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Mohamed Ali Sultan Vs. Hajee Abdul Khaelvi Rowther and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.565
AppellantMohamed Ali Sultan
RespondentHajee Abdul Khaelvi Rowther and ors.
Cases ReferredAiyathurai Rowther v. Santhu Meera Rawthan
Excerpt:
civil procedure code (act xiv of 1882), section 28 - joinder of parties and causes of action. - - the plaint asks that all the defendants should be made to render accounts of the management by mahomed lebbai and the first defendant from 1884 to 1902. the lower court holds that the suit is bad for misjoinder, as the claims for the two periods of management viz. section 28 of the civil procedure code, 1882, clearly justified the joinder of several defendants and causes of action although all of them might not be interested in all the causes of action which are made the basis of a suit provided they all relate to the same matter. but in this it is clearly mistaken......framed but the main allegations are that plaintiff's father mustan rowther appointed one mahomed lebbai rowther who was the father of the 2nd and 4th defendants, husband of the 3rd defendant and brother of the first defendant, as trustee of his properties with directions inter alia to marry them during the plaintiff's minority and to hand them over to the plaintiff on his attaining the age of majority, that though mahomed lebbai alone was appointed trustee the first defendant, his brother, was also managing the properties and that the first defendant is also, therefore, accountable as trustee for the management during mahomed lebbai's trusteeship; that before his death in april 1893 mahomed appointed the first defendant as the plaintiff's guardian for his property; that the.....
Judgment:

1. The Subordinate Judge dismissed the suit on the ground of misjoinder of parties and causes of action. We are unable to agree with him in his conclusion. The plaint is not very artistically framed but the main allegations are that plaintiff's father Mustan Rowther appointed one Mahomed Lebbai Rowther who was the father of the 2nd and 4th defendants, husband of the 3rd defendant and brother of the first defendant, as trustee of his properties with directions inter alia to marry them during the plaintiff's minority and to hand them over to the plaintiff on his attaining the age of majority, that though Mahomed Lebbai alone was appointed trustee the first defendant, his brother, was also managing the properties and that the first defendant is also, therefore, accountable as trustee for the management during Mahomed Lebbai's trusteeship; that before his death in April 1893 Mahomed appointed the first defendant as the plaintiff's guardian for his property; that the first defendant was also appointed as the plaintiff's guardian by the District Court of Tanjore and managed the estate till the plaintiff after he had become a major in 1902 obtained possession of the greater portion of the property through Court; that on examining the accounts of the management the plaintiff discovered that they were false and incorrect. The plaintiff further alleges that when Mahomed applied for and was granted a succession certificate to collect the debts due to Mustan Rowther a security-bond, Exhibit C, was executed by the father of Mahomed Lebbai and the first defendant making certain properties belonging to himself and his sons liable for the due collection of the debts and the payment over of them to the proper person. It is also alleged that when the first defendant was appointed guardian by the Court another security-bond was executed by the first and second defendants making certain other properties liable for the proper administration of the plaintiff's estate by the first defendant as guardian. Defendants Nos. 2 to 4 are made parties as they are the heirs of Mahomed Lebbai and of Ismaji Thambi Rowther who executed Exhibit C. The plaint asks that all the defendants should be made to render accounts of the management by Mahomed Lebbai and the first defendant from 1884 to 1902. The lower Court holds that the suit is bad for misjoinder, as the claims for the two periods of management viz., from 1884 to 1893 and from 1893 to 1902 are distinct as defendants Nos. 2 to 4 are sought to be made liable under Exhibit C for the claim for the first period and the first and second defendants for the second period under Exhibit D the first defendant being held to be also personally liable. The lower Court holds that the first defendant, if he took part in the management, during the first period could be held only to have helped Mahomed Lebbai and would not be liable to account. But this is not the allegation in the plaint which must be accepted for deciding the question of misjoinder. The claim against the first defendant extends to the whole period from 1884 to 1902. The defendants Nos. 2 to 4 would be proper parties as heirs of Mahomed Lebbai to determine the liability of his estate for the first period. The 2nd defendant was a party to Exhibit D which relates to the second period; defendants Nos. 3 and 4 might also be properly joined with reference to the claim for the second period to determine how far the properties of Mahomed Lebbai which have been inherited jointly by defendants Nos. 2 to 4 could be made liable for the plaintiff's claim as against the second defendant. Section 28 of the Civil Procedure Code, 1882, clearly justified the joinder of several defendants and causes of action although all of them might not be interested in all the causes of action which are made the basis of a suit provided they all relate to the same matter. The lower Court seems to have been under the impression that Section 28 could not be invoked by the plaintiff to justify the frame of the suit. But in this it is clearly mistaken. The decision in Muthappa Chetty v. Muthu Palani 27 MP. 80 which is chiefly relied on by the Subordinate Judge, has been explained in several later cases. See Meyappa Chetty v. Periannan Chetty 29 MK. 50 : 16 M.L.J. 39; Aiyathurai Rowther v. Santhu Meera Rawthan 31 MK. 252 : 18 M.L.J. 238. That decision must now be regarded as resting on the particular facts of the case. It is admitted that there is no cause of action against the fifth defendant. We reverse the decision of the lower Court and remand the suit for trial de novo on the merits. Costs will abide the result.


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