(DUVVURI) SUBRAMANIAM Vs. (DUVVURI) LAKSHMINARASAMMA

JUDGEMENT

(1.) Mr. Somasundaram for the appellants wants to raise the question of res judicata which, according to him, was argued before the learned Judge but was not noticed by him. He has filed an affidavit from the vakil in the lower Court that he pressed the point of res judicata. The learned Judge who is always careful to note the points pressed before him has not adverted to it in his judgment. The respondent's vakil who appeared in the lower Court is now dead and in the circumstances I thought it best to allow the point to be argued. The contention is that in the previous Original Suit No. 8 of 1913 the plaintiff's husband asked for a partition of the properties not partitioned at the time of the partition and a specific issue was raised in the following terms:

(2.) "Whether defendants failed to include any properties in the partition deed;" and that question having been decided by the Court it is not now open to the present plaintiff to sue for the husband's share of the same property which is admittedly the family property. In dealing with that issue the learned Subordinate Judge expressed himself as follows: I have considered the points comprised by these issues in connexion with plaintiff's D schedule and defendants 3 schedule and find both the issues against the plaintiff.

(3.) The question in that case was not whether all the properties of the family were included in the suit, but whether certain properties mentioned in certain schedules were the family properties or not. Therefore, it cannot be said that the issue was comprehensive enough to include all the properties belonging to the family. The property which is now in dispute is a sum of money payable by the Vizianagaram Samasthanam to the plaintiff's family on account of the Samasthanam having taken a portion of the family property for making a road; and instead of a lump sum the Samasthanam agreed to pay yearly about Rs. 5-8-0. This sum was not paid for a number of years and that is admitted by both the parties. At the time of the division this sum was not paid by the Samasthanam. It is only quite recently in 1920 the Vizianagaram Samasthanam paid this amount. The question is whether in these circumstances it can be said that this amount formed the subject-matter of the Suit No. 8 of 1913.