( 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 sui

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