1. This is an appeal from an order of remand and is connected with two other first appeals from order which are numbered as 184 of 1928 and 217 of 1928. These three appeals arise out of three suits for recovery of money based on promissory notes against the same set of defendants.
2. In first appeal from order No. 183 of 1928, the suit was instituted by Shyam Behari Mal on 16th May 1927, in the Court of the Subordinate Judge of Azamgarh for recovery of Rs. 3,958-8-0 principal and interest on a promissory note dated 20th March 1926, which had been executed by Ram Ghulam Mal defendant 1 in plaintiffs' favour. Defendants 2 and 3 are the sons of defendant 1 and members of a joint family with him and the plaintiffs sought to fix the liability upon the sons upon the ground that the money was borrowed to meet a legal necessity. The other defendants were three idols of a Hindu temple namely Padam Nal, Sri Ramji, Lachhmanji and Jankiji. These were impleaded as defendant 1 was alleged to have executed in their favour a fictitious wakfnama of the entire property owned and possessed by him on 6th September 1926, with the intention of evading the payment of his just debts which were due to the plaintiffs and other creditors.
3. The relief claimed in the suit were only two. The plaintiff prayed for a decree for Rs. 3,959-8-0 principal and interest etc., against defendants 1, 2 and 3. The relief claimed against defendant 1 was to a certain extent particularised in so far that the plaintiff claimed that the amount be realised from the person and all the family property owned and possessed by defendant 1 and entered in the document known as the wakfnama dated 6th September 1926. The other relief was of a declaratory character and related to the wakfnama. The plaintiff prayed for a declaration that the document known as the wakfnama dated 6th September 1926, was vitiated by fraud and as such was null and void and that the property covered by the said instrument was liable to be attached and sold in satisfaction of the plaintiff's claim.
4. The suit which gave rise to first appeal from order No. 184 of 1928, was instituted by Oudh Behari Mal on 4th June 1927. The claim was for recovery of Rs. 3,980-10-0 on a promissory note executed by Ram Ghulam Mal in favour of the plaintiff on 30th October 1925. The sons were charged with liability on the ground of legal necessity and the wakfnama in favour of the idols was impugned on the ground of fraud. A decree for money was, therefore, claimed against all the defendants and a relief for a declaration that the wakfnama was null and void was also added.
5. First appeal from order No. 217 of 1928, arose out of a similar suit filed by Bir Bahadur Sahi for recovery of his money due on a promissory note dated 15th September 1925, executed by defendant 1 in his favour. The allegations upon which the suit proceeded and the reliefs claimed were similar to those in the last mentioned suit.
6. It will be seen from the above that in the suit first mentioned, no money decree was claimed against the idols. In the other two suits, the plaintiffs sought to recover their dues not only from defendants 1, 2 and 3 but also from the idols on the ground that the said idols filled the jural capacity of a universal donee and were liable under Section 128, T.P. Act, for all the debts due by the donor.
7. The suits were defended on a number of grounds, most of which are not material for the purpose of these appeals. It was contended that the money had been borrowed for the benefit of a certain firm known as Jagat Narain Maha Prasad of which Ram Ghulam Mal was one of the partners, that the money had not been borrowed by Earn Ghulam Mal on his own account or for the joint family of which he was a member, that Ram Ghulam Mal, on the date of the execution of the wakfnama and after, was possessed of considerable property which had not been made wakf of, that Section 128, T.P. Act, did not apply, that the Hindu idols were not liable for the debts and had been wrongly impleaded and that the plaintiff's suits were bad for misjoinder of parties and causes of action.
8. A large number of issues appear to have been raised including an objection as to the constitution of the action, which appears to have been taken at the earliest opportunity. Evidence was recorded upon the entire case. The learned Subordinate Judge did not decide the case upon a preliminary point but gave his findings upon all the issues.
9. The learned Subordinate Judge decreed the suit of Shyam Behari Mal against defendants 1 to 3. Ho found that the claim was bad against the idols on the ground of misjoinder of parties and causes of action. He, therefore, disallowed the claim for the declaration relating to the wakfnama with permission to the plaintiffs to bring a, fresh suit, if and when necessary.
10. The learned Subordinate Judge held as a matter of law that where a small portion of the property has not been included in the gift but the bulk of the property has been donated, the donee is nevertheless a universal donee under Section 128, T.P. Act. In this view and having regard to the fact that a money decree had been claimed by the plaintiffs against the idols, as also against defendants 1 to 3, the Subordinate Judge passed a decree in the other two suits against all the defendants.
11. On appeal, the learned District Judge was doubtful as to whether the idols answered the description of a universal donee as understood in the law of transfer. He observes:
It is also very doubtful if defendant 4 can be regarded as the universal donee for unless it is proved that defendant 1 transferred all his property, moveable and immovable to him he cannot become the universal donee.
12. The learned District Judge did not determine the question whether as a fact defendant 4 was a universal donee and the reason assigned for not doing so is that:
the question of multifariousness can be decided only on the allegations made in the plaint, and according to the plaintiffs all the property has been transferred to him.
13. The lower appellate Court was not justified in narrowing down the point under enquiry to the plea of multifariousness. Where the settlor is possessed of property which has not been either gifted or endowed, the donee of the property cannot be held to have become a universal' donee under Section 128, T.P. Act. The essential condition is that the gift must in such a case consist of ''the donor's whole property.' If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. The creditor is entitled to the benefit of Section 128, T.P. Act against a person who is a universal donee and nothing short of a universal donee. If it turns out on the taking of evidence that the entire property belonging to defendant 1 has not been gifted to defendant 4, there has unquestionably been a misjoinder of parties and causes of action in the suit and the claim against defendant 4 must on that ground be dismissed. It may be permissible to the plaintiff to institute a separate suit against defendant 4 on the ground that the wakf of gift in his favour is a colourable transaction and is obnoxious to the provision of Section 53. T.P. Act. It may be equally open to defendant 4 to resist this or a separate action on the ground that the donor or settler was possessed of other properties which were sufficient to meet the liabilities of the settlor and that the instrument of trust was therefore not open to any challenge.
14. The trial Court held that the loan was taken from Oudh Behari Mal for the use of the joint family and from Shyam Behari Mal and Bir Bahadur Sahi for the firm Jagat Narayan Sahai Prasad, that the money was borrowed through the instrumentality of Ram Gulam Mal, defendant 1, who is the manager of the family but that the money was borrowed by him in his personal capacity and that therefore defendants 1 to 3 were jointly and severally liable for the same.
15. These findings were impugned by the defendants before the lower appellate Court but there was no adjudication of the issues raised.
16. The lower appellate Court held that the suit was bad for multifariousness and that having regard to the constitution of the action the suit could not proceed in the form in which it was brought and that the plaintiffs should be directed to amend their respective plaints. It accordingly allowed the appeal and ordered the case to be re turned to the learned Subordinate Judge for trial on the merits after allowing the plaintiffs to amend the plaint under Order 6, Rule 17, Civil P.C., on payment of Rs. 50 damages.
17. The plaintiffs contend in their appeal to this Court that the three suits were not vitiated by misjoinder of parties or by causes of action and that the order of remand passed by the lower appellate Court was illegal.
18. The trial Court not having disposed of these suits upon a preliminary point within the meaning of Order 41, Rule 23, Civil P.C., the order of remand was not justified. The case had been tried by the first Court on the various issues. The parties had devoted a lot of labour time and expense in adducing evidence. It was not desirable to direct a remand in such a case even if it might be permissible to do so. If the action in the form in which it is brought was bad for multifariousness, it was open to the Court to strike off a particular party or parties or to call upon the plaintiffs to make their election and make the necessary amendment before it. In view of all those circumstances of the case, a remand was neither necessary nor desirable.
19. The lower appellate Court is emphatic in its pronouncement that 'there undoubtedly is multifariousness in the suit.' This finding has been vehemently assailed by the appellant before this Court but there can be no doubt as to its correctness.
20. The rules relating to joinder of defendants and of causes of action pleaded against them are rules of procedure and are not those of substantive law. Where a suit has been directed against a number of defendants and the allegations contained in the plaint disclose that the causes of action against the several defendants are not only separable but separate, it is not permissible for a Court of law to dismiss the suit. Substantial justice should in no case be allowed to be sacrificed to a wretched technicality. Even where the defect of multifariousness is patent on the face of the pleadings the plea cannot be entertained unless it was raised at the earliest possible opportunity. Safeguards have to be provided against the evil arising from multifariousness of suits which generally result in waste of time and waste of money. Unless the joinder of parties and causes of action are calculated to embarrass the trial, the Courts have a discretion to proceed with the case. The discretion of the Court is, however, fettered by certain rules of procedure, which a Court of law is not competent to ignore.
21. In dealing with the question as to whether any number of plaintiffs might join in a number of causes of action in a single writ, Lord Bowen is reported to have observed in Hannay v. Smurthwaite  2 Q.B. 422 that it was not the intention of the legislature in framing rules under the Supreme Court of Judicature Act of 1873 that a writ should be like an omnibus travelling on a certain route into which any number of persons may get in as passengers for the journey. Under the aforesaid rules, provision was made in Order 16 for the joinder of parties and in Order 18 for the joinder of causes of action. It was authoritatively laid down by the House of Lords in the aforesaid case on appeal from a decision of the Court of appeal that Order 16. Rule 1 dealt merely with the parties to an action and had no reference to the joinder of several causes of action. This pronouncement led to the amendment of Order 16, Rule 1 on 26th October 1896. As the result of the amendment, the rule which related to the joinder of plaintiff took the following form:
All parsons may be joined in one action as plaintiffs, in whom any right to relief in respect of, or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action the Court or a Judge may order separate trials, or make such other order as may be expedient and judgment may be given for one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to without any amendment. But the defendant, though unsuccessful shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief unless the Court or Judge in disposing of the costs shall otherwise direct.
22. The rule relating to the joinder of defendants was laid down in Order 16, Rule 4 which ran as follows:
All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.
23. The result of this rule was that several persons might be impleaded as defendants against whom any relief was alleged to exist, whether jointly, severally or in the alternative, and where the liability of a particular defendant was established the Court was competent to proceed to judgment against him without having any recourse to amendment.
24. Order 18, Rule 1 provided that:
Subject to the following rules of this order the plaintiff may unite on the same action, several causes of action; but if it appear to the Court or a Judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or Judge may order separate trials of any such causes of action to be had or may make such other order us may be necessary or expedient for the separate disposal thereof.
25. Rule 8 of the last mentioned order enacted that any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together may at any time apply to the Court or a Judge for an order confining the action to such of the causes of action as may be conveniently disposed of together,
26. Under the old Civil Procedure Code (Act 14 of 1882), the provisions relating to the joinder of defendants and of the causes of action were enacted in Sections 28 and 45. Section 28 provided that:
All persons may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative, in respect of the same matter, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment.
27. The words 'in respect of the same matter' were extremely vague and gave rise to a conflict of judicial pronouncement. 'The same matter' was construed by some of the Courts to be equivalent to 'the same cause of action' and by other Courts to moan 'the same act or transaction.' In other respects the rule as regards the joinder of defendants was in a line with the English rule of procedure.
28. Section 45 provided that:
Subject to the rules contained in Chap. 2 and in Section 44, the plaintiff may unite in the same suit, several causes of action against the same defendant or the same defendants jointly; and the plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit; but if it appear to the Court that any such causes of action cannot be conveniently tried or disposed of together, the Court may at any time before the first hearing, of its own motion or on the application of any defendant, or at any subsequent stage of the suit, if the parties agree, order separate trials of any such cases of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof.
29. In the present Civil Procedure Code (Act 5 of 1908) Order 1, Rule 1, relates to joinder of plaintiffs.
30. Order 1, Rule 3, which in some respects is the converse of Order 1, Rule 1, provides for the joinder of defendants and runs as follows:
All persons may be joined as defendants 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 the alternative, where if separate suits were brought against such persons any common question of law or of fact would arise.
31. This rule has evidently been moulded upon the rule relating to the joinder of defendants and causes of action which now prevail in the English Courts under the Judicature Act of 1873 and has been so expressed with a view to remove any ambiguity or conflict which arose from the corresponding sections in the Civil Procedure Code of 1882.
32. It ought to be remembered that the English rule has been judicially construed to include cases in which the cause of action is not the same Child v. Stunning  5 Ch. D. 695. But the decisions do not stop short there. It has been held in a number of important judicial pronouncements that the rule does not support an action which is founded upon entirely disconnected acts: Burstall v. Beyfus  26 Ch. D. 35 and Gower v. Couldridge  1 Q.B. 348.
33. Under the present Civil Procedure Code a number of different defendants may be charged on distinct grounds of liability founded upon separate causes of action and it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in any suit against him (Order 1, Rule 5). Judgment may be given without any amendment against such one or more of the defendants as may be found to be liable, according to their respective liabilities Order 1, Rule 4.
34. Order 2, Rule 3, Civil P.C. contains the provision regulating the joinder of several causes of action.
Save as otherwise provided a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
35. There can be no pretence for joining a number of heterogeneous persons in the same suit as defendants upon the simple ground that the plaintiff claims a common relief against them.
36. The plaintiff to avail himself of the provision of Order 1, Rule 3, Civil P.C., has to satisfy the following two conditions:
(1) The right to relief alleged to exist in him arises out of the same act or same transaction or same series of acts or transactions and
(2) The suit is of a character that if separate suits were instituted against the defendants, any common question of law or fact would arise.
37. Both these conditions must co-exist, the two conditions not being in the alternative. Our attention has been drawn to the decision of the Court of appeal in re, Payne v. The British Time Recorder Co. Ltd. and W.W. Curtis Ltd.  2 K.B. 1 in which it has been held that as a general rule where claims by or against different parties involve or may involve a common question of fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time, the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.
38. Warrington, L.J. makes the following remarks at p. 13 of the report:
Turning to Rule 1 in its now form, I find that the words inserted are of the nature of the restriction or qualification which, while they show that it is intended by the rule to deal with joinder of causes of action, at the same time puts some limitation on the joinder of causes of action which may be made under it.
39. The law on the subject has been clearly laid down by Davar, J., in Uma Bai v. Bhau Balwant  34 Bom. 358. The learned Judge observes (p. 355):
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.
40. 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. The above view is supported by the pronouncement of Vaughan Williams, J. in Stroud v. Lawson  2 Q.B. 44 in which he emphasizes upon the fact that the two conditions are not alternative conditions.
41. The claim against defendants 1 to 3 was founded upon a contract. Defendant 1, if he acted in his capacity as manager of a joint Hindu family, executed the promissory note on behalf of himself and the entire family of which he was the karta. If he borrowed the money on his own account or in his personal capacity upon his own responsibility, defendants 2 and 3 were liable for the same unless the loan was immoral. The Hindu idols which have been compendiously described in the judgments of the Courts below as defendant 4 were no party to the contract aforesaid. Defendant 4 was under no pious obligation to discharge the said debt. The liability of defendant 4 did not flow from the contract of debt entered into by defendant 1. The cause of action upon which the claim against defendant 4 was founded was distinct from that upon which liability was sought to be fastened against the other three defendants.
42. In appeal No. 183 of 1928, it was not even alleged in the plaint that the relief claimed against defendant 4 was in respect of or arose out of the same act or transaction or series of acts or transactions affecting the other defendants to the action. In the suit, which gave rise to this appeal no money decree was claimed against defendant 4 and all that was claimed was that the deed of wakf be avoided and that the plaintiff's claim be allowed to be satisfied out of the property embraced in the deed. It may be conceded that if separate suits were to be instituted against defendants 1 to 3 and against defendant 4, certain common questions of law or fact would arise but this fact by itself will not justify the joinder of all these defendants in the same action where no 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.
43. In the other two suits, a money decree has been claimed against the idols jointly with the other three defendants but this does not in any way improve the situation. All the three suits stand upon the same footing, inasmuch as the right to the relief claimed against all the defendants are not in respect of or arise out of the same act or transaction or series of acts or transactions. In the other two suits, the liability of the idols is said to arise from the fact that defendant 4 is the universal donee under Section 128, T.P. Act. Even if defendant 1 transferred his entire property to the idols, the liability flowing from the transfer is absolutely disconnected with the liability which is the offspring of the contract. In agreement with the lower appellate Court I would hold that all the three suits are bad for misjoinder of parties and causes of action.
44. It has already been indicated above that the order of remand was not called for. The learned District Judge should proceed to hear the appeal. Upon the finding that there is a defect of multifariousness in the suits the learned Judge should put the plaintiff's upon their election or strike out a particular party from the array of defendants and proceed with the trial of the appeal upon all questions of law and fact, which are raised before him.
45. I would therefore allow the appeal, set aside the order of remand and direct that the case should go back to the learned District Judge to be heard and determined according to law. Costs here and heretofore shall abide the event.
46. I concur.