John Edge, Kt., C.J. and Blennerhassett, J.
1. This was a suit brought by several separate creditors of a debtor to avoid a deed of gift of the 1st of April 1891 in favour of the defendants Nos. 2 and 3 and made by the defendant No. 1, on the ground that it was made with intent to defeat or delsiy the several plaintiffs as creditors of the transferors and was within the purview of Section 53 of Act No. IV of 1882. Objection was taken in the first Court and in the Lower Appellate Court, in each of those Courts unsuccessfully, that there was misjoinder of plaintiffs and of causes of action. The defendants Nos. 2 and 3 have appealed and have raised the same objections.
2. On behalf of the plaintiffs, Section 26 of the Code of Civil Procedure is relied on, which section in its opening clause enacts that 'all persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative in respect of the same cause of action.' It is obvious that the controlling words are 'the same cause of action,' and that that section does not allow plaintiffs to join in one suit in respect of causes of action in which they are not all jointly interested.
3. On the other side, the appellants rely on the last paragraph of Section 31 of the Code, in which it is enacted that 'nothing in this section shall be deemed to enable plaintiffs to join in respect of distinct causes of action.'
4. That each of these plaintiffs had (assuming the facts relied upon by the plaintiffs to be true) a distinct cause of action in which none of the other plaintiffs were interested is certain. There can be now no longer any doubt, having regard to the judgment of the Court of Appeal in England in Bead v Brown L.R. 22 Q.B.D. 138, to the judgment of the House of Lords in Smurthwaite v. Hannay L.R. 1894 A.C. 404, and to the judgment of their Lordships of the Privy Council in Mussummat Chand Kour v. Partab Singh L.R. 15 I.A. 156, as to what a cause of action means and what are the limits of a cause of action. In Marti v. Bhola Ram I.L.R. 16 All. 165, a Full Bench of this Court held that the cause of action of the Code of Civil Procedure was the same as the cause of action as defined by the Master of Rolls and fry and Lopez, L. JJ., in Bead v. Brown. In Nusserwanji Merwanji Panday v. Gordon I.L.R. 6 Bom. 266, Sir Charles Sargent clearly indicated that it was not the final act of a series which constituted a cause of action, but all those facts which it was necessary for the plaintiff to prove, if traversed, to entitle the plaintiff to a decree. Such also was the opinion of a Division Bench of this Court in Salima Bibi v. Sheikh Muhammad I.L.R. 18 All. 131, in which most of the authorities bearing upon this subject were discussed. In the latter case Section 45 of the Code of Civil Procedure was fully considered, and it was pointed out that that section did not enable plaintiffs who had separate causes of action against the same defendant to join themselves and their causes of action in one suit.
5. Now in the present suit the cause of action of each plaintiff consists, amongst other things, of the separate debt due to him by the defendant No. 1, a debt in respect of which the other plaintiffs are in no wise interested. That debt is in such case a material part of each plaintiff's cause of action. The fact that the defendant, we will assume for the present purposes, fraudulently and with intent to defeat his creditors, executed a deed of gift which had the effect of defeating or delaying all his creditors, was also a material fact constituting part of the cause of action of each separate plaintiff, but the making a fraudulent deed of gift with intent to defeat or delay his creditors did not give the plaintiffs a right jointly to sue the defendants or any of them.
6. We must allow this appeal, which we do. We set aside the decrees of the Courts below with costs, and remand the suit to the first Court, and direct that Court to do what it ought to have done under Section 53 of the Code of Civil Procedure, and return the plaint to the plaintiffs, so that the plaint may be amended by the plaintiffs selecting which of them is to continue to be plaintiff in the suit, and making the necessary amendments by striking out the names of the other plaintiffs. When that is done the Court of First Instance will try the issues between the parties and decide the suit according to law.