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 con