1. It is a tribute to the learned Counsel who have appeared before me that my mind has fluctuated a good deal during the course of their arguments. Rightly or wrongly my mind is now stabilized. There are before me two applications. Both applications are made in a suit for partition entitled C.S. No. 762 of 1926 relating to a joint family known as the P.M.A. firm. In that suit a preliminary decree was passed on 22nd November, 1928. By that preliminary decree it was ordered and decreed that the suit be and thereby was referred to a commission to take the following accounts: '(a) An account of the property, credit and effects of the said joint family (inclusive of the assets, profits, and liabilities of the said P.M.A. firm belonging to the said joint family) as on the institution of the suit; (b) an account of the debts and liabilities of the said family outstanding, and (c) an account of all moneys of the joint family which have come into the hands of both or either of defendants Nos. 1 and 3 herein not on the ground of wilful default, but in the ordinary course of management of the said family.' and to make an enquiry whether the compromise set up by defendants Nos. 11 to 13 herein is true, valid and binding on the plaintiff or any members of the family herein.
2. The joint family referred to therein as the P.M. A, firm is I am told, one of the leading families of the class to which they belong. I am told that they took an active part in relation to the conduct of a Saivite temple at Elamayankottur. It is alleged that they were in possession of funds amounting to Rs. 1,38,000. It is alleged that that fund was a trust fund. It is alleged that the family itself regarded that money as the money of the deity. Those being the allegations an application taken out on 17th September, 1929, was made to me asking for the following relies: '(a) Why the amount standing in the ac-counts of the P.M.A. firm Madras, to the credit of Sri Elamayankottur Deivanayaga-swami should not be declared to be a trust fund payable by Receivers of the estate Messrs. Frasor and Ross, in full. (b) Why the said Receivers should not be directed to retain out of the realisation made by them a sum sufficient to pay in full the said amount, (c) Why costs of the application should not come out of the estate, (d) Why such further or other order should not be passed as may be necessary in the interests of justice and in the circumstances of the case.'
3. That application was made in this partition suit by two persons who were described as worshippers at the temple in question. When that application came before me I expressed some surprise that persons, strangers to the suit, should try to come in and make an application of this sort. I was told by Mr T.M. Krishnaswami Iyer who appeared on behalf of the applicant that he rested his application on Order XXXI, Rule 5, Original Side Rules of this High Court. Rule 5 provides as follows: 'If it appears to the Court that there are outstanding debts or liabilities of the family, and that the same cannot then be ascertained, the Court may direct an account to be taken thereof, and may, in its discretion, direct notice to be given to all persons having claims against the family, or its property by advertisement in the newspapers or otherwise, to bring their claims into Cout before a fixed day.'
4. Order XXXI is dealing solely with partition suits. It was conceded before me that the right of the applicants to come under that rule depended upon whether or not the Court had directed notice to be given to all persons having claims against the family and whether in fact such notice had been given. I am told by Mr. Doraiswami Iyer who appeared on behalf of the respondents that the Court did not direct notice to be given to all persons having claims against the family and that in truth no such notice had been given. That being so it appears to me that the applicant cannot avail himself of that rule. I doubt very much whether the rule in any case would entitle strangers to come in and make substantive applications in such a suit as this. However it is unneces-sary for me to decide that. It is sufficient for me to say that the rule itself not having been complied with the application fails and is dismissed. The respondents will have their costs of this application in any event, such costs to be taxed.
5. I now turn to the second application. Mr. Krishnaswami Iyer, feeling that he was in some difficulty and knowing the doubts I entertained with regard to his first application asked for leave to take out an application to make the applicants parties to the suit. That he did in the second application. The original applicants were the applicants in this also and a third applicant was added who I am told, is the manager of the temple. These three persons on the second application sought the following reliefs: '(a) Why the applicants herein should not be added as party defendants in C.S. No. 762 of 1926, and (b) Why such further or other orders should not be made as may be necessary in the circumstances of the case and in the interests of justice.'
6. Upon what does the second application depend? It depends, as is admitted, upon O. I, Rule 10 (2), Civil Procedure Code. That rule provides as follows: 'The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joind, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'
7. Now the first matter I have to put to myself is this: what are the questions involved in this suit? I look at the decree and I see that a Commissioner has been appointed: (a) to take an account of the property, credit and effects of the said joint family, (b) an account of the debts and liabilities of the said family outstanding.
8. There can be no question at all that if in truth this is a trust fund and I do not propose to decide that one way or the other here then this family is liable to account for it. If it had held these moneys in trust for various persons connected with this temple then that must be regarded as one of the liabilities of the family.
9. It has been argued by Mr. Doraiswami Iyer on behalf of the respondents that the substantial question involved in this suit must relate to questions upon which the parties themselves are at issue. It is obvi-ous that the members of this family are not at issue upon this question. It is not part of their case that this money is trust money. In fact it is their case and I have no doubt that they do say that this money belongs to their family. So says Mr. Doraiswami Iyer, this is not a question involved in this suit. Let us see; is it not, involved in this suit? Supposing the Commissioner finds this family is in possession of an amount in excess of Rs. 1,38,000. He is directed to ascertain what are the debts and liabilities of the family. Unless these persons (applicants) are before the Court it is admitted that in no sense would the Commissioner take cognizance of the allegations made in respect of this alleged trust fund. He would know nothing about it; he would regard all the moneys in the hands of the Receiver as being moneys of the family. He would regard those moneys as being available and completely available for distribution among the creditors. It may very well be that there is no issue between the parties. But this a question entirely for them? Order I, Rule 10 (2), says that the' Court may at any stage of the proceedings order that the name of any party improperly joined, whether as plaintiff or defendant be struck out and that the name of any person who ought to have been joined, whether as plaintiff or as defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.
10. Why is the Court empowered to do that? It is empowered to do that in order to enable the Court 'effectually and completely to adjudicate upon and settle all the questions in the suit.' How can the Court completely adjudicate upon and settle all the questions involved in this suit if it shuts its eyes to the persons who are making this application? Can the Court entirely disregard the allegation that Rs. 1,38,000 out of the moneys in the hands of the Receiver is trust money? Can the Court completely decide what are the debts and liabilities of the family if it wholly ignores this question of the alleged trust fund? It is said, rather it is contended before me, that if in fact it is held to be trust money there may be nothing for the creditors. That may very well be, but if this is trust money and there are no other available assets then plainly the creditors are entitled to nothing. That is not an argument to sway my mind upon an issue such as this. I simply ask myself this question: Here are the rules framed giving the widest possible discretion to the Court. I have to ask myself can the Court completely settle all the questions involved in this suit without adding these persons as parties? In my opinion it cannot.
11. Now a number of authorities have been cited before me and I propose to refer to only a few. The question which I am now considering was considered by this Court in Vydiananda v. Sitaram 5 M. 52 by Sir Charles Turner, C.J., and Muthuswami Iyer, J. In construing the words which I am called on to construe, the Court in that case said: 'Is it meant by these words that a person not originally impleaded is to be made a party only if the questions raised in the suit cannot otherwise be completely and effectually determined between the parties to the suit? Or is it meant completely and effectually determined so that they shall not be again raised in that or in any other suit between the parties to the suit or any of them and third parties? To accept the more restricted intrepretation involves the addition of words which we do not find in the section, namely 'between the parties to the suit' and there can be a few, if any questions, which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will as between the parties to the suit not be final. On the other hand, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them.'
12. To the same effect is a judgment of Ramesam, J., in In the matter of Baluswami Iyer : AIR1928Mad735 . There referring to a partition suit such as this (that case being a case of insolvency) the learned Judge in the course of his judgment said that the Official Assignee can apply for all the creditors to be made parties so that the findings as to the nature of the debts may bind all.
13. To the same effect is a judgment of Venka-tasubba Rao, J., in Secretary of State v. M. Murugesa Mudaliar : AIR1929Mad443 . There dealing with the rule the learned Judge says: 'The first part deals with necessary parties and the second with proper parties. True, a decision is binding only on the parties to the suit; but does it follow that a Court is bound to decide a dispute in the absence of those persons whom it most vitally concerned'
14. The learned Judge in the course of his judgment referred to a numer of authorities and among them is a case reported as Esqui-malt and Naimo Ry. Co. v. Wilson (1920) A.C. 358 : 89 L.J.P.C. 27 : 122 L.T. 563 : 6 T.L.R. 49. That is a decision of the Privy Council. The head-note says this: 'When an action if successful will affect rights claimed by the Crown but the plaintiff has against the Crown no claim to which the procedure by petition of rights is applicable the Attorney-General is a necessary and proper party and may be joined as a defendant by the plaintiff.'
15. In the course of the judgment Lord Buck-master says at p. 363 Page of (1920) A.C.--[Ed.] with regard to the contention that there is no need to make the Attorney-General a party: 'With regard to the first of these contentions their Lordships are clearly of opinion that the Attorney-General ought to be before the Court. It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Grown asked to do any act or grant any estate or privilege, but in the event of the plaintiff's success the rights existing in the Crown and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as defendant and that is the best means of testing the necessity of the attendance of the Crown.'
16. Mr. Doraiswami Iyer sought to distinguish that case from this upon the footing that there some interest of the Crown was affected. Personally I fail to see the distinction between that case and this. In the case now before me it is not true to say that this Court has appointed a Commissioner to ascertain what are the debts and liabilities of this family. Is it not true to say that the interests of tbe present applicants who are saying that a large portion of the available assets represent trust money are vitally concerned?
17. Mr. Doraiswami Iyer drew my attention to a number of cases which he says point the other way. He directed my attention this morning to a case reported as Narain Kuar v. Piary Lal 2 A. 738. The head-note says this: 'Where an application is made under Section 32 (that corresponds to O. I, Rule 10(2) of the present Civil Procedure Code) for the addition of a person whether as plaintiff or defendant, such persons should, as a general rule, be added only where there are questions directly arising out of and incidental to the original cause of action in which such person has an identity or community of interest with the original plaintiff or defendant.'
18. I look at the judgment of Straight, J, at page 741 Page of 2 A.--[Ed.]. There I read this : 'No doubt, it is most desirable when litigation has been instituted in respect of a particular subject-matter or specific contract, that the Court having cognizance of it should see that all questions directly springing out of it should be raised and dealt with once and for all and that all persons naturally concerned in and likely to be legally affected by the determination of those questions should be joined as parties.'
19. I do not want to deal with the particular facts of that case but I see nothing generally in the judgment of Straight, J., which is inconsistent with the view I am now taking. I pause here and ask myself the question as to what is the alternative suggested. The alternative suggested here is that the present applicants should bring an independent suit. There is much to be said in favour of that suggestion and prima facie I should say that that is the right course. But supposing that they do in fact bring an independent suit, what would be the position? Two suits would be proceeding in this Court and in both of them this question would be involved as to what are the liabilities of this family. In suit No. 1, a decision would be reached without any reference whatever to the question of whether this money is trust money or not. In suit No. 2, a decision would be reached only solely with reference to this question. Is it not obvious that the effect of these two decisions would be that in all probability if the present applicants are right in their contention, they may be wrong, but if they are right there would be two conflicting decisions.
20. Mr. Doraiswami Iyer referred me also to certain English cases and among them is one reported in Montgomery v. Foy, Morgan and Co. (1895) 2 Q.B. 321 : 65 L.J.Q.B. 18 : 8 Asp. M.C. 36 : 43 W.R. 691 : 73 L.T. 12 : 14 Rule 575. There a shipowner brought an action against certain consignees and an application was made that the shippers of the cargo should be added as defendants in the action in order that they might counter-claim against tbe plaintiff damages for short delivery and injury to cargo. The matter went up to the Court of Appeal and there Lord Esher said this : 'Here the matter before the Court is the contract of affrightment and there are disputes arising out of that matter as between the plaintiff and the defendants and the Company whom it is sought to add as defendants and who are defendants' principals in the matter. I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Acts, namely, that where there is one subject matter out of which several disputes arise, all parties may be brought before the Court and all these disputes may be determined at the same time without the delay and expense of several actions and trials.'
21. In these circumstances although there is much to be said both 'ways, the conclusion to which I have come is that this application falls within O. I, Rule 10 (2), Civil Procedure Code, by which the Court may at any stage of the proceedings add a party to the suit and I see no difficulty about that at all. I am told that the Commissioner will not report for about twelve months. Whether that be so or not I am satisfied that he ought not to report in this Court as to what are the debts and liabilities of this family without regard to the contentions put forward by the present applicants. I think their presence before the Court is necessary to enable the Court effectively and completely to adjudicate and settle all the questions involved in this suit.
22. In these circumstances I direct that these three applicants be added as party defendants in C.S. No. 762 of 1926 and that all proceedings therein be amended accordingly. I do not propose to put the applicants on any terms in making this order and they will have their costs of this application in any event, such costs to be taxed. I direct that there be liberty to both sides to apply. I direct that the Receivers do retain in their hands the sum of Rs. 1,38,000 until further order.