1. This appeal raises practically the same questions of law and fact which arose in First Appeal No. 133 of 1956 decided by us today. The two suits had been tried together and were disposed of by a common judgment. The appeals were also heard together and as they raised common questions of law and fact, we are of opinion that for the reasons given by us in the other appeal, this appeal must also fail and be dismissed with costs.
2. The only material difference between that appeal and this is that in this case, the plaintiffs were induced to part with Rs. 3,966/- for the following classes of shares by the fraud of the defendants Nos. 1 to 11.
Numbers & Classof shares.
Rate at whichpurchased.
Total price paidincluding registration oradmission fees.
500 deferred shares of the face value of Re. 1/- each
at Rs. 3/8
200 Preference shares of the face value of Rs. 10/- each,
at Rs. 11/-
3. The claim was contested by the same set of defendants and the appeal is also by the same defendant No. 1 appellant.
4. The claim was, decreed for Rs. 4,701/-with corresponding costs. In our opinion, it was rightly so decreed and this appeal must fail.
5. One more contention was raised in this appeal which contention was raised and negatived in the suit also. The contention was that the suit had abated by reason of the failure of the plaintiff-respondents to bring on record the legal representatives of the deceased-defendant No. 2 who died during the course of the trial. It has been held on the authority of Devendrakumar v. Nirmala-bai, ILR (1945) Nag 349: (AIR 1944 Nag 292) that an agreement not to sue one of the tort-feasors is not a bar to an action against the others.
It is only when there is a release of one out of several joint tort-feasors that the release operates as a discharge of others. But even in such a case of express release, there can be a reservation of the right to proceed against the others, which is interpreted as equivalent to an agreement not to sue. On the same principle it has been held that where the claim is barred by limitation as against one it will not in itself free the others from liability. The question in every case is a question of intention and as stated in Duck v. Maveu, 1892-2 QB 511, 'in determining whether the document be a release or a covenant not to sue, the intention of the parties was to be carried out. and if it were clear that the right against a joint debtor was intended to be preserved, inasmuch as such right would not be preserved if the document were held to be a release, the proper construction, where this was sought to be done was-that it was a covenant not to sue, and not a release.'
Here there was no document and we are required to gather the intention of the plaintiffs from their conduct in not bringing the legal representatives of the deceased defendant on record and in praying that his name be struck off. There was no acceptance of any sum of money in full or partial discharge of the defendants' liability as joint tort-feasors and if the plaintiffs choose not to proceed against the legal representatives of the deceased defendant, the other defendants cannot insist on having them joined as defendants. The case would be more akin to omission to sue rather than as a case of release.
6. The appeal fails and is dismissed with costs.