The cause of action in a partition suit must be exhaustive of the whole property available for division, as far as its existence is known at the date of the plaint.

Devadoss, J.

1. Mr. Somasundaram for the appellants wants to raise the question of res judicata which, according to him, was argued before the learned Judge but was not noticed by him. He has filed an affidavit from the vakil in the lower Court that he pressed the point of res judicata. The learned Judge who is always careful to note the points pressed before him has not adverted to it in his judgment. The respondents vakil who appeared in the lower Court is now dead and in the circumstances I thought it best to allow the point to be argued. The contention is that in the previous Original Suit No. 8 of 1913 the plaintiffs husband asked for a partition of the properties not partitioned at the time of the partition and a specific issue was raised in the following terms:

2. "Whether defendants failed to include any properties in the partition deed;" and that question having been decided by the Court it is not now open to the present plaintiff to sue for the husbands share of the same property which is admittedly the family property. In dealing with that issue the learned Subordinate Judge expressed himself as follows:

I have considered the points comprised by these issues in connexion with plaintiffs D schedule and defendants 3 schedule and find both the issues against the plaintiff.

3. The question in that case was not whether all the properties of the family were included in the suit, but whether certain properties mentioned in certain schedules were the family properties or not. Therefore, it cannot be said that the issue was comprehensive enough to include all the properties belonging to the family. The property which is now in dispute is a sum of money payable by the Vizianagaram Samasthanam to the plaintiffs family on account of the Samasthanam having taken a portion of the family property for making a road; and instead of a lump sum the Samasthanam agreed to pay yearly about Rs. 5-8-0. This sum was not paid for a number of years and that is admitted by both the parties. At the time of the division this sum was not paid by the Samasthanam. It is only quite recently in 1920 the Vizianagaram Samasthanam paid this amount. The question is whether in these circumstances it can be said that this amount formed the subject-matter of the Suit No. 8 of 1913.

4. In a partition all the properties of the family should be included. It is not open to a member of the joint family to ask for a partition of a certain item and leave the rest except in cases where some of the items could not be divided by reason of their being in the possession of usufructuary mortgagees or being under a long lease or set apart for maintenance of a widow or some member of the family or some other reasons. It is not left to the option of the plaintiff in a partition suit to ask for relief in respect of certain properties and then to say that he would ask for partition of the other properties at some future time, when the circumstances above adverted to are not present. It was held in Basavana Gowd v. Doddalingappa A. I. R. 1923 Mad. 584 that two suits cannot be filed for partition simply by reason of the properties being situated in two different Presidencies, but the case here is slightly different. There is no finding that the plaintiff or the plaintiffs husband was aware of the existence of the fund payable by the Samasthanam. If they were aware of it some provision would have been made in the partition deed, Ex. 1, for its division. Mr. Somasundarams contention is that the plaintiffs husband was aware of the existence of such fund, but he did not care to include it. He wants to rely upon the statement of the defendants first witness that he was aware of it; but there is no finding that he was so aware of it. It is not proper now to say that he was aware of the existence of this fund.

5. When parties are ignorant as to the existence of some family property and divide the property that is known to them, and if afterwards it be discovered that some propert