MANIKBAI JIVARAJ Vs. VIRCHAND RAMCHANDRA

JUDGEMENT

(1.) Both the Courts below have dismissed the appellant's suit as being barred by the decision in the previous Suit No. 15 of 1904. In that suit she set up her right as heir of her father and upon that basis claimed that an account should be taken of the partnership between her father and the present respondents.

(2.) That suit was dismissed as being barred by limitation under Art. 106 of Schedule II to the Indian Limitation Act.

(3.) In the present suit she claims as heir of her father and mother, alleging that on her father's death, the mother was admitted into the partnership: and she prays for an account of both the partnerships. So far as the partnership with the father is concerned, the claim is barred as resjudicata by the decision in the previous suit. The question is whether the claim in respect of the partnership with the mother also is so barred. According to the principle of the decision in Guddappa V/s. Tirkdppa (1900) I.L.R. 25 Bom. 159 it would be barred, provided the appellant was aware when she filed the previous suit of the partnership with her mother. Explanation II to Section 13 of the Civil P. C. provides that "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." The word "might" presupposes that the person defending or attacking in the former suit had knowledge of the matter at the time of that suit and could have made it a ground of defence or attack therein.