Judgement Appeal from n judgment of the Chief Court (July 5, 1909) ; reversing a judgment of the District Court of Hanthawaddy (March 18, 1908). Prior to June C, 1907, the plaintiff and defendant, who were Burmese Buddhists, were husband and wife, and the plaintiff (appellant) shortly before that date had filed a suit for the dissolution of their marriage under Burmese Buddhist law, the marital offence alleged being that the defendant had stolen or misappropriated certain jewels which were his property. The wife denied the alleged offence, but, after putting in a defence, submitted on June 6, 1907, to a decree being made against her. On the following August 29 the appellant sued to recover from his divorced wife his property in her possession or to which he was entitled under Buddhist law on partition, after divorce because of her fault, of their joint property, and his share of the profits thence arising. The defendant in her written statement alleged that as she consented to a divorce it was one by mutual consent only, in which case the shares in the distribution would be different. As to some of the property claimed by the plaintiff she stated that it was personal to herself and not joint property ; as to the stolen jewellery claimed she asserted that it was in fact stolen, but denied that she stole it ; she denied that there was any property at the time of the divorce subject to partition, and in any case objected to the plaintiffs claim as not setting out debts for which there was a joint liability. The District Judge held that the divorce was not by mutual consent inasmuch as it had been granted on the prayer of the plaintiff after contest by the defendant. There had been no compromise or arrangement between the parties, but the defendant abandoned her defence. He found for the plaintiff, in respect of the property sued for, that he was entitled to a decree for Rs.6000 with proportionate costs, the amount claimed by the plaint being over Rs.18,000. In appeal the Chief Judge said " It has been argued for the appellant that apart from the merits the plaintiff was not entitled to any of the relief he claimed in this suit because he failed in the first suit to ask for enforcement of his rights regarding property. In appeal the Chief Judge said " It has been argued for the appellant that apart from the merits the plaintiff was not entitled to any of the relief he claimed in this suit because he failed in the first suit to ask for enforcement of his rights regarding property. This is the first matter for consideration, and if it is decided in favour of the defendant the other matters need not be gone into. After discussing various cases in the Courts of Upper and Lower Burma, the Chief Judge came to the conclusion that in Burmese Buddhist law the marital fault constitutes the cause of action for both the divorce and the separate possession of either the whole or part of the property. As the cause of action for both was the same, the plaintiff was bound under s. 42 of the Civil Procedure Code, 1882 (Order II., Code of Civil Procedure, 1908), to pursue all his remedies in the same suit, otherwise he is barred from suing on any remedy so omitted unless he obtain the leave of the Court, which was admittedly not done in this case. In arriving at this conclusion the learned Chief Judge added that he was reversing a previous judgment of the Chief Court, namely, Maung Tha Chi v. Ma E. My a (( 1900) 1 Lower Burma Rulings. 7.), in which Birks J. held that the termination of the marriage status was in itself a sufficient cause of action, and until this question had been settled the grounds for partition of the property did not arise. Accordingly the Chief Judge allowed the appeal and set aside the judgment of the District Court. J. W. McCarthy, for the appellant, contended that s. 42 was not applicable, inasmuch as the cause of action in the divorce suit was wholly different from that for the partition of the joint property. In the one case the marital offence was the cause of action, in the other the divorce granted by the decree. The appellants pro cedure was in accordance with s. 43. There was no right to partition until the divorce had been granted. Part of the claim was for recovery of the plaintiffs separate property, and to that extent it bad nothing to do with the divorce, and the fresh suit was not liable in that respect at least to the objection taken. There was no right to partition until the divorce had been granted. Part of the claim was for recovery of the plaintiffs separate property, and to that extent it bad nothing to do with the divorce, and the fresh suit was not liable in that respect at least to the objection taken. He relied on the case above cited by the Chief Judge and referred also to Maung Tha So v. Ma Min Gaung. (( 1903) 2 Upper Burma Rulings, 12.) Further than that, the point relied on by the Chief Judge was not raised by the pleadings or issues or mentioned in the first Court or in the original memorandum of appeal to the Chief Court. It was raised for the first time in an amendment to the memorandum of appeal made ten months after it had been filed, which, it was contended, ought not to have been allowed. The Court ought to have held that the point had been waived. Reference was made to ss. 541 and 542 of the Civil Procedure Code. The respondent did not appear. The judgment of their Lordships was delivered by LORD ROBSON. This is an appeal from a judgment of the Chief Court of Lower Burma on its appellate side reversing a judgment in favour of the present appellant, who was plaintiff in the action, and directing that his suit be dismissed with costs. The respondent did not appear on this appeal. The appellant and respondent were Burmese Buddhists, and up to June 6, 1907, were husband and wife. Some time prior to that date the husband filed a suit against the respondent for dissolution of the marriage. The alleged ground of divorce was that the respondent had, by sundry fraudulent devices, stolen certain jewels which were the property of the appellant. The question as to whether or not this is an adequate ground for a divorce according to Burmese Buddhist law has not been argued either in the Courts below or here, and their Lordships express no opinion upon it. It is sufficient to say that the divorce was granted, and its validity is not contested. The present dispute is concerned solely with the claim of the appellant to have the property in which the spouses were interested distributed, or dealt with according to Burmese Buddhist law. It is sufficient to say that the divorce was granted, and its validity is not contested. The present dispute is concerned solely with the claim of the appellant to have the property in which the spouses were interested distributed, or dealt with according to Burmese Buddhist law. The first point in dispute is whether the divorce was by mutual consent, or was granted on the fault of the wife. The husband filed his claim in January, 1907. In it he set forth the respondents alleged offence and he prayed for his decree on that ground alone. The respondent thereupon filed her defence denying the allegations as to her misconduct and asking that the suit be dismissed with costs. Witnesses were summoned, but on the day fixed for hearing the respondent abandoned her defence and, although continuing to deny her guilt, consented to a divorce. Judgment was thereupon given on June 6, 1907, for a decree " as prayed for." Afterwards, in August, 1907, the appellant brought the present action for the recovery of his property, which he alleged his divorced wife still fraudulently kept in her possession, and for a partition of their joint property. The shares to which the parties would be respectively entitled under the partition would vary according to whether the divorce had been granted on the ground of a matrimonial offence or had been arranged by consent, and the respondent contended that under the circumstances above stated the divorce had been by consent and had not been granted by reason of her fault. The District Judge found in favour of the appellant on this point, but the Chief Court have cast some doubt upon that finding, although in view of their decision on another point in the case, which is dealt with later on, they did not think it necessary to discuss it fully. Their Lordships, however, think it desirable to state that they agree with the judgment of the District Judge on this point. Although the respondent at the last moment abandoned her defence and consented to the decree, she certainly ought not to be put in the position of an innocent wife who has contracted for a divorce on an equal footing with her husband. Although the respondent at the last moment abandoned her defence and consented to the decree, she certainly ought not to be put in the position of an innocent wife who has contracted for a divorce on an equal footing with her husband. If she had invited her husband to enter into such an agreement before he began his action he would have been at liberty to refuse and to have insisted upon a decree establishing her guilt, in order to determine the basis upon which the subsequent partition should take place, and he was certainly placed in no worse position by the fact that he was obliged to bring the action in order to secure relief. The proceedings at law disclose, not an agreement between husband and wife, but a claim by the husband on a specific ground to which the wife in effect submitted. The ground on which the Chief Court set aside the decree of the District Judge in the present action was that the appellant had no right to a partition of property unless he asked for it the action for divorce. There has been some conflict of decisions in the Burmese Courts upon this point, and the Chief Court held, on this appeal, that the matter being one of procedure must be determined by the Civil Procedure Code, ss. 42 and 43. Those sections are aimed against a multiplicity of suits in respect of the same cause of action and, shortly stated, they enact that if a plaintiff fails to sue for the whole of his claim or remedy in respect of a particular cause of action he shall not afterwards sue in respect of the portion so omitted or relinquished. It is to be observed that the objection founded upon these sections should have been treated as a preliminary point, but no notice of it was given by the respondent in the present action either in her defence, or at the trial, or in the grounds of appeal 1 as first delivered. Under these circumstances, their Lordships are of opinion that she was too late to raise the point in the Court of Appeal except upon terms which would have indemnified the appellant for her omission to raise it at the proper time. With- regard, however, to the point itself, their Lordships are of opinion that ss. Under these circumstances, their Lordships are of opinion that she was too late to raise the point in the Court of Appeal except upon terms which would have indemnified the appellant for her omission to raise it at the proper time. With- regard, however, to the point itself, their Lordships are of opinion that ss. 42 and 43 of the Civil Procedure Code were not intended to bar an action like the present. The cause of action for the divorce was the misconduct of the wife, but the cause of action for the partition was the divorce of the wife founded on that misconduct. The partition may no doubt be treated as relief consequential upon the divorce, and therefore dealt with in the same suit, but the evidence is different, and the ground of divorce must be first and separately proved as a distinct cause of action before any question of partition can properly arise. There is, therefore, not necessarily any hardship on the defendant in severing the two matters. Indeed it may, and generally would, be the more convenient course finally to settle the question of the divorce and the misconduct before entering upon an inquiry as to partition which would be altogether unnecessary if the decree were refused, or would be put on a different basis if the misconduct were disproved. If the Court should be of opinion that a petitioner has unnecessarily severed his claim for a partition from his claim for a divorce, it may, of course, punish the plaintiff by the exercise of its discretion as to costs, but their Lordships are of opinion that such a severance , does not come within the mischief aimed at by ss. 42 and 43 of the Civil Procedure Code so as to bar the claim to a partition which may be founded on the decree for divorce itself. Their Lordships will therefore humbly advise His Majesty that this appeal ought to be allowed, the decree of the Chief Court set aside, and that of the District Court restored, with costs in both Courts. The respondent will pay the costs of the appeal.