A second suit for partition is maintainable if properties were excluded from the purview of the partition in an earlier suit.

( 1 ) THIS appeal by the legal representatives of defendant 4-Sri K. Venkata Rao, is directed against the Judgment and decreepassed by the learned Second Additional City Civil Judge,bangalore, dated 25-8-1987 in OS No. 7977 of 1980, whereby theplaintiffs suit for partition and possession of his l/4th share inthe suit schedule immovable properties, was decreed.

( 2 ) FOR the sake of convenience the parties are referred to by their status and ranking in the suit. Late Dr. Gundopanth and K. V. Kuppurao along with theplaintiff and defendants 1 to 4 constituted a joint Hindu family. The first defendant is the adopted son of Dr. Gundopanth, whilethe plaintiff and defendants 1 to 4 are the sons of K. V. Kuppurao. The joint family owned extensive properties in,bangalore City, including the suit schedule property situated ingundopanth Street, in the heart of the City of Bangalore. Earlier, the plaintiff had filed OS No. 70 of 1958 in the Court ofthe District Judge, Bangalore, seeking partition of his l/4thshare in the joint family properties. In the said suit, the presentsuit properties were shown as Item Nos. 4 to 6 of Schedule 'b'. The said suit came to be disposed of on the basis of Compromisepetition dated 29-6-1961. Under the said Compromise, theplaintiff having received certain movable assets gave up hisrights in respect of certain properties which were exclusivelyowned by Dr. Gundopanth; and the suit schedule properties,which had been dedicated for charitable purpose by the familywere excluded. Subsequently, the said Dr. Gundopanth filed apartition suit in OS 47 of 1970 in the Court of the Civil Judge,bangalore, against Kuppurao and his sons, inter alia, seekingpartition and possession of his share in the properties mentionedin the schedule thereto. Among other properties the instant suitschedule property was also included for partition between theparties thereto. It is pertinent to note that the plaintiff was not aparty to that suit allegedly on the ground that he had nosubsisting interest whatsoever in any of the properties sought tobe partitioned since he had relinquished his right and interesttherein under the Compromise decree in the earlier suit.

( 3 ) OS 47 of 1970 also ended in a Compromise on 11-12-1975 whereby defendants 1 to 3 and 4 to 7 partitioned the instant suitschedule property among themselves. It is the case of theplaintiff that since he was residing at Bombay all along, he wasignorant of these developments and that he came to know aboutthe partition between his father and uncle only when he came tobangalore to attend to the obsequies of his uncle Dr. Gundopanth, who died on 17-3-1980. Having thus narrated theentire course of events, right from the filing and disposal of thefirst partition suit-OS 70 of 1958 to the date of the instant suit,the plaintiff has asserted that in the circumstances he waswrongfully excluded from sharing the suit property, and that heis entitled to l/4th share therein, and equitable partition andpossession thereof, and for recovery of the mesne profits.

( 4 ) DEFENDANTS 1 to 3, who constitute one branch of the jointfamily through Dr. Gundopanth, inter alia, pleaded in theirwritten statement that since the suit property constituted aprivate trust, it was not partitioned in the earlier suit OS No. 70of 1958. As the plaintiff had separated himself from the family inpursuance of the terms of the decree in OS No. 70 of 1958 he hadno subsisting right to claim any share in the property left by Dr. Gundopanth. However, if for any reason the plaintiff is held tobe entitled to a share in the suit property, it would be only out ofthe share allotted to the branch of the joint family comprising ofdefendants 4 to 7, for which they had no objection.

( 5 ) DEFENDANTS 4 to 7, however, are the main contesting partieswho resisted the suit on various grounds. In brief, their plea isas follows: that, the plaintiff having included the instant suitproperty for partition in his earlier suit OS