1. At the hearing of this suit Mr. Setalvad for the first defendant raised amongst others the following issues:
(4) Whether the Court has jurisdiction to entertain this suit.
(5) Whether the suit is not bad for reason of misjoinder of causes of action and of parties.
2. The learned Counsel after the issues had been raised and the Advocate-General had stated the facts of the case applied that the two issues Nos. 4 and 5 which involved questions of law should be tried first. The Advocate-General did not object to this being done. Order XIV, Rule 2, provides that where in the same suit issues both of law and of fact arise and the Court is of opinion that 'the case or any part thereof may be disposed of on the issues of law only it shall try those issues first.'
3. On the pleadings and the undisputed facts it did appear to me possible that the suit, or at all events a part of this suit, may be disposed of by determination of these issues of law and I felt that it was desirable in the interest of the parties that these issues should be tried first.
4. It seems to me, however, that the decision of issue No. 4 as to the jurisdiction of this Court depends on my decision on issue No. 5 as to whether this suit is bad by reason of misjoinder of causes of action and of parties and the results that may follow from my decision of that issue. I will, therefore, in the first instance confine my attention to the consideration of the question for decision involved in that issue. To arrive at a correct decision on the issue as to misjoinder it is necessary that the facts must be clearly appreciated.
5. The undisputed facts are to be gathered from the plaint in this suit and the plaint in suit No. 8 of 1906 which is referred by the plaintiff herein in para, 6 of her plaint.
6. One Vithoba Khimdappa Gulve died on the 11th of September 1891 leaving a will dated the 27th of January 1890. The 9th and 10th defendants Nilkant Venayak Chatre and Shanlcer Ramchander Phatarpikar were appointed executors under the will. Probate of the will was granted to the two executors by the Thana District Court on the 28th of October 1891. The 9th and 10th defendants are made parties to this suit in their capacity as executors of Vithoba's will.
7. The will of Vithoba directed that the residue of his estate should be divided in two parts and one of such parts should be given to Shanker Vithoba Gulve. The plaintiff claims to be Shanker's sister. The Advocate-General in his opening stated that Shanker and the plaintiff Umabai were the illegitimate children of Vithoba by a mistress named Paroo Pringlay. The first defendant's counsel does not admit that the plaintiff is the sister of Shanker. He said his client had no knowledge whether this statement was correct or not.. For the present purposes it is immaterial to consider the question whether Umabai is or is not the sister of Shanker. I will assume that Umabai the plaintiff is the sister of Shanker and as such his next-of-kin.
8. Vithoba Khimdappa Gulve during his lifetime had, on the 4th of December 1883, lent and advanced to the members of a Hindu family of Bombay named Patkar the sum of Rs. 11,000 on the mortgage of an immovable property belonging to them and situated at Bhuleshvar in Bombay. This mortgage was outstanding at the time of his death. Vithoba's executors divided his property in two parts and made over one of such parts to Shanker. The mortgage was included in the part of Vithoba's property made over to Shanker. The executors did not at any time execute any written assignment or transfer of the mortgage. Shanker died on the 23rd of January 1903 intestate and without any issue. He left him surviving his widow Girjabai who was also known as Umabai. Although in Suit No. 8 of 1908 she is spoken of only as Umabai, I will continue to call her Girjabai in order to prevent any possible confusion arising from this name being the same as that of the plaintiff. The mortgage moneys were still outstanding when Shanker died, one of the terms of the mortgage being that the mortgage moneys were to be repaid ten years after the date of the mortgage.
9. Girjabai was a minor when her husband died, and the District Court of Poona in June 1903 appointed her father Balvantrao Suryavanshi the guardian of her person and property. Some time in 1904 Girjabai by her guardian applied to the District Court at Poona for leave to adopt her minor brother and having obtained such leave she adopted him. This adopted boy Bhau Balvant Suryavanshi, who, after the adoption, was called Vithal Shanker Gulve, is the first defendant in the suit. Shortly after the adoption Girjabai died on the 3rd of January 1905.
10. On Girjabai's death the Poona Court appointed two persons as guardians of the person and property of the minor Vithal Shanker Gulve.
11. In the beginning of 1905 the said minor Vithal by his guardians as his next friends filed a suit against the members of the Patkar family to realise the mortgage debt. The mortgaged property being in Bombay the suit was filed in this Court.
12. When that suit was filed the plaintiff alleged that the amount due to him under the Indenture of mortgage with interest up to the 29th of October 1905 was Rs. 32,018-2-3 and he claimed to recover that sum and further interest. The executors of Vithoba's will not having executed any legal assignment or transfer of mortgage were made co-defendants in the suit and they were defendants Nos. 8 and 9. This suit was heard before me on the 19th of February 1907. At the hearing it was proved before me that the guardians of the minor plaintiff and the first seven defendants had arranged a compromise of the claim for Its. 20,000; that this compromise was submitted to the District Court of Poona; and that that Court had sanctioned the proposed compromise. I was asked to pass a decree in terms of the compromise. As the Court, whose ward the plaintiff was, had sanctioned the compromise, I passed a decree by consent of all parties in terms of the compromise and sanctioned, the same as being for the benefit of the minor plaintiff. When that suit was called on, the 8th and the 9th defendants, the executors of the will of Vithoba, did not appear but, while I was recording evidence, counsel appeared on their behalf and brought to my notice the fact that the adoption of the plaintiff in the suit was disputed in a suit pending in the Poona Court. It then transpired that Vithal had filed a suit in the Subordinate Judge's Court at Poona to recover the keys of a safe and certain documents from Sirdar Natu and that Sirdar Natu had put in a written statement alleging that Vithal's adoption was not valid and asking that Shanker's sister Umabai should be made a co-plaintiff. On being apprised of this fact I felt that Umabai's interests should, in some way, be safeguarded and at my suggestion the plaintiff undertook to allow the amount realised to remain with his attorneys for six months to enable Umabai to establish her contention that the adoption of the plaintiff in that suit was invalid and that she as next-of-kin was entitled to the property left by her brother Shanker. The plaintiff's attorneys were directed to give notice of the decree to Umabai. The consent decree in Suit No. 8 of 1906 is Exhibit No. 1 in this suit.
13. It is proved before me in this suit that the mortgagors paid the amount for which the claim of Vithal was compromised and on such payment in terms of the arrangements arrived at between the parties, the executors of Vithoba executed a re-conveyance of the mortgaged premises on the 18th of July 1907 and the guardians of Vithal executed the same re-conveyance On the 27th of July 1907.
14. The reconveyance in favour of the mortgagor is Ex. No. 2.
15. The first defendant in this suit is Vithal Shanker Gulve, the son adopted by Girjabai the widow of Shanker after his death.'
16. Defendants Nos. 2 to 8 are the members of the Patkar family the mortgagors who had originally mortgaged their Bombay property to Vithoba Shundappa Gulve.
17. Defendants Nos. 9 and 10 are the executors of the will of Vithoba.
18. The plaintiff says that Shanker before his death had given instructions to Girjabai that she should adopt one of her sons; that her sons were available for adoption, that the adoption by Girjabai of the plaintiff in contravention of her husband's injunction is invalid and inoperative, and that she as the sister and next-of-kin of Shanker is entitled to the whole of the property left by Shanker.
19. The plaintiff then impeaches the compromise of the claim made in Suit No. 8 of 1906. She says she protested against the compromise before the consent decree was taken and in support of her statement she produces correspondence which is collectively marked Ex. B. She contends that the consent decree is not binding on her and that the same ought to be set aside.
20. The reliefs that the plaintiff claims in this suit shortly put are that it may be declared that the first defendant is not the validly adopted son of Shanker and that she as the sister of Shanker may be declared to be the sole heir of Shanker and as such entitled 'to the right, title and interest of the said deceased' in the mortgage in the plaint mentioned; that it may be declared that the decree in Suit No. 8 of 1906 is not binding on her; and that an order may be made setting the same aside' as against her. She then prays that defendants Nos. 2 to 8 may he ordered to pay to her the full amount that may be found due at the foot of the mortgage and that in default the mortgaged premises may be sold. In. the alternative she prays that if the consent decree be not set aside then it may be ordered that the amount received under the compromise may be paid to her. She prays for other incidental reliefs which I do not think it is necessary to refer to.
21. The question for the consideration of the Court on the facts as set above is, in the first instance, whether the suit as constituted is bad by reason of misjoinder of causes of action and of parties.
22. Section 45 of the old Civil Procedure Code dealt with the joinder of several causes of action in the same suit and Section 28 dealt with the joinder of several defendants in one suit.
23. Rule 3 of Order I is now enacted in the place of Section 28 of the old Code and Rule 3 of Order II takes the place of Section 45.
24. The language of Rule 3 Order II is the same as that of Section 45 of the old Code but there is considerable difference in the provisions of Rule 3 of Order I and these of Section 28.
25. The rule now governing the joinder of several defendants in the same suit provides that-
All persons against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in alternative, where if separate suits were brought against such persons any common question of law or fact would arise, may be joined as defendants in the same suit.
26. In reading this rule it seems to me quite obvious that the word same' which precedes the words 'act or transaction' governs also the words 'series of acts or transactions' and must be read before those words also. It seems to me, therefore, that the first condition to be fulfilled before joining several persons as co-defendants in the same suit is that the right to relief sought in the suit must arise against all the defendants from the same act or transaction or from the same series of acts or transactions. The second condition to be fulfilled under the rule is that some common question either of fact or law should arise against the defendants if separate suits were brought against such persons.
27. In Stroud v. Lawson (1898) 2 Q.B. 44 : 67 L.J. Q.B. 718 : 78 L.T. 729 : 46 W.R. 626 the Court of Appeal had Order XVI, Rule 1, under their consideration. That is an order providing for the joinder of several plaintiffs in the same suit but the language of the rule is exactly the same as the language of our Rule 3 Order I. Lord Justice Vaughan Williams, in constructing the rule before the Court, at page 54 of the report, says:
28. The two conditions, namely, that the right to relief must arise from the same transaction and that there must be a common question of law or fact, are not alternative conditions. If that had been meant to be so the wording of the rule would certainly have been different as for instance by the insertion of the simple word ' or ' before the word 'where'.'
29. It seems, therefore, quite clear that before a plaintiff can join several defendants in. the same suit both the conditions laid down in the rule must be fulfilled, first, the relief sought against the defendants whether jointly, severally, or in the alternative, must arise from the same act or transaction or the same series of acts or transactions, and, secondly, there must arise between the plaintiff and all the defendants some common question of law or fact.
30. Then again, under rule 3 of Order II, the plaintiff is allowed to unite in the same suit several causes of action against the same defendant or the same defendants jointly.
31. Since I discussed the question of misjonder of parties and of causes of action in Mavji Manji v. Kuverji Narronji 31 B. 516 : 9 Bom. L.R. 482 the new Civil Procedure. Code, incorporating in it many-more rules of English practice and procedure than were to be found in the old Procedure Code, has come into operation and a great many Indian cases based on the construction of the language of Section 28 of the old Code are of no value. But we have, however, Indian authorities dealing with general principals and the policy of the law on the question now under my consideration and I think they are still very useful guides.
32. In Narsingh das v. Mangal Dubey 5 A. 163 a Full Bench of that Court held that a plaint had been properly rejected because, the suit was open to the objection that different causes of action, against different defendants separately, had been joined in the same suit. In the course of the judgment it is said:
The plaintiff has united different causes of action in one suit against different defendants who are not jointly liable in respect of each and all of such causes of action-a mode of procedure that the law does not sanction.
33. This statement of the law by the Full Bench of the Allahabad High Court is important having regard to the fact that the language of Section 45 of the old. Code and that of Rule 3 Order II of the present Code which deal with the joinder of causes of action against several defendants is the same. As I read the judgment it lays down that the meaning of the word jointly' in the old section, and, therefore, in this rule, is that all defendants in a suit must be jointly liable in respect of each and all' of the causes of action which the plaintiff unites against the defendants in the same suit.
34. That this is the correct reading of the Full Bench judgment appears from the decision in Bhagwati Prasad Gir v. Bindeshri Gir 6 A. 100 where Mr. Justice Straight delivering the judgment of the Court and speaking of the test of the applicability of Section 45 of the old Code says:
Joint interest in the main question raised by litigation is a condition precedent to the joinder of several causes of action against several defendants.
35. The only other Indian case, which I think it is necessary to refer to, is that of Mullick Kefait Hossein v. Sheo Pershad Singh 23 C. 821. There again a division Bench, consisting of Mr. Justice Beverly and our late Chief Justice Sir Lawrence Jenkins, had under their consideration Section 45 of the Code. In the course, of their judgment the learned Judges say:
There is no provision in the Code allowing distinct causes of action, against distinct sets of defendants, that is to say, causes of action in which the defendants are not all jointly interested, to be united in the same suit.
36. Turning to the English practice we find that Rule 1 of Order XVIII provides that subject to the rules, of that Order the plaintiff may unite in the same action several causes of action. In Burstall v. Beyfus the Lord Chancellor Lord Selbourne says:
To bring into one claim distinct causes of action against different persons neither of them having anything to do so with the other (and only historically connected...) is not contemplated' by Order XVIII, Rule 1 which authorises the joinder not of several actions against distinct persons but of several causes of action.
37. The result of the authorities seems to me to be that the plaintiff may, in one action, unite several causes, of action against several defendants provided that all such defendants are 'jointly liable in respect of each and all of such causes of action' and that the condition precedent to the plaintiff being allowed to join several causes of action against several defendants is that such defendants must all 'have a joint interest in the main question raised by the litigation' and that causes of action joined in one suit against several defendants must be causes of action in which 'the defendants are all jointly interested.'
38. It is not necessary that every defendant should be interested as to all the reliefs claimed in the suit (Order I, Rule 5, Civil Procedure Code) but it is necessary ' that there must be a cause of action in which all the defendants are more or less interested although the relief asked against them 'may vary' (Annual Practice, 1909, p. 163.)
39. Keeping these requirements of the law in view let me now turn to the facts of this case and see weather these requirements are fulfilled in this suit.
40. The principal defendant in this suit is the first defendant Vithal Shanker Gulve and the main question in this litigation is whether his adoption by Girjabaiis good and valid in law as he contends it is or is invalid and inoperative as the plaintiff contends. This is the only question in this suit in which he is interested. If he is declared the validly adopted son of Shanker the suit comes to an abrupt termination-none of the other questions in the suit which affect the other defendants would ever arise. He would then be the owner of the property left by Shanker including the mortgage made by the family of defendants Nos. 2 to 8 in favour of Vithoba. He sued to recover the moneys due under the mortgage; the Court whose ward he was sanctioned a compromise of that suit; the Court passing the decree has certified that the compromise was beneficial to him; the moneys decreed are in the hands of his solicitor, the decree is binding on him; and neither he nor the other defendants in the suit raise any question whatever in respect of the mortgage, or the consent decree in Suit No. 8 of 1906. As I observed above the validity of his adoption is the only question in which the first defendant is interested. Directly that is established the suit fails and while that question is tried the other defendants have nothing to do but to sit with folded arms and watch the result of the fight between the plaintiff and the first defendant. I have noticed what the result of the suit would be if the first defendant's adoption is held to be valid. Now take the other possible result. Suppose the Court conies to the conclusion that the first defendant's adoption is invalid. He immediately loses all interest in the suit. He would then have no interest in Shanker's property and it would be a matter of no interest to him whether the plaintiff succeeds or fails in her contentions against the other defendants. It matters nothing to him whether the decree in Suit No. 8 of 1906 is held binding on the plaintiff or not. It matters nothing to him whether the compromise between himself and defendants Nos. 2 to 8 is held binding on the plaintiff or not. It matters nothing to him whether defendants Nos. 2 to 8 have to pay Rs. 20,000 or Rs. 82,000 and more under the mortgage. The main and the only question he is interested in this litigation is to prove the validity of his adoption.
41. Now let me turn to the other defendants. The second set of defendants are defendants Nos. 2 to 8-the members of the Patkar family, the mortgagors. What are the questions in the suit between them and the plaintiff? What is the plaintiff's cause of action against them? The plaintiff contends that the compromise of the mortgage debt effected between the first defendant and these defendants is not binding on her. She claims to be entitled to recover the whole amount due under the mortgage. I assume' that when the Poona Court sanctioned the compromise of a claim of over Rs. 32,000 for Rs. 20,000 it must have taken into consideration the possibility of the mortgagors being able to reduce the claims originally made in Suit No. 8 of 1906. If the plaintiff is declared the beneficial owner of the mortgage the mortgagor-defendants would be entitled in the event of the compromise being held not binding on the plaintiff to plead all their defences to the claim as originally made. They would be entitled to urge all those contentions for the reduction of the claim which must have been submitted to the District Court at Poona in support of the compromise. Besides this other defences are open to them. They would say the plaintiff knew of the intended compromise before the decree was taken and took no steps to prevent the decree being passed. On the 30th of January 1907 she was informed of the terms of the compromise and told to take what steps she liked (See Ex. B). The decree was not taken till the 19th of February 1907 and she took no steps to intervene. These defendants would also raise the question whether the plaintiff is entitled to re-open the question in this suit, the executors of this original mortgagee in whom the legal estate had always remained having executed a reconveyance of the mortgaged premises before the plaintiff filed this suit. If the plaintiff succeeded in her main contention against the first defendant and then is allowed to proceed with the second branch of her case against the 2nd set of defendants further complications would arise because it appears from the written statement of the first defendant that on the property being re-conveyed to them, defendants Nos. 2 to 8 have sold the same and the purchaser whose title, would be jeopardised is not a party to the suit.
42. The first defendant has not the smallest interest in any single one of the questions that would arise between the plaintiff and the other defendants.
43. It will thus be seen that the questions arising between the plaintiff and the first defendant and the questions arising between the plaintiff and second sot of defendants are totally distinct and different. There is no common question of fact or law which affects all the first eight defendants.
44. Then take the case of the defendants Nos. 9 and 10. What is the plaintiff's cause of action against them? They were formal parties to the first suit No. 8 of 1906 because they had not assigned or transferred the mortgage to the plaintiff in that suit. They executed a re-conveyance when the person whom they believed to be the beneficial owner of the mortgage-debt asked them to do so. It is difficult to conceive what the plaintiff's cause of action is against this, the third set of defendants. I searched in vain through her plaint to find out what her cause of action is against these defendants and what relief she claims against them. The only possible complaint that she could make against them is that they joined in re-conveying the property.
45. It will thus be seen that all the defendants in the suit are not jointly liable in each and all of the causes of action united in this suit nor are they all jointly raised by this litigation.
46. It seems to me that in this suit the plaintiff has distinctly combined at least two separate suits. It also appears to me that she has made her claim against defendants other than the first defendant much too prematurely. There is no dispute that the first defendant has, as a matter of fact, been adopted by Shanker's widow Girjabai. He is to all intents and purposes the owner of all Shanker's property till such time as his adoption is set aside and declared invalid by a Court of law competent to try that question. Till she succeeds in establishing the invalidity of the adoption of the first defendant, Vithal, she has no right to sue the other defendants in respect of property to which her right is not established. All the property left by Shanker is vested at present in the first defendant and the plaintiff has launched this litigation against the other defendants without having established her right to the property in respect of which she sues. The suit as constituted must in my opinion cause considerable embarrassment to the different defendants.
47. Under these circumstances I have no option but to hold that the plaintiff has clearly misjoinedin this suit both parties and causes of action. I would like to say here that even if the conclusion to which I have arrived had been different I would still have held that the causes of action joined in this suit could not conveniently be tried or disposed of together and considered what would have been the right order to make under the discretion vested in the Court by Rule 6 of Order II.
48. Having, however, come to the conclusion that the suit as constituted is bad by reason of misjoinder of parties and of causes of action I find the 5th issue in the affirmative.
49. I will give the plaintiff the option of electing against which defendant or defendants she proposes to go on with the suit and when she has made her election I will proceed to consider my decision on the 4th issue as to whether this Court has jurisdiction to entertain the suit against the particular defendant or defendants against whom the plaintiff elects to proceed.