R. Bhattacharya, J.
1. This is an appeal under the Letters Patent against the judgment and the decree passed by one of our learned brothers, A. K. Sinha, J. in a first appeal reversing the judgment and the decree passed by the Judge, 8th Bench of the City Civil Court at Calcutta in Money Suit No. 81 of I960. The defendants are the appellants here. In the trial court the suit was dismissed, but in the first appeal the suit was decreed after the setting aside of the decision of the trial court.
2. The relevant facts for this appeal may be stated in brief. One Jhawalal Gupta, a Hindu governed by the Benaras School of Hindu Law was the owner of several properties. He died leaving a widow and four sons. They constituted a joint undivided family. Thereafter Satya Narayan Gupta for self and representing his minor sons filed a suit in the High Court for partition in respect of the properties left by Jhawalal. There were prayers for partition of the properties and also for accounts. A preliminary decree was passed on 23-5-1952 and before the Commissioner of Partition, the plaintiff being the managing member of the undivided family filed accounts upto 31st Chaitra, 1361 B. S. corresponding to 14th April, 1055 in respect of the properties and the 'business sought to be partitioned. The Commissioner submitted a report and the court on hearing the parties accepted the Commissioner's report after some modifications therein, and passed a final decree in the suit on the basis thereof on 8-9-58. The parties, thereafter, took possession of the allotments made by the court according to the final decree. Subsequently, however, on 9-3-60 the plaintiff of the previous partition suit, Satya Narayan Gupta filed a Money Suit in the City Civil Court at Calcutta for recovery of an amount of Rs. 4572/- against the widow of late Jhawalal Gupta end the other three stepbrothers who were younger in age to the plaintiff and made defendants in the earlier partition suit. The allegations made in the plaint are that in connection with certain certificate cases started by the Income-tax Department for certain liability of the joint family of the parties and also for joint liability for payments of sale tax of the undivided business of the parties, the plaintiff Satya Narayan had to make payments to the total amount of Rs. 5265.59 to avoid attachment of his own properties and that excluding his share of liability, the plaintiff is entitled to get the total sum of Rs. 4572/- from the defendants on account of the latter's share of the liability. It may be mentioned that some items of payments as mentioned in the plaint were made after the final decree and the rest during the pendency of the suit. The defendants who are appellants in this appeal filed a written statement denying the liability, It is stated that the suit is barred by the principles of waiver, estoppel and acquiescence, that the suit is hit by the principles of resjudicata and that till the final decree was passed in the previous partition suit, the parties lived in joint mess and the defendants were under the control and management of the plaintiff. It is further stated in the written statement that all payments were made out of the fund of the joint estate and the defendants cannot be liable for any sum. It is also stated that if there was any liability, the plaintiff would have stated before the court in the partition suit or to the Commissioner of Partition and that in the absence of such assertion or claim in the partition suit, the plaintiff is not entitled to ask for contribution towards the alleged payments after the final decree. Such right, if any, was waived by the plaintiff. The learned Judge of the City Civil Court on a consideration of the evidence and circumstances came to the finding that there was abundant evidence to prove that till the date of final decree in the partition suit, namely, 8-9-58, the plaintiff controlled the affairs of the family relating to the immovable properties. The trial Judge disbelieved the plaintiff's evidence that his step-mother, one of the defendants, controlled the affairs of the joint property. The plaintiff himself admitted that he had brought a suit as Karta of the joint family against a tenant in respect of a joint property-According to the learned Judge of the trial court the plaintiff had in his hand money realised out of the joint family properties till the date of final decree and that the plaintiff failed to prove that he had made payment of the certificate dues and sale tax dues as mentioned in the plaint with his own money. In effect the trial court believed that upto the date of final decree, the plaintiff managed the joint family properties and handled the income of the same and as such the payments made were with the money of the joint fund. As the plaintiff could not prove that he spent his own money for meeting the joint liability, the suit was dismissed.
3. In the first appeal before this court preferred by the plaintiff two contentions were raised from the side of the appellants. The first one was that the onus of proving that the plaintiff continued to act as the karta of the joint family and received all the income of the properties lay on the defendants and the second one was that the burden was on the defendants to prove how much money was received by the plaintiff towards the income of the properties out of which he made payments of the dues towards the joint liability. On the points raised, Sinha, J. did not, however, confidently disturb the finding of the trial court that the plaintiff had been acting as the karta of the joint family till the dates of final decree in the partition suit. But according to him, it was for the defendants to prove how much money was actually realised by the plaintiff out of the joint family funds and further to prove that the plaintiff made payments towards the certificate and sale tax dues of the joint family out of the income of the joint properties coming to the hand of the plaintiff. On the question, of res judicata, Sinha, J. held,
'it is desirable that any joint liability of the family if known to any of the coparceners or the karta should be brought in the matter of final accounting between the parties, but if for any reason the parties failed to bring those items in the account adjusted one date prior to the payment of the liability that cannot mean that any party meeting that liability individually would be debarred from realising the proportionate amount by any legal action subsequently. This contention therefore fails.''
Ultimately the appeal was allowed and the defendants were held to be liable to pay the amount claimed.
4. We have heard Mr. Dey, the learned Advocate appearing on behalf of the appellants and Mr. Dutt for the plaintiff-respondent. Mr. Dey has challenged the throwing of the onus upon the defendant to prove how much money the plaintiff realised towards the income of the joint properties as karta upto the date of final decree and also the contention that it was for the defendants to prove that the plaintiff had paid money out of the joint income towards the certificate and the sale tax dues. In my view, the onus has been wrongly placed upon the defendants in the present case to prove what amount of money was actually received by the plaintiff acting as the karta of the joint family towards the income of the joint properties. When it has been proved that it was the plaintiff who acted as the karta upto the final decree in the previous partition suit and that he was collecting the income of the joint properties, the onus is upon the plaintiff to prove how much money he realised out of the joint property and how much money he had spent to meet the joint liabilities. According to the plaintiff, he was managing the affairs of the joint properties, and as such, he submitted accounts of the joint properties upto the 31st day of Chaitra. 1361 B. S. When it has been proved by evidence that the plaintiff also acted as karta and realised income of the joint property upto the date of the final decree, it was for him to submit accounts relating to the money which came to his hands and also the expenditure he incurred for the maintenance of the property and for meeting the joint liabilities. He was the best person to render the accounts and not the defendants who were not expected to have any knowledge as to the actual income and expenditure. Moreover, Mr. Dey has contended that in the facts and circumstances of this case, it should have been held that the respondent-plaintiff's suit was hit by the principles of res judicata and that the suit was barred by Order 2, Rule 2 of the Code of Civil Procedure. It has been further contended that the plaintiff ought to have been held estopped from claiming any amount due to the alleged payments towards the income tax and sales tax liabilities which were alleged to have been made on account of his not having made any such claim before the final decree in the partition suit. Mr. Dutt, however, has contended that as there was no issue regarding res judicata in the trial court, and as the plaintiff made the payments subsequent to the submission of his accounts in the partition suit, a different cause of action arose under Sections 69 and 70 of the Contract Act which entitled the plaintiff to file the second suit.
5. Before going to a detailed discussion on the points raised in this appeal, we should note that in the year 1951 the plaintiff Satya Narayan Gupte for self and as natural guardian on behalf of his minor sons Narendra Nath Gupta and Birendra Nath filed the partition suit against Lakshmi Narayan, Sew Narayan, Uday Sankar and Sm. Saraswati Debi, the present defendants, for partition of the joint family properties and businesses and also for accounts. Satya Narayan as the kerta of the joint family, after the preliminary decree was passed declaring the shares of the parties, filed before the Commissioner of Partition accounts in respect of the joint family properties and businesses upto 31st Chaitra, 1361 B. S. The Commissioner made a report to the Court and the same is dated 25th May, 1956. This has been marked Ext. 3 in this suit. It may be mentioned that the preliminary decree in partition suit was passed on 23-5-1952. Thereafter, on some modifications of the Commissioner's report a final decree was passed on 8-9-58. Rule 2 of Order 2 of the C. P. Code provides that every suit shall include the whole claim to which the plaintiff is entitled in respect of the cause of action, but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the court. Where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. It is also stated that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. For the purpose of our present suit, there cannot be any application of Order 2, Rule 2 of the C. P. Code because in the previous partition suit, the plaintiffs of that suit including the plaintiff of the present suit prayed for partition of all the joint properties and businesses and also for accounts against the defendants in respect of the said properties and businesses and claimed both preliminary and final decrees, and in fact after the passing of the preliminary decree, the plaintiff Satya Narayan filed accounts upto a certain date subsequent to the passing of the preliminary decree. Clearly, therefore, it is evident that besides final decree for partition of the joint properties and businesses, there was a prayer for accounts claiming a final decree therefor. The plaintiff claimed a decree for accounts upto the date of final decree in respect of the joint properties and businesses. There was no omission of any claim in the suit. The plaintiff demanded his full claim for partition of the properties and the businesses owned by the members of the joint family and also accounts upto the date of the final termination of the suit. In the present suit the plaintiff has claimed certain amounts of money which he paid towards the liabilities of the joint properties, particularly the suit business, which come under the purview of the partition and accounts to be determined in the previous suit for partition and accounts. In my view, therefore, Order 2, Rule 2 of C. P. Code, need not be considered to see whether the present suit is barred by that provision.
6. Before we pass on to the question of res judicata, we should consider the scope of a partition suit because this will be relevant for our consideration in this case. In a suit for partition of common properties and businesses, the share of the parties in the subject-matters should first be ascertained. Next, in order to make proper allotments to the parties, the subject-matters for partition should be properly assessed and valued and for that purpose and for fair valuation of the allotments for the parties, the assets and the liabilities of the estate for partition should be found out. Provision may be made for meeting the liabilities and in making allotments while considering the assets and liabilities of the joint properties owelty money, if necessary, is to be determined for assessment of the proper valuation of the allotments. In order to achieve these purposes, accounts of profits and liabilities are to be taken up for consideration at the time of final decree so that in future after the final decree, the parties may not have any occasion to file suits in connection with the liabilities or claims in respect of the properties already partitioned and in which the parties have been given possession. There should not be any scope for future litigation over the same matters after the determination of the partition suit. In a suit for partition of properties and businesses, the question of accounting becomes unavoidable for final determination and assessment of the valuation of the properties to be allotted to the parties. In this connection the decision of the Full Bench of the Madras High Court in the case of Babbru Basavabasevayya v. Babbru Guravayya reported in : AIR1951Mad938 (FB) may be considered. The Bench was constituted by Rejamannar, C. J., Biswa Nath Sastri and Panchapa-kesa Ayyar, JJ. In that case the nature and scope of an ordinary partition suit was discussed. In paragraph 7 of the judgment we get;
'It may be necessary in a partition suit not merely to divide the properties but also to realise outstandings, discharge common liabilities, sell properties not capable of easy division, direct different shares to account for different periods of time in respect of profits of different properties, adjust equities between the parties and give directions from time to time to the Commissioners appointed to divide the properties or take accounts. It is not reasonable to suppose that the power of the court, to give directions in respect of all or any of these matters must be exercised only at the time of passing the preliminary decree and is exhausted with the passing of that decree.'
In paragraph 8 towards the end we get:
'A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him.'
In paragraph 13 of the judgment a summary of the conclusion has been made and we quote a portion thereof as follows:
'A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree: Jadunath v. Parameswar, ILR (1940) 1 Cal 255 = (AIR 1940 PC 11). In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition tan be effected. Among them are the realisation of common outstandings the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor and other similar matters' The above Madras case was considered by a Division Bench of the Orissa High Court in the case of Udekar v. Chandra Sekhar Sahu reported in : AIR1961Ori111 . In this case on consideration of different cases particularly the Full Bench decision of Madras High Court, the Bench held:
'Hence it is obvious that a claim for accounts in a partition suit is implicit in the original suit for partition by metes and bounds and it ought to be settled at the time of the preparation of the final decree.'
We have no doubt that in a partition suit like the one before us, where different properties and businesses are involved, the question of accounts and joint liabilities and assets of the estate to be partitioned becomes essential and for that purpose no separate prayer for rendering accounts need be mentioned in the plaint. In the case before us however, besides the prayer for partition of the properties and businesses, there was, in addition a prayer for accounts made by the plaintiff in the plaint,
7. With regard to the question of res indicate raised from the side of the defendant-appellants. Mr. Dutt has first of all submitted that in the absence of any issue being framed on the question regarding res judicata the said point cannot be considered In this connexion the case of Musummat Mitna v. Syed Fazul Rob reported in (1869-1870) 13 (1869-1870) 13 Moo Ind App 573 (PC) may be considered. In that case the Principal Sadar Ameen did not strike any issue according to the Code of Civil Procedure but witnesses were examined and a decree was made. In the appeal before the High Court the decree was affirmed. The matter was then taken to the Judicial Committee. Their Lordships, however, held that though no issue was framed in the trial Court, the parties had gone to trial having full knowledge regarding the real controversy between them, that on that question evidence had been taken and that the conclusion had been correctly arrived at from the evidence by the lower appellate Court. There was no reason for their Lordships to interfere with the decree passed. It was, however stated that although it was the duty of the Court to settle the issues before trial, yet mere omission to frame issue did not vitiate the trial in that case because there was no failure of justice.
8. There is the decision of the Supreme Court in the case of Nagubai Ambal v. B. Samarao reported in : 1SCR451 . In that case the plaintiff did not make any averment regarding the Rule of lis pendence relating to a sale either in his plaint or his reply statement, but he raised this point at the beginning of the trial and led evidence on it. The defendants at that time did not raise any objection to such evidence. The plaintiff was cross-examined on that point and the defendant also gave evidence on his side in that respect. When the matter came before the Supreme Court it held, 'That the defendants went to trial with full knowledge that the question of lis pendence was in issue, had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them'. Ultimately the Supreme Court, explained the principle in paragraph 12 of the judgment in the following words:
'The true scope of this Rule is that the evidence let in On issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that Rule has no application to a case where parties go to trial with knowledge that particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.'
The Supreme Court in the case of Bhagwati v. Chandramaul appearing in : 2SCR286 gave a clear decision on this point in the following terms :
'The general rule, no doubt, is that the relief should be founded on pleadings made by the parties. Where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider is : did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.'
Our attention has been, drawn to the case of State of Punjab v. B. D. Kaushal decided by the Supreme Court and reported in : (1971)ILLJ31SC . In connection with the point raised as to whether the principle of res judicata could be waived and was actually waived in that case, the Supreme Court held 'Although no specific plea was taken in the written statement nor was any issue framed before the time of trial, but the necessary facts were present to the mind of the parties and were gone into by the Court.' It was further found that the question of res judicata was agitated in the Courts below and in this view of the matter, the Supreme Court was unable to understand how in the circumstances, the question of waiver would arise when the point had throughout been under consideration and discussed. Considering the different case laws, the principles and tests for upholding the decision of a plea not covered by pleadings and issues struck in the trial Court may be generally summarised as follows :--
(i) The parties must have fully known before going to the trial that the new plea taken would be thrashed out and decided in the suit to have a bearing on the ultimate result of the suit. None of the parties should be taken by surprise on account of a new plea foreign to the pleading of the party raising it.
(ii) The opponent of the party setting up the new plea must have accepted the challenge of the said plea without objection as to its absence in the pleading or issue by adducing rebutting evidence or otherwise dealing with the same.
(iii) The party challenging the plea must have reasonable opportunity to meet it effectively and to adduce evidence against the said plea.
(iv) The Court must see that by allowing one party to raise a new plea or case not pleaded in his pleading, or for which no issue was framed, no prejudice or injustice is done to the other party.
(v) The new plea set up should not be otherwise legally barred. If the conditions mentioned above are fulfilled, then the Court can legitimately act upon the new plea not finding any place in the pleading and on which no issue has been framed when the said pleas are proved. The absence of issue in a case like this will be of no avail and the objection, if any, becomes technical having no value.
9. Remembering the above principles, let us now consider the facts of the case before us. Against the claim of the plaintiff, it was stated in the written statement that the suit was barred by the principles of waiver, estoppel and acquiescence. It was also stated therein that the suit was barred by res judicata. It was also alleged in the written statement that the plaintiff should have disclosed the liabilities before the Court or to the Commissioner for Partition while the previous partition suit was pending and that the plaintiff had waived his right, if any, and is neither competent nor entitled to ask for the contribution for the alleged payments made in the certificate cases before or after the final decree. According to the averment of the defendants all the payments were made out of the income and fund lying with the plaintiff in trust for and on behalf of the defendants. Admittedly, there was the suit for partition and accounts started by Satya Narain Gupta and his sons. The certified copy of the final decree passed in that suit has been marked Ext. 2 and the report of the Commissioner of Partition connected with the decree has been marked Ext. 3. Both the documents were marked exhibits on the side of the plaintiff. Admittedly, the plaintiff's case is that for the joint liability of all the parties including the defendants, he paid the amounts mentioned in the plaint to satisfy the income-tax and the sales tax demands relating to the income of the joint estate including the properties and the businesses which were partitioned in the previous partition suit. Admittedly, again, the plaintiff Satyanarayan submitted accounts of the joint estate including the businesses upto 31st Chaitra. 1361 B. S. He claimed partition as well as all accounts relating to the joint properties and businesses. As against the defence taken on the question of res judicata and waiver the plaintiff himself tried to explain the non-inclusion of the claims for the payments in the partition suit stating that before the final decree of the partition suit he informed his Attorney about the payment of the dues which ought to have been paid by all co-sharers. His plea in evidence was that he was told by the attorney that the matter could not be urged in the partition suit. In view of the defence the plaintiff also gave evidence that after 31st of Chaitra, 1361 B S. he was not in charge of the joint estate and that his step mother, the defendant No. 1 herself began to look after the joint properties from Baisakh, 1362 B. S. In cross-examination the plaintiff admitted a large number of receipts which were granted on behalf of the co-owners to the joint tenants before the final decree in partition suit. The person who collected rents from the tenant was Manoranjan. He was examined on the side of the defendants and he stated that after collection, he paid rents to the plaintiff who received the same on behalf of all co-sharers. Admittedly again, the plaintiff brought a suit as the karta of the joint family against a tenant and the said suit was dismissed in September, 1958. Plaintiff examined no other witnesses on his side besides himself. On a consideration of the evidence, the trial Court held that not only upto 31st Chaitra, 1361 B. S. was the plaintiff the karta of the joint family and managed the affairs relating to the joint properties, but also till the final de-cree in the partition suit did he act as such, and collect all the income of the joint property and also handled the same. In the facts and circumstances, therefore, it is quite clear that the plaintiff was aware of the defence plea of res judicata and waiver in view of the decision of the previous partition suit. The plaintiff also gave evidence to explain why there should not be any plea of res judicata. The absence of any specific issue regarding the question of res judicata or waiver will not matter in the present case as this will not cause any prejudice to the plaintiff. Both the parties adduced evidence keeping in mind the said plea raised by the defendant. In the present case, however, there was in the pleading of the defendants the pleas of res judicata, waiver, estoppel and acquiescence. It can be stated, therefore, that the absence of issue on the said plea will be of little value.
10. It has been next contended by Mr. Dutt on behalf of the respondent that there can be no application of the principles of res judicata in this case because the final decree was passed on the basis of the account as submitted upto 31st Chaitra, 1361 B. S. and that the period thereafter upto the date of disposal of the suit was kept open, and in that event when the plaintiff paid the income-tax and sale tax dues after the 31st of Chaitra 1361 B. S. there would be a fresh cause of action for the plaintiff to claim the money he spent for the joint liabilities of the parties. In this connection Mr. Dutt has submitted that when the plaintiff claims the money, he has paid towards the joint liability and claims the sum payable by the defendants under Sections 69 and 70 of the Contract Act, it has no connexion with the decree for accounts and partition passed in the previous suit. As already stated earlier, the suit was filed for partition and accounts and the plaintiff prayed for final decree in that respect. The plaintiff as the karta of the joint family and as manager filed the accounts of the joint properties and businesses upto 31st Chaitra, 1361 B. S. It should be remembered that Satyanarayan is the plaintiff in the instant case and he was also the plaintiff and represented the other plaintiffs, his minor sons as their guardian. First of all it is the duty of the plaintiff to see that his claim for accounts in the suit be decreed according to his claim. He should take necessary steps for production of evidence to substantiate all his claims regarding the accounts. As the karta, he submitted his accounts upto 31st Chaitra 1361 B. S. The Commissioner for partition considered the same according to the direction of the Court and submitted his report. Before passing the final decree, the Court considered the claims of the parties and made certain modifications in respect of the allotments suggested by the Commissioner for passing a final decree. Before the final decree, therefore, it is but obvious, and also admitted that the plaintiff did not inform either the Commissioner for partition or the Court as to his claim regarding the payments he made for any liability of the joint properties for which his interest might be affected later on. The trial Court in the present suit has found that even after the 31st of Chaitra, 1361 B. S. and upto the date of final decree, the plaintiff Satya Narayan was acting as the karta and managing the joint family properties and also collecting income of the joint estate. This finding has not been set aside or disbelieved by the first appellate Court. The evidence on the other hand, clearly proves that he was in fact receiving rents from the tenants upto the date of the final decree. This is supported by reliable evidence adduced on the side of the defendant. When the plaintiff had managed the affairs of the joint family properties, it was for him to submit accounts for the period subsequent to the 31st of Chaitra, 1361 B. S. He did not submit any such account. It was his duty and it was only natural for him to claim the amounts of money 4ie had paid towards the joint liabilities as has been claimed by him in the present suit. But, admittedly, the plaintiff did not set up any such claim or submit any account of any joint liabilities either after 31st of Chaitra, 1361 B. S. or at the time when the Court considered about the modification of the report of the Commissioner of Partition in order to pass a final decree in respect of the joint family properties and businesses. He claimed in the partition suit accounts upto the date of final decree and he had every right to make any claim which he was entitled to. The non-submission of the accounts before the final decree or non-mention of any claim in respect of payments, alleged to have been made by him or any liabilities in respect of the joint property supports the defence contention that he made payments in question with the money which were lying in his hands coming out of the income of the joint property. As he had not to pay from his own pocket, he made no claim in respect of the payments made by him. This non-assertion of claim or giving up of the claim will certainly give rise to the bar by the principles of res judicata if the plaintiff claims the same in a subsequent suit because this claim he could have made in the previous partition suit, but he did not.
11. Regarding the submission of Mr. Dutt that there was a fresh cause of action as the plaintiff now claims the money under Sections 69 and 70 of the Contract Act, the answer is that the claim of the money relates to the accounting of the joint estate and that the plaintiff could have claimed this money in the partition suit when he was already found to be managing the affairs of the joint family upto the date of final decree and when he had already made payments of the same and had not alleged the same to be the liabilities of the joint estate. When in the previous partition and accounts suit the plaintiff had the right to have a decree for the payments he had made towards the liabilities of the joint properties, such claim cannot be made in a subsequent suit in the garb of a different form. In connexion with this point, the Commissioner's report referred to in the final decree may be looked into. According to the evidence of the plaintiff, the payments were made in connexion with the joint sweet meat manufacturing business now allotted to the plaintiff which was valued at Rs. 10,000/-. It is clearly stated in the item No. 1 of Pt. II of the Commissioner's report relating to the said business that there were no outstanding and liabilities of the said business. According to the plaintiff's case the payments were made in respect of this business and that was subsequent to the report made by the Commissioners. The plaintiff did not object at the time of passing of the final decree regarding the absence of outstanding and libilities of the business. The principle of res judicata is well known and it is meant to avoid institution of frivolous and harassing suits and also to get rid of multiplicity of proceedings and litigations and to end for good the disputes between the parties on disputes of the same nature. In the present case there can be no doubt that as the plaintiff in the previous suit for partition and accounts did not make any claim regarding the payments alleged to have been made by him and the liabilities of the joint estate, he is estopped from raising it in a subsequent suit by the principles of constructive res judicata under Section 11 Expln. 4 of the Code of Civil Procedure. All the disputes regarding accounts, liabilities and claims in respect of the joint properties have been settled in the previous suit and no part of the claim connected with the previous joint properties and businesses as mentioned in the present suit is maintainable.
12. In the facts and circumstances, the plaintiff is estopped by his conduct in the previous suit by not claiming the amounts demanded in the present suit. It also amounts to waiver of his claim. According to the final decree in the partition suit, he got the Sweet Meat business to his own allotment without there being any liability for any of the joint owners. But now, after getting the same for himself the plaintiff cannot say that there was joint liability either for payment of sale tax or income-tax. The plaintiff must be held to be estopped by his conduct from claiming any money from the previous joint owners on the ground of joint liabilities. Had there been any claim on the part of the plaintiff for such payment, then the other co-owners would have the right to demand accounts regarding the management of the plaintiff as the karta from 31st of Chaitra, 1361 B. S. to the date of final decree. This was certainly to the disadvantage of the defendants and this sort of claim, for ends of justice, should not be allowed.
13. In the facts and circumstances mentioned above, we find that the learned Judge was wrong to hold that the question of res judicata should not be allowed to be agitated. He was again wrong in holding that simply because the payment of sale tax and income-tax was admitted, the plaintiff was entitled to get a decree against the defendants. The first appellate Court came to its decision without properly considering the plea of res judicata. The judgment and the decree passed in the first appeal are, therefore liable to be set aside.
14. In the result, the appeal succeeds and the judgment and the decree in the first appeal are hereby set aside and the judgment and the decree of the trial Court are restored. We have no order, however, as to costs in this appeal or in the Court of appeal below.
A.K. Janah, J.
15. I agree.