken for consideration and decreed. Wallace, J. seems to have been of opinion that, where a non-alienating co-parcener obtained a decree in a suit for partial partition, he obtains the property as joint family property. This is indirectly to say that the decision in Venkatcichella Pillai v. Chirinayya Mudaliar (1870) 5 MHCR 166 and other cases allowing a suit for partial partition are erroneously decided. There is no purpose in a decree for partition if he only object of it is merely to get rid of the sale and not to divide the property by metes and bounds. So long as such a suit is permissible and the decree directs division of the property by metes and bounds, the result of the decree must be that the co-parcener gets his share as separate property. And as there is no condition or reservation attached to the former decree as was pointed out in Ramkishore Kedarnath v. narayan Ramrachpal ILR (1918) B 17 or as was done in Hanmandas Ramdayal v. Fallabhdas ILR (1921) M 449, that decree is final and cannot, be re opened in another suit. It seems to us, therefore, the matter is res judicata so far as the property sold is concerned and the first part of the appellants' contention must therefore be disallowed.
3. Coming to the second prayer, it is obvious that all the authorities and the trend of the previous discussion go to show that the suit is maintainable. It was not in the plaintiffs' power to ask for a general partition in the former suit as was pointed out in Subba Goundan v. Krishnamachari ILR (1921) M 449 The learned vakil for the respondents does not support the District Judge's judgment on this point. The result is that the second appeal must be allowed, and the case remanded for disposal according to law in the light of the above observations- Appellants will have refund of their Court-fee on the appeal memorandum. We may say that we agree with the District judge in thinking that the position of 3rd and 4th defendants is the same as that of the plaintiffs and they will be given a similar decree in this case. In the second appeal each party will bear his own costs.