1. Petitioner is respondent 1 in a petition by the two plaintiffs for permission to sue in forma, pauperis. The petition was resist-ed on the ground that the contemplated suit was bad for misjoinder of parties and causes of action. The learned Additional Subordinate Judge after finding that the would-be plaintiffs were paupers took the view that the suit was not bad for misjoinder and directed the plaint to be registered as a suit. No appearance hag been made by the respondents here despite personal service.
2. The respondents are, the father, the would, be plaintiff 1 and his natural son, the would be plaintiff 2. They sued to recover the self acquired property of one Marimuthu Pandithar, who died in 1933, on the basis that he had adopted respondent 2 in 1925. Respondent 1 asks in the contemplated suits in the event of his natural son's adoption being negatived for recovery of possession on the ground that he is the nearest reversioner of a son Alanganathan, who was born to Marimuthu Pandithar by a : third wife whom he married subsequent to his adoption of defendant 2. The two defendants in the contemplated suit are Marimuthu Pandithar's wife's brother and alienee of a portion of the suit property from him. The former claims under a settlement deed of the year 1947 executed in his favour by Alanganathan who died subsequently.
3. As it appears to me, the contemplated suit seeks to mingle two entirely different causes of action, (1) the adoption of the second petitioner in which the first petitioner has in law no interest, and (a) the reversionership claim of the first petitioner based on the setting aside of the alleged settlement deed by Alanganathan in 1947 which would be the main issue for determination in the event of the adoption not being established. The learned Subordinate Judge followed the decision in Velappa Nadar v. China Pena Chidambaram Nadar, : AIR1922Mad174 and a Bombay decision Fakirappa v. Rudrappa, 16 Bom. 119. In the Madras decision by Venkatasubba Rao J. four plaintiffs joined in a suit with a clear community of interest namely to recover moneys and jewels in the possession of defendant 1. Though it transpired that there were disputes as between the plaintiffs inter se as regards their respective rights in the suit property, they did not seek for a resolution of those rights in the suit and as members of a family sought to recover possession from defendant 1 who is alleged to have unlawfully retained the property. The common question of fact there was the defendant's wrongful withholding of the moneys in dispute. That case is not on alt fours with the present case. In the Bombay Bench decision no objection was taken in the trial Court on the ground of misjoinder, which the lower appellate Court allowed to be successfully taken for the first time and remanded the suit for an amendment of the plaint. The learned Bench reversed the remand order primarily on the ground that objection for misjoinder was not taken in the trial Court as required by Section 99, Civil P. C. It was also held in that case in which the plaintiffs were a widow and an alleged adopted son who filed a claim in execution of some property in attachment, that as the widow admitted the adoption of the other plaintiff the claims were in no way antagonistic and they Were both jointly interested in disproving defendant's title. There is no such community of interest as between the plaintiffs so far as their causes of action are concerned which are quite distinct, antagonistic and separate, although on broad grounds the father and his natural son may be said to be seeking what alternative remedies they can on two different legal basis.
4. Order 33, Civil P. C., does not specifically provide any procedure when the contemplated plaint discloses misjoinder of parties and causes of action. The learned advocate urges that this ground is partly covered by Order 33, Rule. 5 (d-1) which requires a pauper application to be rejected where the suit appears to be barred by any law. In cases of misjoinder however the suit in toto cannot be said to be barred by any law and a plaintiff or plaintiffs who are found guilty of misjoinder have the right to elect which cause of action they can pursue in the suit they seek to file. Strictly the objection as regards misjoinder should have been taken after the suit was registered. The learned Subordinate Judge has however given a finding on this point at the time he directed the registration of the application as a suit and until set aside it is binding on the parties. I have no hesitation in finding that the two causes of action blended in the present plaint, although alternative, are clearly distinct, separate and antagonistic and that the son cannot seek relief on the basis of adoption with his natural father seeking a separate relief in the same suit on the basis of no adoption. The only course, as the learned advocate for the petitioner concedes is for an opportunity to be given to plaintiffs to elect which cause of action to prosecute in the suit. This means that one of the two plaintiffs must drop out. Either the son can prosecute this suit on the basis of his alleged adoption or the natural father on the basis of no adoption. The petition is allowed with these directions with costs against respondents.