Varadachariar, J.

This is an appeal by the plaintiff in a suit framed as one for partition. In view of certain events that happened between the institution of the suit and 1925 the plaintiff filed an application in 1925 to mould the relief to be granted in the suit in the light of those events and he prayed further that, if necessary, the plaint may be allowed to be amended so as to make a reference to those events. That amendment was allowed by an order of this Court dated 10th December 192

9. There were as many as 39 issues framed in the case and some of the issues had sub-issues. Many of them have not yet been tried. On some of the issues, the learned Subordinate Judge has recorded findings or has expressed his opinions but he dismissed the suit on the ground that the claim made in this suit should have been put forward in O.S. No. 90 of 1918 on the file of the Sivaganga Sub Court and as it had not been so put forward, the present suit was not maintainable.

In view of the contentions urged before us, it is necessary to refer in some detail to the allegations in the pleadings. The plaintiff is the second of five brothers who were the sons of one Nachiappa Chetti. By the date of the institution of the suit, the 1st and the 3rd of the sons were dead. The 1st and the 2nd defendants are the fourth and the fifth son of Nachiappa Chetti, i.e., they are the surviving younger brothers of the plaintiff. The 3rd defendant is a son of the 2nd defendant. Defendants 7, 8 and 9 represent the branch of the eldest son and defendants 4, 5 and 6 represent the branch of the 3rd son. The 10th and 11th defendants, who may be conveniently referred to as P.A.L., are the purchasers of the share of the 5th branch (i.e., of the 2nd and 3rd defendants) in the family house. The 12th defendant is said to have purchased the share of the third branch represented by the 4th defendant in the said house, the 13th defendant had purchased in Court auction the shares of the present plaintiff and of defendants 7 and 8 in the family house. The father of defendants 14 to 16 is said to have purchased the share of the 4th branch in this house, i.e., of the 1st defendant. There have been two prior litigations which have to be noticed before we come to the present suit, viz., O.S. No. 104 of 1914 on the file of the Temporary Sub Court, Sivaganga and O.S. No. 90 of 1918 on the file of the Sivaganga Sub Court.

O.S. No. 104 of 1914 was a suit by the present 13th defendant, the widow of Raman Chetti, the third son of Nachiappa Chetti, for recovery of a certain sum of money representing her Stridhanam funds. As usual amongst Chetties, her Stridhanam moneys seem to have been invested in the family business of Nachiappa and his sons and as Raman Chetti had died prior to 1914, she filed a suit against her father-in-law and the four brothers-in-law for recovery of these moneys, Nachiappa the 1st son died during the pendency of that suit and a decree was passed directing the father Nachiappa and his three surviving sons, i.e., the present plaintiff and defendants 1 and 2, personally and from out of the family properties to pay to the widow a sum of Rs. 31,220-15-6 with further interest. This decision was confirmed by the High Court in February 191

8. It is in execution of the decree in this suit that the widow, who is now the 13th defendant, purchased in Court auction the shares of the plaintiff and defendants 7 and 8 in the family house. A large amount still remained due under the decree. O.S. No. 90 of 1918 was filed by the P.A.L. family for recovery of possession of the 1/5 share of the 5th branch in the family house of which they had become the purchasers. To this suit, they impleaded as party-defendants the other members of the present plaintiffs family and also the present 13th defendant. But defendants 12 and 14 to 16 in the present suit were not impleaded there. The plaint merely claimed recovery of separate possession of a fifth share in the house which was all that those plaintiffs were interested in. The present 2nd defendant and his son the 3rd defendant who were defendants 1 and 2 in that suit, questioned the binding character of the alienation in P.A.Ls favour. The other defendants do not seem to have had any serious objection to P.A.L. getting their due share and the then 10th defendant, in her character as purchaser of the shares of the present plaintiff and 7th and 8th defendants, only raised a question as to the quantum of the share that the alienors would be entitled to, namely, whether it was 1/5th or only 1/6th because at the date of the alienation, the family consisted of not merely the five brothers but also of the father. She added that she had no objection to partition if the plaintiffs were found by the Court to be entitled to any share. This being the nature of the pleadings in that suit, the issues then raised must presumably have been raised at the instance of defendants 1 and 2 therein who naturally wished, if possible, to defeat the then plaintiffs claim. The Court overruled their contentions and passed a decree for division and this decree was confirmed on appeal by the High Court. The preliminary decree was passed on 31st March, 1922 and the final decree on 23rd December, 1926. The preliminary decree declared the five branches to be entitled to 5 shares in the house and held that the then plaintiffs had become entitled to the share of the 5th branch. The final decree allotted separate portions of the house severally to the then plaintiffs and to the respective defendants who represented the different branches, 10th defendant getting the portion allotted to the shares of the present plaintiff and defendants 7 and

8. We have stated already that defendants 12 and 14 to 16 were not parties to O.S. No. 90 of 1918 but they claim that they are now in possession of the properties allotted to their respective alienors as per the decree in O.S. No. 90 of 1918.

The present suit was instituted in January 1921, i.e., even before the preliminary decree was passed in O.S. No. 90 of 191

8. As originally framed, the plaint prayed that the family house and certain moveable properties of small value may be divided between the parties and the plaintiff given his 1/5th share therein. It also prayed that the balance of about Rs. 15,000 due to the decree-holder in O.S. No. 104 of 1914 be directed to be paid by the various parties according to their respective shares and, if necessary, that the family house be sold and the balance of proceeds, remaining after discharging that decree-debt be divided between the parties. One of the allegations in the plaint was that the alienations in favour of some of the alienees were nominal but it was also contended that even if the alienations were binding and supported by consideration, that would not affect the liability of the alienees to contribute their proportionate share of the family debt. There were also alternative reliefs claimed, in the event of its being held that the alienees from the several sharers and the property in their hands could not be held liable for the decree-debt. The written statements originally filed raised not merely defences to the suit as framed but also counter-claims, so to say, with reference to various assets and businesses in the possession or management of the plaintiff, and it is on these allegations that more than 30 issues were framed. After these issues had been framed, the plaintiff filed the amendment application referred to at the commencement of this judgment, because in the course of 1922 and early in 1923, the present 13th defendant had realised from the present plaintiff the balance of the decree amount in O.S. No. 104 of 191

4. The learned Subordinate Judge allowed only a limited amendment but on a revision petition filed by the plaintiff in this Court, Curgenven, J., ordered the amendment to be made as prayed for by the plaintiff. As the lower Court had made certain observations with reference to a possible defence of limitation to the claim as per the amendment petition, the learned Judge took care to make certain observations which may be referred to here. He observed.

I certainly do not wish to allow the amendment of the plaint in any such manner as will defeat the provisions of the Limitation Act. The circumstances however are somewhat peculiar. The partition suit has been going on since 1921 and after the plaint was filed, the plaintiff made the payment in question. It is rather difficult to see what course was then open to him in order to impose their respective liabilities upon the other members, the defendants in the partition suit. It would be scarcely reasonable to expect him to file a separate suit. Moreover, the debt which was thus discharged was shown in Sch. C(1) to the plaint in the partition suit, which of course now no longer represents the facts. I am in some doubt whether in such circumstances it was necessary to apply to amend the plaint and whether it would not be open to the Court trying the partition suit to give credit in its decree for the plaintiffs payment. On these points I wish to refrain from expressing any opinion.

This order makes it clear that if a plea of limitation was available to the defendants, it was not the intention of the learned Judge to deprive them of the benefit of that plea by allowing the amendment. After this amendment was made, some additional issues were framed. The learned Subordinate Judge disposed of some of them by an order dated 3rd February 1933 and he dealt with some other issues by his order dated 17th March 1933. It is by this later order that he dismissed the suit.

It will facilitate discussion to group the topics dealt with by the Court below under two heads (1) limitation and (2) res judicata. The question of limitation may be briefly disposed of. There are two issues in the case raising the question of limitation, Issue VIII which runs as follows, Whether the suit is barred by limitation, and Issue XXXIV to the effect Is the claim barred Issue VIII was raised in answer to the claim as originally framed and Issue XXXIV was framed after the amendment of the plaint. In the judgment appealed against, the learned Judge purports to deal with both the issues. His view seems to be that if the plaintiffs claim, whether as originally laid or even as the result of the amendment, is to be regarded as a claim for partition, no question of limitation will arise. In this view we concur. But he proceeded to deal with the claim introduced by the amendment on an alternative ground as well, in view of his opinion that as a suit for partition, the present suit was not maintainable. Dealing with the claim introduced by the amendment as one for contribution, he was of opinion that as an independent claim, it would be governed by Art. 99 of the Limitation Act and as such it would be barred in respect of sums recovered from the plaintiff more than three years prior to the date of the amendment application. Even while expressing this opinion, the learned Judge indicated that the proper view would be to treat this money claim not as an independent claim but only as an item in the accounts to be taken between the parties, on the partition claim. We think that this last stated view of the learned Judge is the correct view. Though Curgenven, J. did not wish to preclude the defendants from raising a plea of limitation, his observations make it clear that in his opinion the amendment did not introduce a new cause of action but merely asked the Court to take notice of events that had happened during the pendency of the suit and mould the relief accordingly: (C.f.) Variangattil Palisseri Raman Menon, Karnavan of the Tarwad v. Sankara Subba Pattars son Chandrasekharan Patter and others (1912) M.W.N. 37). The analogy of similar claims between partners is clearly in favour of the view that a single item of this kind should not ordinarily be made the subject of a separate suit for contribution but will only form part of the accounts to be taken between the parties: Cf. Sadler v. Nixon (5 B. and Adl. 936) and Pearson v. Skelton (1 M. and W. 504). The observations of the Judicial Committee in Kazim Ali Khan v. Sadiq Ali Khan (42 C.W.N. 901 = 48 L.W. 16 (P.C.) point to the same conclusion. In this view we hold that there is no substance in the pleas of limitation.

The plea of res judicata is raised by issues I and XXXVIII. Issue I refers to the right of the parties to disturb the division and allotment made by the decree in O.S. No. 90 of 191

8. Issue XXXVIII apparently refers to the ground, on which the learned Judge has dismissed the whole suit, i.e. the plea that all the claims now sought to be raised by the plaintiff should have been raised and adjudicated on in O.S. No. 90 of 191

8. It will be convenient to keep these two questions separate. So far as what may be called the plea of constructive res judicata is concerned, we are unable to agree with the view taken by the lower Court. There is some discussion in the judgment of the lower Court and there was some discussion before us as to the nature of the suit to be filed by an alienee in the position of the P.A.L. family. We do not think there is any conflict between the authorities on this point. It is not necessary for the purposes of this case to canvass the correctness of the several observations made in the course of the judgment in Manjaya v. Shanmuga (38 Mad. 684). So far as the general result of the authorities is concerned, the postion seems to us to be that as stated in Sudarsanam Maistri v. Narasimhulu Maistri (25 Mad. 149) and also in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (25 Mad. 690 at 716, 718 and 719) there can be no compulsory partial partition, whether at the instance of a member of a joint Hindu-family or at the instance of an alienee from any such member. It seems to us immaterial whether the suit by an alienee from a joint family member is to be called a partition suit in the technical sense or not. So far as the points to be determined in such a suit are concerned, there is very little difference between the law as laid down in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (25 Mad. 690 at 716, 718 and 719) and the law laid down in Iburamsa Rowthan v. Thiruvenkatasami Naick (34 Mad. 269 (F.B.) and Manjaya v. Shanmuga (38 Mad. 684). In Iburamsa Rowthan v. Thiruvenkatasami Naick (34 Mad. 269 (F.B.), the Full Bench take care to say that the alienee cannot against the will of the other coparceners insist on a partition of the alienated property alone. While it is uniformly laid down in the cases that the proper course for him will be to sue for a partition of all the family properties, it is generally recognised that this course is insisted on only with a view to give an opportunity to the other coparceners to show that consistently with the state of the assets of the family and the equities existing between the parties, it might not be possible to assign to alienors share the property which he had purported to alienate. We do not understand these cases to lay down that the coparceners who may be impleaded as party defendants in the alienees suit are bound to insist upon an adjudication in that very litigation of all questions which may properly be agitated in a partition suit between the members of the family. For instance, the other members may be satisfied that the assets of the family are so large, that the Court will have no difficulty in allotting the alienated property to the share of the alienor and thus giving relief to the plaintiff on the basis of the alienation. In such a situation, we see nothing in the authorities to compel the coparceners either to insist on a division being effected inter se between themselves or to have all questions in dispute between them settled once for all in the alienees suit itself. Even when a suit for partition had been instituted by a coparcener, it was recognised in Palaniammal v. Muthuvenkatachala Maniagarar (33 M.L.J. 759 at 780) that other coparceners might well be content to continue undivided and leave the decree only to separate the plaintiff from them. This possibility was recognised by the Privy Council when the case went on appeal before them: Palani Ammal v. Muthuvenkatachala Maniagar (48 Mad. 254 at 259 = 21 L.W. 439 (P.C.). It is thus clear that though ordinarily, it may be convenient that all questions relating to the administration of the affairs of the family should be settled in a partition suit, there is no principle of law which prevents the coparceners from restricting the scope of the suit to what may be necessary for the grant of the relief claimed by the plaintiff.

In the present case, we have already pointed out that in O.S. No. 90 of 1918, the P.A.L. family only claimed a division of the house in which they had acquired a share under their purchase and we see nothing wrong in the defendants restricting the scope of the trial in the case to that claim. It is only reasonable to hold that, whatever would have been an answer to the claim made by the then plaintiffs, must have been pleaded in that suit. It will also follow that whatever has been actually decided by the decree passed in the suit cannot be re-opened at the instance of any of the persons who were parties to that suit or their representatives. This is all that was laid down by the Judicial Committee in Nalinikanta Lahiri v. Sarnamoyi Debya (27 M.L.J. 76 = 1 L.W. 607 (P.C.). But we fail to see how it will support the view taken by the learned Judge under issue XXXVIII. Taking for instance the present plaintiffs claim that provision should be made for discharge of the liabilities of the family, the legal position is, in our opinion, as follows:To the extent to which a calculation of the liabilities of the family as they stood on the date of the alienation in favour of the P.A.L. family would have reduced the assets available for division so as to make it impossible to allot to the 5th branch and through it to the P.A.L. a fifth share in the family house, it was a necessary defence to the claim of the plaintiffs in O.S. No. 90 of 191

8. None of the parties to that suit or their representatives can now be heard to say that on proper calculation of the assets and liabilities of the family and the adjustment of equities between the parties, a decree should not have been passed in favour of the plaintiffs in O.S. No. 90 of 1918 in the terms in which the decree has actually been passed. Similarly, none of the parties to that suit or their representatives can be heard to say that the shares of the other branches should not have been fixed at one-fifth share each nor can they be allowed to disturb the particular allotment made to each branch on that basis. But we cannot carry the doctrine of res judicata to the further extent contended for before us on behalf of the respondents, namely, to the extent of precluding the taking of accounts in this suit as between the coparceners themselves or even in respect of persons not parties to the former litigation as regards the assets not then divided or as regards liabilities which were not in fact made part of the subject-matter of that suit. We cannot accede to the contention that the allotment of a one-fifth share in the house to each of the branches carried with it an implied adjudication that the allotment was made free of liabilities for family debts, if any.

Assuming that in accordance with the authorities, the plaint in O.S. No. 90 of 1918 should have been framed as a suit for general partition and not in the limited form which it actually assumed, a plea of constructive res judicata must be determined only with reference to the suit as framed and not with reference to what under the law the suit must have been. It might be that the defendants were entitled to insist on the dismissal of the suit as framed or on its conversion into a suit for general partition. But within the meaning of explanation iv to S. 11, they were only bound to plead to the suit as framed and their omission to bring in other matters will not preclude the agitation of such matters in a later suit except to the extent to which the relief awarded in the former suit will actually be jeopardised by the later suit. In this connection it is necessary to notice an argument based on issue 4 in O.S. No. 90 of 191

8. It was contended that as the result of that issue and of the finding of the Court thereon, that suit must be deemed to have been converted into a suit for general partition and that in consequence it was the duty of the coparceners to have sought an adjudication in that very suit of all questions relating to the assets and liabilities of the family. We are unable to accept this argument. The suit was not in fact convertedthe contesting defendants 1 and 2 attempted to defeat that suit if possible on issue 4 but that attempt failed. Whether that finding was right or wrong is not the question now; there is no scope for the application here of the principle relating to res judicata as between co-defendants because there was no contest between the co-defendants in the former litigation.

Mr. Sitarama Rao contended that even the plaintiffs in O.S. No. 90 of 1918 could not claim to be exempted from liability for a share of the family debts and he invited our attention to the law laid down in Venku Reddi v. Venku Reddi (50 Mad. 535 = 25 L.W. 784 (F.B.) as to the burden resting upon an alienee from a member of a joint Hindu family. It is true that the P.A.L. family as an alienee were subject to those liabilities. But so far as they sought to assert their right in O.S. No. 90 of 1918, it was the duty of the defendants to plead that P.A.L. could be granted relief only on the terms laid down in Venku Reddi v. Venku Reddi (50 Mad. 535 = 25 L.W. 784 (F.B.). As that question had not been raised in the former suit, a plea of that kind will not now be available to any of the parties of the suit as against the P.A.L. people. But as between the defendants to that suit inter se , there was no necessity to ask the Court when dealing with O.S. No. 90 of 1918 to determine the extent of the assets of the family or of its liabilities or to provide for the discharge of the latter; and as between them or their representatives we hold that the present suit is not barred by any principle of res judicata except in respect of matters actually provided for by that decree. A further question was raised before us as to the position of defendants 12 and 14 to 16 in the present litigation. The alienations relied on by them were anterior to the institution of O.S. No. 90 of 191

8. It cannot be said that for the purposes of the doctrine of res judicata , these defendants could be deemed to have been represented in O.S. No. 90 of 1918 by the alienors. Prima facie , therefore, they would not be bound by anything that was done or omitted to be done in O.S. No. 90 of 1918 nor could they claim the benefit of any such act or omission. There is, however, a plea that the alienations in their favour are benami transactions. This question has not yet been tried. If they are found to be benami transactions, nothing will turn upon their absence from the record in O.S. No. 90 of 191

8. The real owners were parties and they would certainly be bound by what happened in that litigation. Should it however be found that the alienations are true and effective it might become necessary to re-open O.S. No. 90 of 1918 on the ground that persons interested in portions of the property had not been impleaded in that suit. We do not at this stage, think it necessary or proper to say what the consequence of such re-opening will be. It will be best to leave it to the lower Court to deal with that question. We can only indicate that the decision in O.S. No. 90 of 1918 will not as such be binding on these defendants, as their interests had come into existence prior to the institution of that suit. It will also follow that these defendants cannot resist the investigation of questions of the kind indicated in Venku Reddi v. Venku Reddi (50 Mad. 535 = 25 L.W. 784 (F.B.), as regards the alienations in their favour.

As regards the other issues on which the lower Court has recorded findings or expressed opinions, it is not easy to determine how far those findings have been influenced by considerations which we have held above to be erroneous. Some of the findings are expressed only contingently or hypothetically and in some intances, they are not very definite. We think it will be best in the circumstances to set aside all the findings of the lower Court lest they should hamper the lower Court in the proper determination of the matters in dispute between the parties.

The decree of the lower Court is set aside and the case remanded for disposal on the merits in the light of the above observations. All parties will be at liberty to adduce further evidence. Though the appellant has succeeded on some of the questions of law raised in the appeal, it is not possible at the present stage, to guage the extent of his success; this will become possible only when the merits of the case have been gone into. We do not therefore think it proper to make any final order as to costs of the appeal at this stage. It will be more equitable to leave the costs of the appeal to be provided for, by the lower Court in its revised decree, as it will then be in a better position to do so.

It has been mentioned to us that the statement in paragraph 18 of the judgment of the lower Court dated 17th March 1933 that the legal representatives of the 2nd defendant and of defendants 11 and 15 have not been brought on record is incorrect. The lower Court will verify this matter. The Court-fee paid on the memorandum of appeal is directed to be refunded. As it is represented that the appellant is away in the Malay States, the certificate may be issued in the name of the appellants Advocate, Mr. P.N. Appuswami Ayyar.