1. I had the great advantage of a perusal of the judgment just now pronounced by my learned brother before I began to write the following opinion. The material question for decision in these connected cases is whether in the moneys claimable under the mortgage documents sued on, the plaintiff's divided son possesses any interest notwithstanding the decree in the partition suit, Original Suit No. 7 of 1901 on the tile of the District Court of Kurnool, brought by the plaintiff's son against the plaintiff. The decree, Exhibit B, in that suit, Original Suit No. 7 of 1901, contains the schedule of properties, the partition of which was prayed for in that suit. Item 35 of that schedule B is "Decrees, accounts, documents, vagaira" and Rs. 1,000 is given as the value of these incorporeal personalties. Vagaira means "things of a similar character to those mentioned just previously." It is quite clear from the judgment, Exhibit A, and the decree, Exhibit B, that the suit brought by the plaintiff's son was a suit for partition of all the properties then belonging jointly to himself and to his father (the plaintiff) and it was never intended to reserve any property for future partition. The 1st issue in the judgment, Exhibit A, is "what is the net value of the defendant's property?" and the judgment decided that the value of the half share in B schedule property was Rs. 1,210 and gave a decree for that sum against the plaintiff in favour of plaintiff's son. The lower Appellate Court does not deny (see paragraph 3 of its judgment) that item 35 of schedule B in the decree in the suit of 1901 did include all the bond debts due to the plaintiff and plaintiff's son. But as I understand the judgments of the lower Courts, they held that because the plaintiff in that suit (that is, the present plaintiff's son through his next friend) and the defendant in that suit (that is, the present plaintiff) both treated the bonds as worthless, the value of the plaintiff's son's half share of the family moveables was claimed in that plaint and awarded by the decree excluding the amounts of the present bond debts. The plaint bond-debts were not partitioned and remained the joint or common property of the plaintiff and his son. The plaintiff says in his evidence that he has paid up the amount due to his son under the decree. I am unable to accept the view of the lower Courts on this point. Plaintiff's son's next friend did not claim any money for his share of the amounts which may be recovered under these bonds, because he believed that nothing could be recovered on these bonds. He treated them as of no value and consented to the Court allowing nothing to him specifically for half the value of these bonds. The Court (see Exhibit A) was not, in fact, asked to give more than Rs. 1,210 (including Rs. 1,000 of which for the decrees, accounts, documents, and bond debts), and the Court did award that sum. As said in Mayne, paragraph 493: "Every suit for partition should embrace all the joint family property" if all the property lies within the same jurisdiction, "unless some portion of it is at the time incapable of partition, as for instance from being in the, possession of a mortgagee or is from its nature impartible, or is held jointly with strangers to the family, who have no interest in the family partition and therefore cannot be made parties to the joint family suit for partition." Where there has been a partition at all, the presumption is that it was a complete one, and that it embraced the whole family property." It follows that after such a partition, none of the parties to it holds any of the properties (till then held jointly) along with any other party, unless the partition agreement or the partition award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-inclusion of some of the property at the division. The usual concluding portion of a partition-deed is "hereafter there shall be only connection by blood between us but no connection as co-sharers in any of the properties till now belonging to us in common." If property is afterwards found in the exclusive possession of one member of the family and it is alleged that such property is still undivided and divisible, the proof of such an allegation rests upon the party making it. [Narayan Babaji v. Nana Manohar 7 B.H.C.R.A.C.J. 153.] Except on the ground of accident, mistake or fraud, therefore, there cannot be a second partition, "it cannot be successfully disputed" unless in exceptional cases "that at the time of" "a partition" "all the assets are determined and divided." "All accounts should be presumed to have been taken with a view to ascertain the properties" to be divided, and the cash to be paid to the plaintiff's son in full satisfaction of his claim in respect of his half share must be taken to have been arrived at after such a complete account. In Appeal Suit No. 47 of 1913 very recently decided by the First Bench, Seshagiri Aiyar, J., says: "Mr. Mitra in his Tagore Lectures, dealing with this special question, quotes from the Smrithis and commentaries to show that partial partition was unknown to Hindu Law." "As regards decided cases Sir Richard Garth in Radha Churn Dass v. Kripa Sindhu Dass 5 C. 474, 4 C.L.R. 428 says: 'it seems indeed very doubtful whether by the Hindu Law any partial partition of the family property can take place except by arrangement.' In Vaidyanath Aiyar v. Aiyasamy Aiyar 1 Ind. Cas. 408; 3 2 M. 191; 19 M.L.J. 94; 5 M.L.T. 49, it was clearly laid down that when once a partition was made, the presumption is that it effected a complete severance of interest." I am clear that a co-parcener who wishes to get a partition of family properties has only a single cause of action in respect of all the joint properties and hence it is that a suit for partial partition has been consistently held not to lie.

2. Order II, Rules 1 and 2, of the new Civil Procedure Code, corresponding to Sections 42 and 43 of the old Civil Procedure Code are as follows:

1. Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them."

2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) 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.

(3) 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.

3. Section 11 of the Civil Procedure Code (corresponding to old Section 13) in explanations 4 and 5 says on the question of res judicata:

4. Explanation 4:

"Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

5. Explanation 5:

"Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused."

6. Now if the plaintiff's son represented by his next friend is taken to have omitted to sue in respect of these bonds (having according to the plaintiff's evidence, which is accepted by the lower Appellate Court, known of the existence of these bonds), he has no right to sue again under Order II, Rule 2, Clause 2, claiming any share in them now. If he did; not make the matter of these bonds a ground of attack in the former suit against his father, he ought to have done so and explanation 4 to Section 11 makes his right to a share in the value of these bonds res judicata. If he did claim a relief as regards these bonds and if it was not expressly granted by the decree, it should be deemed to have been refused under explanation 5 to Section 11 and in that view also the matter is res judicata. If he did claim the relief and if, on account of that relief and of the relief as regards his share in the other moveable properties, a consolidated sum of Rs. 1,210 was awarded to him, then also he lost all further rights in these bonds and the matter is again res judicata.

7. On all these grounds, I hold that the suit brought by the plaintiff alone without the plaintiff's son was not bad for non-joinder of parties and I would, reversing the decisions of the lower Courts, remand the suit to the Court of first instance for a fresh decision according to law. As my learned brother differs, the second appeals will stand dismissed (and with costs to the respondents who appear) under Section 98 of the Civil Procedure Code.

Napier, J.

8. Original Suit No. 98 of 1911 was one of the six suits brought by one Kandum Venkataswmy on a mortgage executed by the paternal grandfather of defendants Nos. 1 to 7 in favour of the plaintiff's deceased father. It was pleaded in defence that the plaintiff and his son were not divided in respect of these properties and as such were entitled as co-owners of the suit bond and that, therefore, the son was a necessary party. This contention was upheld by the District Munsif and on appeal by the Subordinate Judge, and the suit has been accordingly dismissed.

9. The most important question that has been argued is whether the suit bonds are the joint property of the plaintiff and his minor son, or whether they have fallen to the plaintiff as his share in the partition suit brought by his minor son against him in Original Suit No. 7 of 1901. The lower Appellate Court has held that the bonds were not taken into account in the partition and that, therefore, the plaintiff and his son are co-owners. It is argued here that there had been a final partition of all the family assets which is conclusive in the absence of accident, mistake, fraud, none of which can be put forward in this case. It is not quite easy to ascertain exactly what was done with reference to these bonds at the time of partition. One thing, however, is clear, namely, that they were regarded as waste paper in the light of the law as it was at that time, they being time-barred. The finding of the lower Appellate Court is against the plea of the plaintiff that his son sued for his share in these bonds and that he paid off to his son the value of his half share thereof, This being a finding of fact is binding on me, and I, therefore, do not examine the evidence as to what occurred at the time of the partition. We are pressed with the argument that, as this was the minor's suit, and as the Commissioner purported to divide everything that he believed to be of any value, and the plaintiff got a decree for a certain amount as his share, everything that remained belonged to the father. This contention seems to me to go too, far; for it amounts to this--that in a suit for partition the result will always depend on the question, who was the plaintiff in the suit. On principle, I cannot accept this contention. Partition by suit is only one form of partition; and I fail to see why the right of the plaintiff which arises, not out of a wrong, but out of natural rights should be determined by what might be called a mere matter of arrangement. It is quite conceivable that brothers, for instance, might agree to have their property partitioned in a friendly suit, preferring that method to private partition. One brother, in such a case, would be selected as the plaintiff; and in that case I see no reason, on principle, why any property which had escaped partition should belong to the defendant. The second answer is that the proposition goes too far, in that it is admittedly not correct where property has been left out of; the partition on certain grounds above referred to. The law as to partition by a suit is summed up by Mr. Mayne in paragraph 493 as follows:

10.

"There may be a partition and distribution which is intended to be final, but some part of the family property may have been overlooked, or fraudulently kept out of sight. In such a case, when the property is discovered, it will be the subject of a fresh distribution."

It has not been contended before us that this statement of the law is incorrect; and it necessarily follows that the theory that what is not given to the plaintiff must belong to the defendant, is not sustainable.

11. Another argument put forward was that these bonds, having been left in the possession of the father defendant, must be deemed to be his property. I asked in vain for an answer to the question, what would have happened if the bonds had been taken away, at the request of the father, by his son as waste paper or if the Commissioner, appointed by the Court to divide, had, by accident retained the bonds, also treating them as waste paper. I cannot, therefore, attach any weight to this argument.

12. It is then suggested that the effect of the partition was to operate as an assignment by the plaintiff of all that was not allotted to him. No authority was quoted for this proposition and, in my opinion, partition by mutual arrangement operates no higher than a release by each party of his rights in the property allotted to the other party.

13. It was then argued that if a small value had been put on these bonds, and a sum representing half their value had been allowed to the plaintiff by the Commissioner, he could not have claimed a share. I reserve my opinion on this point, but I see no analogy between such a position and that found by the lower Appellate Court, namely, that these bonds were not taken into account. The true proposition is, I think, stated in two cases decided by the High Court of Calcutta. In Jogendra Nath Rai v. Baladeo. Das 35 C. 961 at p. 968: 12 C.W.N. 127; 6 C.L.J. 735 the following language is used: "Although the entire property must be included in the partition, yet, if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners." This view was more broadly stated in a suit of this class, Bhowani Prosad Shaha v. Juggernath Shaha 3 Ind. Cas. 241; 13 C.W.N. 309; 9 C.L.J. 133, and is founded on circumstances entitling a party to re-open settled accounts: 'The parties will not be concluded by the presumption of final settlement as to matters which were not contemplated by them or which were not in fact included in the settlements, though they existed at that time. The presumption is destroyed when the details of the settlement show that the matter in controversy was not included".

14. Although the language in Jogendra Nath Rai v. Baladeo Das 35 C. 961 at p. 968: 12 C.W.N. 127; 6 C.L.J. 735 may not cover the present case, this latter proposition is certainly wide enough and I do not think that the Judges intended that passage in the earlier case to be exhaustive, especially in view of the fact that Mr. Justice Mookerjee was a party to both judgments. At all events, I prefer the broader proposition; and assuming that a case like this does not come within the word 'mistake', I am prepared to add, to the exceptional cases stated by Mr. Mayne, the case where property, being deemed to be worthless, has not been taken into account, though its existence was well known to all the parties to the partition suit. In this view, I must hold that the case is one of partial partition and that the property remains joint family property.

15. Certain other arguments were put forward by Mr. Shenai which can be briefly disposed of. I do not think that, when once the parties have become divided in interest, the father can sue on behalf of his son; nor do I think it arguable that this suit can be treated as one for partition, it being impossible to find a joint cause of action in a suit on a mortgage and a partition suit. Such a suit would violate the provisions of Order II of the Civil Procedure Code.

16. Lastly, it was also contended that the father could bring this suit and ask for his half share. This, however, is clearly forbidden by Section 67 of the Transfer of Property Act, which forbids a person interested in a part only of the mortgage-money from instituting a suit relating only to a corresponding part of the mortgaged property, except, where there has been a severance with the consent of the mortgagor. Vide also Parsotam Saran v. Mulu 9 A. 68; A.W.N. (1886) 298. In my view, therefore, the suit was rightly dismissed for want of parties.

17. This appeal is, therefore, dismissed with costs as provided in the judgment of my learned brother.