The Judgment of the Court was delivered by

Sadasiva Aiyar, J.:— 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 had been passed so long ago as on 7th March 1896 (see decree Ex. C), and for partition of one property (item 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 (Ex. C) was passed, they having been “plaintiff” and “defendant 2” respectively in that suit. Defendant 3 in that suit was the Secretary of State for India represented by the Collector of Tanjore, who was in possession of some of the moveables 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 4 and 5 of the plaint Sch. A and has passed a preliminary decree for partition of the other items 1, 2, 3, 6, 7, 8 and 9 in Sch. 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. As I said the razinama decree (Ex. C) was passed on 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 1 and 2 one moiety with reference to good and bad soil of the immovable properties described in Sch. a of the plaint except the house item 8 that has been given to defendant) 1 and that defendant 2 present defendant do take the other moiety, that plaintiff do further get from defendant 2 mesne profits from this date to date of delivery in respect of the moiety in Sch. a aforementioned.”

4. On 11th October 1897, the plaintiff's guardian granted a receipt to the defendant's agent and it is marked Ex. 3 in this case. That receipt acknowledges that the plaintiff's claim as established under the decree (Ex. 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 (Ex. C), except one of the nine properties now in dispute and except the moveables in the Collector's hands, item 4 of the present suit was as I said before not included in Original Suit No. 36 of 1895. Para. 10 of the plaint in the present suit says:

“In regard to the properties annexed to the Sch. a hereto it was found that a division by metes and bounds was not then convenient.” (that is at the time of Ex. 3 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 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.”

5. The Para. 15 of the plaint is as follows:

“Plaintiff finds it inconvenient to have the properties described in Sch. 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 29th December 1910 calling upon him to consent to a fair division of the properties described in Sch. a by metes and bounds. The defendant has not replied to the same.”

6. 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 Ex. C were filed on behalf of the plaintiff (see Exs. 4, 6, 7, and 3) and one on behalf of the defendant (Ex. 5) 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 were in the custody of the Tanjore Collector (defendant 3 in the suit) and afterwards of the Tanjore Palace Receiver: These have been since divided amicably between the parties. 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 connexion with the settlement of some other suit brought by a third person against both of them. Ex. 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 defendant 1) had been put in possession of his share in all the properties. Issues 8 and 10 in that suit were as follows: “8. Whether plaintiff's agent. Veeraraghava Aiyangar granted time to Kasoba Sahib” (present plaintiff's and defendant 1's guardian) “for paying up the amount of the bond till he should get possession of defendant 1's share of all the properties (moveable and immovable) of Sakharam Sahib?” “10, Whether defendant 1 has been put into possession of his share in all the moveable and immovable properties of Sakharam Sahib, and if not, whether the suit is premature?”

7. The Court found that time was so granted and that suit was premature, as the plaintiff had not been put into possession of his share of all properties mentioned in Ex. 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 defendant 1) 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 suit of defendant was not premature. The learned Subordinate Judge in his judgment (Ex. 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”

8. 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 defendant 1) denied that agreement. The defendant now contends that by reason of the finding in Ex. 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 para. 10 of the present plaint. 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 regards the facts themselves they are fully established by the oral and documentary evidence in the case 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 (Ex. 42).

9. I shall first deal with the question whether the finding in Ex. 42 as to the truth of the agreement is a res judicata in this suit. It would be so (see Section 11 of the CPC,) if the fact of this agreement was directly and substantially in issue in the former suit, if, according to Expln 3, the matter was alleged by one party and either denied or admitted expressly or impliedly by the other and if it was beard and finally decided in that suit. Having considered the judgment (Ex. 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 defendant 1). 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 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 (Ex. 42) about the truth of the agreement is not res judicata in this suit.

10. 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 (Ex. C) is treated as a final decree for partition.

11. 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(1), Spencer, J., and myself held that O. 21, R. 2 of the CPC, does not apply to the relief of possession of immovables given by a decree. We relied on Sankaran Nambiar v. Kanara Kurup(2), which was decided on the language of Section 258 of the old CPC. We thought that the Blight change in the language in traduced by O. 21, R. 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 which related to a decree for possession of immovables.

12. But I find in a more recent case decided by the learned Chief Justice and Ayling. J., in Abdul Latiff Sahib v. Bathula Bibi Ammal(3), that it has been held that as the first sentence in O. 21, R. 2, Cl. 1, refers to “a decree of any kind,” the words “the decree” in the second sentence of that rule means “a decree of any kind under which money is payable,” including a complex decree under which possession of I immovables is also awarded and that as regards execution of that portion also of the decree which relates to the possession of immovables, an uncertified adjustment cannot be recognised. (The headnote 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) (Oldfield and Krishnan, JJ.,) which, however, follows Kelu Nair v. Meenakshi, After full consideration, I recede from the opinion expressed by me in Kelu Nair v. Meenakshi and adopt that found in the judgment in Abdul Latif Sahib v. Bathula Bibi Ammal. 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 Cl. 3, O. 21, R. 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 seams to me that the agreement can be recognised by it if the question of its truth is not res judicata.

13. The next objection is that as that agreement varies the terms of the decree in the suit of 1896, it is in valid under O. 32. R. 7 of the CPC corresponding to S. 462 of the old Code, as not having been sanctioned by the Court. O. 32, R. 7, Cl. 2 of the CPC makes such an agreement voidable against all the partiss 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 bad elapsed since the defendant attained majority when this suit was instituted. But the Privy Council has held in Sri Kishan Lal v. Kashmiro(4) 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 void ability of that transaction as against him. I am, therefore, of opinion that Ex. C can be avoided by the defendant 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(5) and T.C Mukerji v. Afzal Beg(6) 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.

14. It was also held in Jogendra Nath Rai v. Baldeo Das(7) 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 CPC. 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.

15. 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 1896 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 immovables 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 Oldfield, J., and myself reported as Srinivasa Mudali v. Ramasamy Mudali(8)]. 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.

16. 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 4. As regards item 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 objection is, therefore, also dismissed. Costs on both sides of this appeal to come out of the estate.

Napier, J.:— My learned brother has mentioned at sufficient length the material facts on which this appeal is founded and I will not recapitulate them. 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 Ex. 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 O. 21, R. 2 of the CPC. I have little doubt that Rr. 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 R. 2, Cl. (1), can apply only to money decrees or can be read as meaning a “decree to the extent of any money payable under it.” In the view I take of the facts the suit will not be barred under Section 48 of the CPC, by reason of more than 12 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 1909. 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. With regard to the memorandum of objections, I see no reason to think that the house was not properly divided originally and in that view the memorandum of objections fails and should be dismissed with costs to come out of the estate.

S.N/R.K

17. Appeal dismissed.