( 32 ) THE contention pressed upon us by Sri. Somasundaram is that an issue relating to a share of the 4th defendant was raised in that suit and that issue having been decided; against him that is conclusive against him. The 4th defendant was not prevented from resting his claim to a share on the alternative basis also i. e. , under the will. Since he had not urged the alternative ground in that suit he is debarred from doing it in the present suit by force of Explanation 4 to S. 11 Civil Procedure Code.

( 33 ) IN support of this theory, a reliance is placed on Sree Muthoo Raghunadha Periyaoodya Taver v. Katama Nachiar, 11 Moo Ind App 50 (PC ). In that case, there was an earlier suit instituted in 1832 for the recovery of the zamihdari of Shiva Ganga and there was an issue relating to the validity of a testamentary paper, but finally the party who claimed under that testamentary disposition rested his case on the assumption of the zamindar being undivided and abandoned his claim under the alleged will. A decision was given against him on the ground that the zamindari was a self-acquired one and therefore the question of division or no division was immaterial. Thereupon, a fresh suit was instituted for the purpose of establishing the will. It was held by the Privy Council that the decision in the prior suit was final so far as it concerned that will as its validity was properly at issue in prior litigation and that was abandoned. We cannot derive any assistance from that case. There, an issue touching upon the validity of the will was specifically raised, but it was abandoned. Further, the plaintiff could have founded his claim upon the will alternatively in the prior suit. It was in such a situation that their Lordships applied the principle of res judicata.

( 34 ) DOORGA Pershad Singh v. Doorga Konwari, ILR 4 Cal 190 (PCJ is also another instance of the same principle. There a suit filed by a Hindu widow governed by the Mitakshara as the heiress of her deceased son was decreed. One of the parties to that Suit brought a fresh suit alleging a family custom which excluded female heirs and gave him a preferential right among the male heirs. It was held that plea was not open to him in the second suit by virtue of the doctrine of res judicata. The reason of the rule there is that he could have set up this defence and if proved would have negatived the claim of the plaintiff in the earlier suit on that objection. Masilamania Pillai v. Thiruvengadam Pilla, ILR 31 Mad 385 and Fateh Singh v. Jagannath Baksh Singh, ILR 47 All 158: (AIR 1925 PC 55) also illustrate the same proposition.

( 35 ) WE do not think these cases have much of a bearing on the present enquiry. In our judgment, there is no scope for extending the doctrine of res judicata to this case. The subject-matter of the two suits as also the capacities in which they were brought are altogether different. The object of the first suit was to obtain a declaration that the will was forged one whereas in the present one the purpose is to get legacy given under the will. Therefore, the area and scope of the previous litigation are different from those of the present one. It is true in O. S. 38/1943 issue 5 bore on the right of the then plaintiff to a share in the partnership. But it should be remembered that that issue was founded upon a pleading that the suit was not maintainable since he had no interest in the estate that was the subject of the will of late Venkatasubbarao. That issue therefore became germane to the decision of the question as to the status of the plaintiff to maintain the suit. That this is so clearly appears from the judgment in that suit. In discussing the maintainability of the suit this is what the Subordinate Judge says: "in para 11 of the plaint, the only ground given by the plaintiff as cause of action to file this suit is that he has got an interest in the Masulipatam Timber Depot of Jaldu Venkata Subbarao. Since I have found that he has no sort of inte

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