Sadasiva Aiyar, J.
1. The defendant is the appellant. The suit was brought 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 so long ago as on 7th March 1896 (see decree Exhibit C), and for partition of one property (item No. 4) not included in the former suit. The plaintiff and the defendant were two of the parties to the suit (Original Suit No. 36 of 1895) in which that decree (Exhibit C) was passed, they having been plaintiff 'and second defendant' respectively in that suit. The third defendant in that suit was the Secretary of State for India represented by the Collector of Tanjore, who was in possession of some of the movables belonging to Sakharam Sahib (connected with the Tanjore Royal Family) whose properties were in dispute in that suit.
2. The lower Court has dismissed the suit as regards items Nos. 4 and 5 of the plaint A Schedule and has passed a preliminary decree, for partition of the other items Nos. 1, 2, 3, 6, 7, 8 and 9 in Schedule A. This appeal by the defendant ought, therefore, to have been confined to those items, but I find it includes (probably by mistake) all the nine items.
3. Forty-two grounds have been mentioned in the appeal memorandum, but many of the grounds are either too vague to require notice or are mere repetitions in other words of other grounds and most of them were not argued separately. I shall mention only the contentions pressed before us by Mr. Ananthakrishna Aiyar for the appellant and give my conclusions shortly upon each of them after setting out a few more necessary facts.
4. As I said, the razinama decree (Exhibit C) was passed on the 7th March 1896. Both the plaintiff and the defendant were then minors represented by their respective guardians. The relevant portions of that decree are: This Court doth order and decree that plaintiff do recover from defendants Nos. 1 and 2 one moiety with reference to good and bad soil of the immoveable properties described in Schedule A of the plaint, except the house item No. 8 that has been given to first defendant and that the second defendant' (present defendant) 'do take the other moiety...that plaintiff do further get from second defendant manse profits from this date to date of delivery in respect of the moiety in Schedule A aforementioned.' On the 11th October 1897, the plaintiff's guardian granted a receipt to the defendant's agent and it is marked Exhibit III in this case. That receipt acknowledges that the plaintiff's claim as established under the decree (Exhibit C) had been satisfied by granting, possession and otherwise to the plaintiff's guardian of his share in all the properties mentioned in that decree (Exhibit C), except one of the nine properties now in dispute and except the movables in the Collector's hands. (Item No. 4 of the present suit was, as I said before, not included in Original Suit No. 36 of 1895. Paragraph 10 of the plaint in the present suit says: 'In regard to the properties annexed to the Schedule A hereto, it was found that a division by metes and bounds was not then convenient,' (that is at the time of Exhibit III in October 1897). 'It was, therefore, agreed that the properties should be enjoyed in common by plaintiff and defendant without dividing them by metes and bounds, that the income thereof should be divided by the plaintiff and the defendant in equal shares and that the properties themselves should be divided by metes and bounds between the plaintiff and the defendant whenever the parties should desire to have such division effected.' The 15th paragraph of the plaint is as follows: Plaintiff finds it inconvenient to have the properties described in Schedule A in an undivided condition and is desirous of having them divided by metes and bounds. Plaintiff, therefore, sent a notice through his Vakil to the defendant on the 29th December 1910 calling upon him to consent to a fair division of the properties described in Schedule A by metes and bonds. The defendant has not replied to the same.' The present suit was brought on 14th December 1912, the plaintiff and the defendant both having then attained majority. One other fact might be mentioned, namely, that between 1898 and 1903 four petitions for execution of the decree Exhibit 0 were filed on behalf of the plaintiff (see Exhibits IV, VI, VII and VIII) and one on behalf of the defendant (Exhibit V) but the prayer in these execution petitions related, so far as I could see, to the moveable properties belonging to the late Sakharam Sahib which mere in the custody of the Tanjore Collector (the third defendant in the suit) and afterwards of the Tanjore Palace Receiver: These have been since divided amicably between the parties.
5. In the year 1899, Original Suit No. 68 of 1899 was filed by the present defendant against the present plaintiff for the recovery of a sum of money due on a bond executed by the plaintiff's next friend to the defendant's agent in connection with the settlement of some other suit brought by a third person against both of them. Exhibit 42 is the judgment in that case. One of the defences raised in that suit was that the bond was not enforceable till the plaintiff (then first defendant) had been put in possession of his share in all the properties. The 8th and the 10th issues in that suit were as follows: '8, Whether plaintiff's agent Veeraraghava Aiyangar granted time to Kasoba Sahib' (present plaintiff's and then 1st defendant's guardian) 'for paying up the amount of the bond till he should get possession of the 1st defendant's share of all the properties (moveable and immoveable) of Sakharam Sahib?' '10. Whether the first defendant has been put into possession of his share in all the moveable and immoveable properties of Sakharam Sahib, and if not, whether the suit is premature?'
6. The Court found that time was so granted and that that suit was premature, as the plaintiff had not been put into possession of his share of all properties mentioned in Exhibit C. The plaintiff in that suit (defendant in this suit) seems to have set up during the course of the trial of that suit, that even if his agent had agreed to give time for payment of the bond till the present plaintiff (then first defendant) was put in possession, there was an agreement about October 1897 by which the properties were to be enjoyed in common and hence, the present plaintiff must be deemed to have been put in possession of his half share and accordingly that that suit of defendant was not premature. The learned Subordinate Judge in his judgment (Exhibit 42) says: 'Besides, the alleged agreement was not put forward by plaintiff at the time of the settlement of the issues nor any reference made to the agreement in the plaint.' The Judge, therefore, found against the agreement, though no issue was directly raised about it and though it does not appear that the guardian of the present plaintiff (then first defendant) denied that agreement. The defendant now contends that by reason of the finding in Exhibit 42 against that agreement, the question whether there was such an agreement in October 1897 between the plaintiff's guardian and the defendant's guardian to hold these plaint properties in common is res judicata against the present plaintiff, who has set up that same agreement in paragraph 10 of the present plaint.
7. I think the above are the only facts which are necessary to be set out for the decision of this appeal. On these facts, several technical objections to the suit were advanced on behalf of the defendant (appellant). As egards the facts themselves they are fully established by the oral and documentary evidence in the cage notwithstanding that the truth of one of these facts, namely, the agreement between the plaintiff's guardian and the defendant's guardian to hold the plaint properties (except item No. 4) in common, was found against in the suit of 1899 (Exhibit 42).
8. I shall first deal with the question whether the finding in Exhibit 42 as to the truth of the agreement is a res judicata in this suit. It would be so (see Section 11 of the Civil Procedure Code) if the fact of this agreement was directly and substantially in issue in the former suit, if, according to explanation 8, the matter was alleged by one party and either denied or admitted expressly or impliedly by the other and if it was heard and finally decided in that suit. Having considered the judgment (Exhibit 42) carefully, I agree with the lower Court that there is nothing to show that this agreement which was put forward by the present defendant (plaintiff in the older suit of 1899) during the course of the examination of witnesses in that case was ever denied by the present plaintiff (then first defendant). The Subordinate Judge who decided that suit seems of his own accord to have thought that the agreement, if true, might be fatal to the defence in that suit, namely, that that suit was premature and as that agreement was put forward at a late stage of the litigation, he pronounced an opinion in his judgment against the truth thereof. There is nothing to show that the present plaintiff's guardian or his Vakil considered the truth of the agreement as fatal to the defence in that suit and invited the opinion of the Court on the truth or falsehood of that agreement. I would, therefore, hold, though after some hesitation, that the opinion expressed in that judgment (Exhibit 42) about the truth of the agreement is not res judicata in this suit. Even if I am wrong in the above opinion and even if that agreement is wholly left out of consideration as not available to the plaintiff, I think the plaintiff is entitled to succeed in this suit in the view I take of the real nature of this litigation. Before mentioning that view, I shall just say a few words on the other technical objections raised in the case as they were elaborately argued, though a decision on these objections also is unnecessary in my opinion. These questions can only arise if the decree of 1896 (Exhibit C) is treated as a final decree for partition.
9. Assuming that it is such a final decree, can the agreement to hold certain properties in common, whereas the decree contemplates division by metes and bounds and the award of a definite half share to the plaintiff, can that agreement be allowed to vary the decree? In Kelu Nair v. Meenakshi 21 Ind. Cas. 639; Spenper, J. and myself held that Order XXI, Rule 2, of the Code of Civil Procedure does not apply to the relief of possession of immoveables given by a decree. We relied on Sankaran Nambiar v. Kanara Kurup 22 M.k 182 which was decided on the language of Section 258 of the old Civil Procedure Code. We thought that the slight change in the language introduced by Order XXI, Rule 2, of the new Code, though it set at rest the difference of opinion whether mortgage decrees are decrees for money (and whether payments made in satisfaction of mortgage decrees should be certified), did not affect the decision in Sankaran Nambiar v. Kanara Kurup 22 M.k 182 which related to a decree for possession of immoveables. Bat I find in a more recent case decided by the learned Chief Justice and Ayling, J. in Abdul Latiff Sahib v. Bothnla Bibi Ammal 23 Ind. Cas 530 that it has been held that as the first sentence in Order XXI, Rule 2, Clause 1, refers to 'a decree of any kind', the words 'the decree' in the second sentence of that rule meant 'a decree of any kind under which money is payable', including a complex decree under which possession of immoveables is also awarded and that as regards execution of that portion also of the decree which relates to the possession of immoveable, an uncertified adjustment cannot be recognised. (The head note to the report in Madras Weekly Notes is very misleading). There is a still more recent-case (Civil Miscellaneous Second Appeal No. 11 of 1915) (Old field and Krishnan, JJ.) which, however, follows Kelu Nair v. Meenakshi 21 Ind. Cas. 639. After full consideration, I recede from the opinion expressed by me in Kelu Nair v. Meenakshi 21 Ind. Cas. 639 and adopt that found in the judgment in Abdul Latiff Sahib v. Bathula Bibi Ammal 23 Ind. Cas. 530. I am not even sure that 'the decree' in the second sentence should be one under some part at least of which money should be payable. However, this does not help the defendant in this case as Clause 3 of Order XXI, Rule 2, prevents only the Court executing the decree from recognising the adjustment and not any other Court. The Court which decided the present suit is not executing the decree in the suit of 1896 and hence it seems to me that the agreement can be recognised by it if the question of its truth is not res judicata.
10. The next objection is that as that agreement varies the terms of the decree in the suit of l896, it is invalid under Order XXXII, Rule 7, of the Code of Civil Procedure corresponding to Section 462 of the old Code, as not having been sanctioned by the Court. Order XXXII, Rule 7, Clause 2, of the Code of Civil Procedure makes such an agreement voidable against all the parties other than the minor. Each of the parties to the suit (who were both minors at the time of the agreement which took place at the end of 1897) could, therefore, avoid it as against the other. Now, I take it the defendant wishes to avoid it while the plaintiff does not wish to avoid it. It was not denied that more than three years had elapsed since the defendant attained majority when this suit was instituted. But the Privy Council has held in Sri Kishan Lal v. Kashmiro 34 Ind. Cas. 37 : 20 C.W.N. 957 that though a defendant might be barred from instituting a suit to avoid a transaction voidable against him, he could defend a suit brought against him by pleading the voidability of that transaction as against him. I am, therefore, of opinion that Exhibit C can be avoided by the defend-apt in defence to this suit. If the agreement has thus become avoided and if the decree of 1896 was a final decree for partition, I think the only remedy for the plaintiff to obtain a partition by metes and bounds was to proceed in execution of that decree, and not by a separate suit. No doubt it has been held in Madan Mohan Mondul v. Baikunta Nath Mondul 10 C.W.N. 839 and T.C. Mukerji v. Ajzal Beg 27 Ind. Cas. 694 : 37 A.k 155 : 13 A.L.J. 98 that even if a decree for partition was not executed and was allowed to be barred, a second suit for partition could be brought so long as the relationship of tenants-in-common continued between the parties. It was also held in Jogendra Nath Rai v. Baldeo Das 12 C.W.N 127 that where, by mistake, the Court decreed the final partition of only a portion of the property belonging to the parties in common, though the suit was for partition of all the properties held in common, a subsequent suit for the portion left undivided might be brought. I, however, respectfully dissent from those decisions 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 shares 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. If the decree of 1896 was a final decree, I am clear that execution of that decree is barred by the twelve years' period of limitation under Section 48 of the Code of Civil Procedure. If, however, there is a new cause of action on the agreement of 1897, assuming it to be valid, it is clear on the facts that the possession of the defendant after 1899 continued to be that of a tenant-in-common with the plaintiff. There was no assertion of adverse possession as against the plaintiff and, on the other hand, out of the common profits the defendant seems to have spent moneys on a purpose common to the plaintiff and the defendant, namely, the maintenance of a cow, calf and elephant dedicated to the idol in the famous Kamatchiamman temple at Tanjore in accordance with the agreement of 1897.
11. I shall now state briefly the true legal view which, I think, ought to be taken of this suit. I think that the decree of 1896 was only a preliminary decree so far as the partition of the plaint properties (except of course item No. 4) is concerned. I do not think that the execution petitions of 1898 and 1903 already referred to can change the character and construction of a decree. If such a construction had been made by the Court in an order passed on a contested execution proceeding that construction may, no doubt, be res judicata between the parties. But so far as the decree for partition of immoveables is concerned, no such construction seems to have been placed by the Court in any order passed on any execution petition. [See also the judgments of Old field, J., and myself reported as Srinivasa Madali v. Ramasamy Mudali 30 Ind. Cas. 380. So long as a preliminary partition decree has not been completed by a final decree, the Court is bound, on the application of any parties, to proceed with the suit to pass a final decree and such an application is not an application in execution. See the, same case of Srinivasa Mudali v. Ramasamy Mudali 30 Ind. Cas. 380 : (1915) M.W.N. 725. I think this suit might be treated as such an application to pass a final decree and the decree passed in this suit appointing a Commissioner to divide the properties Nos. 1, 2, 3, 6 to 9 and other appurtenant as orders passed in the suit of 1895 (in furtherance of the preliminary decree), that is, to obtain the necessary report, etc., from the Commissioner in view to prepare the final decree to be passed in that suit. Viewed in this manner, the lower Court's decision is right. The appeal will, therefore, be dismissed. The memorandum of objections was not pressed as regards item No. 4. As regards item No. 5, the lower Court has given good grounds for its view that its partition has been already effected by metes and bounds between the parties and it is not necessary to pass a decree for its fresh division. The memorandum of objections is, therefore, also dismissed. Costs on both sides of this appeal to come out of the estate.
12. My learned brother has mentioned at sufficient length the material facts on which this appeal is founded and I will not recapitulate them.
13. A number of contentions were raised before us on behalf of the appellant, some of which I do not think it necessary to express any opinion on. The point of res judicata was pressed by Mr. Ananthakrishna Aiyar, but I agree with my learned brother that the existence of the agreement relied on was not a point substantially in issue in the previous, case., On the facts, I am satisfied that the razinama decree was executed by the plaintiff and defendant taking joint possession of the house in question. This is to my mind, established by Exhibit G series. It, therefore, .becomes immaterial whether the subsequent agreement relied on was void as not having, been sanctioned by the Court, or whether it is voidable, only as contended by the learned Advocate-General; nor do I think it necessary to express any opinion on the very difficult question of the construction of Order XXI, Rule 2, Civil Procedure Code. I have little doubt that Rules 1 and 2 were intended by the Legislature to apply to what are known as money-decrees. But on the language used, it seems difficult to hold that the word 'decree' in Rule 2, Clause (1), can apply only to money-decrees or can be read as meaning a 'deoree to the extent of any money payable under it.' In the view I take of the facts the suit will not fee barred under' Section 48, Civil Procedure Code, by reason of more than twelve years having elapsed since the date of the original decree i.e., 7th March 1896, as in my mind a fresh' cause of action has arisen from the ouster in 19G9. I cannot accept the contention that the cessation of occupation by the agent for the plaintiff and defendant in 1899 and the subsequent failure to pay any portion of the proceeds of the rent of the house from that date amounts to a clear and unambiguous assertion of a right to sole ownership by the defendant, in view of the fact that there was an original and continuing liability of the plaintiff to pay his share of the expenses of Upkeep of the animals for whose maintenance the rent was, in fact, applied, although the agreement under which it was done might have been void. I would, therefore, treat this suit as one for recovery of possession of the half share from which the plaintiff has been ousted, by a partition by metes and bounds, treating all necessary amendments in the plaint as made. In this view I would dismiss the appeal with costs to come out of the estate.
14. With regard to the memorandum of objections, I see no reason to think that the house was pot properly divided originally and in that view the memorandum of objections fails and should be dismissed with costs to come out of the estate.