Subsequent suit filed by Co-sharer barred.

JUDGMENT:- This second appeal arises from the judgment of the Additional District Judge, Salem, dismissing the suit instituted by the appellants father, Muthuswami Gounder, (since dead, deceased) for recovery of mesne profits. Muthuswami Gounder was the son of Chinnakutti Gounder. He instituted the suit O. S. No. 167 of 1950 for partition and separate possession of his one-third share in the family properties. There was a preliminary decree on 25-9-1952 under which the appellants fathers right to a third share was declared; the other two-thirds was to be taken by Chinnakutti Goundan and his other son Subbaraya Gounder, the latter of whom is the first respondent in this appeal. Under the plaint in the partition suit Muthuswami Gounder did not pray for recovery of subsequent mesne profits. A final decree was passed on 14-3-1956. That decree did not provide for taking of accounts of the income of the family properties and allotting to the appellants father his legitimate share of the income from the suit properties received by the defendants therein subsequent to the institution of that suit. Possession of the properties in accordance with the terms of the final decree was delivered to Muthuswami Gounder on 21st July 1956. Shortly thereafter, that is, on the 10th December 1956 Muthuswami Gounder instituted the suit, out of which the present appeal arises, for recovery of Rs. 3000, his share of the income realised from the date of the plaint in O. S. No. 167 of 1950 to the date of delivery of possession, after remitting a portion of the claim. Both the Courts below have dismissed the suit on the substantial ground that it will not be open to the plaintiff to agitate in this suit any claim for mesne profits or accounts, he having failed to include that claim in the partition suit. The learned Additional District Judge who confirmed the judgment of the trial Court, accepted that the provisions of Order II, Rule 2 of the Civil Procedure Code would not apply to a claim like the present; but yet he held that where once there was a suit for partition, all claim by way of accounts in respect of the income received by the co-sharer in possession subsequent to the institution of the suit for partition, should have been made in that suit itself. I am afraid that there is no support for such a proposition. It is true that it has been laid down, and that point is well settled, that so long as the partition suit is pending, it will be open to any co-sharer to request the Court to enquire into the subsequent income from the family properties and ascertain the shares of the respective sharers and pass an appropriate decree in that suit itself. It is enough in this connection to refer a recent decision of this Court in Ponnuswami Udayar v. Santhappa Udayar, 75 Mad LW 683 : (AIR 1963 Mad 171). That however gives only an option to the co-sharer to make a claim in the partition suit, the existence of such an option cannot prevent him from agitating his claim, which arose subsequent to the filing of the partition suit, by filing a separate suit. The principle on which the Court passing the final decree in the partition suit is allowed to take an account of the subsequent income from the properties and divide the same between the sharers is, that the subsequent income forms part of the assets of the family and it will always be open to the Court passing the decree in the partition suit to divide all the assets of the family that may be disclosed, right upto the time of the passing of the final decree thereby avoiding multiplicity of suits. This is but an application of the twin principles namely of the Courts competence to take note of subsequent events and the essential character of a partition suit. Once it is held that the income received from the family properties subsequent to the institution of the suit for partition, will also form part of the assets of the family, the sharers being co-tenants it would be open to the sharers to file a