In a partition suit, the plaintiff is entitled to claim a decree for accounts upto the date of the final decree in respect of the joint properties and businesses. The plaintiff cannot omit to sue for any portion of his claim and then file a subsequent suit for the same.

( 1 ) THIS is an appeal under the Letters Patent against the judgment and the decree passed by one of our learned brothers, A. K. Sinha, J. in a first appeal reversing the judgment and the decree passed by the Judge, 8th Bench of the City Civil Court at Calcutta in Money Suit No. 81 of I960. The defendants are the appellants here. In the trial court the suit was dismissed, but in the first appeal the suit was decreed after the setting aside of the decision of the trial court.

( 2 ) THE relevant facts for this appeal may be stated in brief. One Jhawalal Gupta, a Hindu governed by the Benaras School of Hindu Law was the owner of several properties. He died leaving a widow and four sons. They constituted a joint undivided family. Thereafter Satya Narayan Gupta for self and representing his minor sons filed a suit in the High Court for partition in respect of the properties left by Jhawalal. There were prayers for partition of the properties and also for accounts. A preliminary decree was passed on 23-5-1952 and before the Commissioner of Partition, the plaintiff being the managing member of the undivided family filed accounts upto 31st Chaitra, 1361 B. S. corresponding to 14th April, 1055 in respect of the properties and the 'business sought to be partitioned. The Commissioner submitted a report and the court on hearing the parties accepted the Commissioner's report after some modifications therein, and passed a final decree in the suit on the basis thereof on 8-9-58. The parties, thereafter, took possession of the allotments made by the court according to the final decree. Subsequently, however, on 9-3-60 the plaintiff of the previous partition suit, Satya Narayan Gupta filed a Money Suit in the City Civil Court at Calcutta for recovery of an amount of Rs. 4572/- against the widow of late Jhawalal Gupta end the other three stepbrothers who were younger in age to the plaintiff and made defendants in the earlier partition suit. The allegations made in the plaint are that in connection with certain certificate cases started by the Income-tax Department for certain liability of the joint family of the parties and also for joint liability for payments of sale tax of the undivided business of the parties, the plaintiff Satya Narayan had to make payments to the total amount of Rs. 5265. 59 to avoid attachment of his own properties and that excluding his share of liability, the plaintiff is entitled to get the total sum of Rs. 4572/- from the defendants on account of the latter's share of the liability. It may be mentioned that some items of payments as mentioned in the plaint were made after the final decree and the rest during the pendency of the suit. The defendants who are appellants in this appeal filed a written statement denying the liability, It is stated that the suit is barred by the principles of waiver, estoppel and acquiescence, that the suit is hit by the principles of resjudicata and that till the final decree was passed in the previous partition suit, the parties lived in joint mess and the defendants were under the control and management of the plaintiff. It is further stated in the written statement that all payments were made out of the fund of the joint estate and the defendants cannot be liable for any sum. It is also stated that if there was any liability, the plaintiff would have stated before the court in the partition suit or to the Commissioner of Partition and that in the absence of such assertion or claim in the partition suit, the plaintiff is not entitled to ask for contribution towards the alleged payments after the final decree. Such right, if any, was waived by the plaintiff. The learned Judge of the City Civil Court on a consideration of the evidence and circumstances came to the finding that there was abundant evidence to prove that till the date of final decree in the partition suit, namely, 8-9-58, the plaintiff controlled the affairs of the family relating to the immovable prop