1. This appeal arises out of a suit for recovery of possession of the properties in dispute on a declaration of the plaintiff's right thereto, and for other reliefs. The plaintiff's ease shortly stated is that there were certain debutter properties of the Nattore Raj family deities, that Raja Shibnath belonging to the younger branch (chota taraf) of the family inherited the same as shebait, and after his death his widow adopted Raja Ananda Nath, who accordingly obtained the said debutter properties by inheritance as shebait together with certain other properties acquired with the income of the debutter properties. Ananda Nath left four sons, Raja Chander Nath, Kumud Nath, Nagendra Nath and Jogendra Nath, who remained in possession of the properties in shebaiti right. The first three sons died leaving their widows but without any issue, and it is alleged that Jogendra Nath committed oppression upon his brothers' widows who were helpless and obtained from them an ekrar by which the bulk of the properties was given up to him. The defendant No, 8, the widow of Nagendra Nath, under the authority given by her husband adopted the plaintiff on the 23rd Aghyan 1316, Hand the plaintiff thereupon as the heir of Nagendra Nath became entitled to 1/4th share of the estate as shebait, and to joint possession accordingly. The defendant No. 1 is the grandson and heir of Jogendra Nath and the plaintiff alleged that the defendants Nos. 2 to 6 on behalf of the defendant No. 1 and jointly with him are in possession of the estate and prevented the plaintiff from taking possession of the properties. The plaintiff further states that so far as he has 'come to know on enquiry Raja Shibnath and his descendants had a shebaiti right only in the properties, but that if the properties were found not to be debutter, then the plaintiff's title to 1/4th share by right of inheritance might be declared and a decree for joint possession in respect of the same might be passed. The plaintiff also claimed mesne profits and costs and further reliefs.
2. The defence denied that there was any authority given by Nagendra Nath to the defendant No. 8 to adopt or that the plaintiff was adopted by her, and it was alleged that the properties were not wholly debutter but were personal properties, some of which were charged with the sheba and worship of family deities, and that Jogendra Nath and his executors having been in adverse possession thereof for over twelve years the defendant No. 1 had acquired an indefeasible title thereto. Various other pleas were raised. The main pleas, so far as they are material for the purposes of the present appeal, were that the defendants Nos. 2 to 6 were in possession of the Estate as executors under the Will of Jogendra Nath, and could not be sued in their personal capacity, and that the plaintiff could not maintain the suit as a shebait and in his own right as owner.
3. Various issues were raised in the case, the first and third issues being as follows:---(1) Is defendant No. 1 and are defendants Nos. 2 to 6, as described in the plaint, in possession of the properties in dispute as alleged? Has the plaintiff any cause of action against them?
4. (2) Is the suit bad for misjoinder of causes of action? Are the executors to the Will of Kumar Jogendra Nath Roy necessary parties to the suit? If so, is the suit bad for non-joinder of parties.
5. The suit was dismissed by the Court below on a decision of the first and third issues only without trying the suit on the merits. The plaintiff has appealed to this Court.
6. The first question for consideration, therefore, is whether the suit can be maintained against the defendants Nos. 2 to 6, unless they are sued as executors. That they are executors under the Will of Jogendra Nath is not disputed, and it is found by the Court below that the defendants Nos. 2 to 5 are in possession of the share claimed as executors. Now Jogendra Nath in his lifetime obtained possession of the share claimed and held it until his death, and under his Will it vested on his death in his executors (Section 4 of the Probate Act) and any right of suit against Jogendra Nath survived against the executors (Section 89 of the Probate Act). It is contended, however, on behalf of the appellant that although they might have held the share as part of Jogendra Nath's estate as executors prior to the adoption of the plaintiff, they could not after the said adoption hold it as part of that estate, because on the adoption of the plaintiff, the arrangement under which Jogendra Nath and, after his death, his executors held possession of Nagendra Nath's share came to an end, and, therefore, it ceased to be part of Jogendra Nath's estate, and the executors as such could not hold the share as part of that estate.
7. It is further contended that the plaintiff claims the share as the adopted son of Jogendra Nath, and he has sued the defendants Nos. 2 to 5 as the persons who are in possession of it and who prevented him from taking possession to which he was legally entitled. If the plaintiff does not succeed in establishing his title, the suit will fail on the merits, and on the other hand if he has a title to the share it does not form part of Jogendra Nath's estate, in which case the defendants Nos. 2 to 6 are not holding it as executors but only as trespassers, and that, therefore, in either case, it is not necessary to sue them as executors.
8. But in the first plane, if, as contended on behalf of the appellant, only the persons in possession should be sued, the defendant No. 1 should be dismissed from the suit. It is true the plaintiff says that the 'defendants' (which would include the defendant No. 1 also) prevented him from taking possession, but the defendant No. 1 at the date of the suit was a minor, and it is found by the Court below that he is not in possession, the possession being still with the executors. In the next place, the defendants Nos. 2 to 5 assert that the share claimed by the plaintiff is part of Jogendra Nath's estate, they profess to hold it as part of that estate, and they did not at any time assert any right of their own. Whether the share claimed by the plaintiff could be rightfully withheld from him by the executors as being part of Jogendra Nath's estate after the alleged adoption of the plaintiff is a matter to be decided in the suit, but it is as executors of Jogendra Nath's estate that they prevented him from taking possession. If they are trespassers, they acted as trespassers on behalf of the estate as executors, and the question' whether or not the share is part of that estate should be determined in the presence of the executors who represent the estate, The appellant seems to be apprehensive that by suing the defendants Nos. 2 to 5 as executors he would be taken to have admitted that the properties are part of Jogendra Nath's estate, but as contended on behalf of the respondents no such inference can possibly arise from suing the defendants as executors.
9. Order I, Rule 9, lays down that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The suit could not, therefore, be dismissed on the ground that the defendants No. 2 to 6 were not sued as executors. The suit could have proceeded against them as trespassers, but any decree passed in the case would not have bound the estate of Jogendra Nath. Every suit should as far as practicable, be so framed as to prevent further litigation concerning the subject in dispute. We are of opinion that although the suit should not have been dismissed on the ground that the defendants Nos. 2 to 6 were not sued as executors they are proper parties to the suit, and the plaintiff ought to have been called upon to amend the plaint for the purpose.
10. It is pointed out on behalf of the appellant that under the Will of Jogendra Nath the powers of the executors to manage the estate are limited to the minority of the defendant No. 1. It is also pointed out that there were six executors under the Will, one of them did not accept the office of executor, and another has died since the institution of the suit and according to the Will the minimum number of executors at any time must be six, and, therefore, a less number of executors cannot properly represent the estate. It is further contended that if the properties are dabutter, the shebaiti right cannot be legally dealt with by a Will. These questions have not been gone into, and we do not express any opinion on these points. If, however, it be held that the defendants Nos. 2 and 4 to 6 do not represent the estate, the suit cannot proceed against them as executors, and so far as Jogendra Nath's estate is concerned the defendant No. 1 as heir would represent the estate. Order I, Rule 7, lays down that where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.
11. We think that under these circumstances, and in order to effectually and completely adjudicate all the questions involved in the case, the defendants Nos. 2 and 4 to 6 should be sued personally as well as executors, and the defendant No. 1 sued as the residuary legatee and heir of logendra Nath.
12. It is contended on behalf of the respondents that a claim against the executor cannot be joined with a claim against him personally, and we are referred to the provisions of Order II, Rule 5. That Rule prohibits such a joinder, unless the claim against the executor personally is alleged to arise with reference to the estate in respect of which the defendant is sued as executor.
13. In the present case, the executors might have fairly believed that the share claimed by the plaintiff forms part or Jogendra Nath's estate, and might have prevented him from taking possession thereof in their character as executors as they profess to have done, although the Court may eventually decide that the plaintiff had title to the share, and that, therefore, the executors had no right to prevent him from taking possession. It is said that the' word estate means the estate rightly and properly held as executors, and not the estate in its physical sense. We are of opinion, however, that the word is used in both senses, and the joinder is permissible when both the claims arise in reference to the estate. Here the defendants Nos. 2 and 4 to 6 claimed to be in possession of the property as part of Jogendra, Nath's estate at the date of the plaintiff's adoption and prevented the plaintiff from taking possession professedly in their character as executors. The plaintiff has claimed mesne profits and costs, and if the plaintiff succeeds, the Court will have to decide whether the defendants Nos. 2 to 6 are liable (if at all) personally or as executors. We think in the circumstances the case comes within the exception mentioned in Order II, Rule 5.
14. The next question is whether the claims as shebait and as owner can be joined in the same suit. It is not disputed that claims in the alternative can be joined in the same suit. It is contended, however, on behalf of the respondent that such joinder is permissible only where the alternative claims are put forward in the same character although they may be inconsistent, and that if the plaintiff claims to fill two inconsistent characters he will have to elect at the hearing which claim he will rely on. We are referred to the cases of Rowlings v. Lambert (1860) 1 J. & H. 458 at p. 466 : 70 E. R. 826 : 128 R. R. 468 and Thomas v. Hobler (12). But these oases were decided before the Judicature Act was amended. The English Rule (Order XVI, Rule 1) was altered in 1896, and the first part of that Rule corresponds to Order I, Rule 1, of our Code which runs as follows:
'All persons may be joined in one suit as plaintiffs in 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 such persons brought separate suite, any common question of fact or law would arise,' and alternative claims since the amendment of the Rule have always been allowed to be joined in the same suit, provided they have arisen out of the same transaction.
15. We were also referred to the case of Stroud v. Lawson (1898) 2 Q. B. 44 : 67 L. J. Q. B. 718 : 78 L. T. 729 : 46 W. R. 626 : 14 T. L. R. 431. In that case the plaintiff in his statement of claim, on his own behalf, claimed damages from the defendants, who were Directors of a Company, for inducing him by fraud to purchase shares in the Company and ho also claimed in the same action on behalf of himself and all the other share-holders of the Company a declaration that the payment of dividend (on the shares of the Company when there were no profits) was ultra vires and illegal, and it was held that the plaintiff was not entitled under Order XVI, Rule 1, to join both the causes of action in one suit. Bat as was pointed out by A. L. Smith, L. J., the first claim was a Common Law action of deceit personal to the plaintiff and in the second part of the statement of claim, the plaintiff sued the same defendants and the Company limited, not in his personal capacity, but in a wholly different capacity, and that they were wholly separate and distinct causes of action which did not arise out of the same transaction or series of transactions. 'According to the terms of the Rule the plaintiff in this case cannot join the two causes of action which he is putting forward in different capacities, unless he can show that they both arise out of the same transaction.'
16. Now, do the alternative claims in suit ariseout of different transactions? Looking at the substance of the plaint, the plaintiff's case appears to be that as the adopted son of Nagendra Nath, he is entitled to the same interest in the properties as Nagendra Nath had. He alleged that Nagendra held the properties as shebait but that if the Court finds that they are not debutter, and were held by Nagendra Nath as his personal properties, the plaintiff would still be entitled to his share. If the plaintiff succeeds in establishing that he is the adopted son of Nagendra Nath, that the arrangement entered into by the defendant No. 8 terminated on his adoption, and there is no other bar to his right, he would be entitled to succeed whether the properties were held by Nagendra Nath as shebait or in his own right. It is to be observed that although the defendants pleaded that the properties were not absolutely debutter, they stated that some of the. properties were charged with the expanses of sheba of the family deities. If there is no deed of dedication, and specially in cases where the debutter is claimed to be the debutter of family deities from ancient times, the determination of the question whether the properties are absolutely debutter or personal properties merely charged with the expanses of the sheba, depends upon the conclusion to be drawn from the facts which may be proved.
17. The principle as to alternative relief is thus stated by Sir W. Page Wood, V. C., in Rowlings v. Lambert (1860) 1 J. & H. 458 at p. 466 : 70 E. R. 826 : 128 R. R. 468 referred to above: 'You have no right to allege two inconsistent states of facts and ask relief in the alternative, for the two cannot be true; but you have always a right to state the facts of the case, the documents and deeds, and ask the conclusion of the Court on those facts and documents, and say the Court may come to one conclusion of law or it may come to another; and you may ask the Court to come to a conclusion on the facts which you have disclosed, having stated everything that will enable the Court to form a proper judgment. You may ask the judgment of the Court on the two alternatives. That may be done on any bill without objection.' See also Evans v. Dans (1879 : 10 Ch. D. 747 : 48 L. J. Ch. 223 : 39 L. T. 391 : 27 W. R. 285 where (at page 754). Fry, J., observed, 'a plaintiff may draw two inconsistent inferences from the same state of facts.'
18. It is contended on behalf of the respondents that the plaintiff's duty as trustee is in conflict with his interest as owner, but the second alternative would arise out of the same facts and would have to be considered only if the first alternative fails and in fact would follow from it. If the respondents' contentions were allowed the plaintiff must first sue as shebait and then when he fails, he will have to bring a fresh suit in his right as owner, though upon the same state of facts and transactions. But every suit should be so framed as to prevent farther litigation concerning the subject in dispute, and Order I, Rule 2, provides that where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may order separate trials.
19. In the case of Radha Mohun Mundul v. Jadoomonee Dosee 23 W. R. 369 : 3 Sar. P. C. J. 482 the plaintiff sued to recover certain properties as heiress of her husband as if they were personal properties; it was found that they were debutter properties, and the Court of first instance held that she could not succeed as she had not sued as shebait. The High Court treated the objection as one of form and gave her relief; the Judicial Committee were of opinion that the High Court were right in treating the objection which had been made to the reception of the claim by the Subordinate Judge as an objection rather of form than of substance.
20. In the present case the plaintiff in effect asks for a declaration that he as the adopted son of Nagendra Nath has in the properties in suit the same interest, shebait or otherwise, which Nagendra Nath had, and he asks for possession accordingly. That being so, the plaint is not open to any serious objection on this point.
21. The last question is the question of costs. No doubt the general Rule is that the party applying for amendment must pay costs up to the stage when amendment is applied for, But the Court below does not appear to have allowed the plaintiff any opportunity to apply for amendment.
22. The suit should not have been dismissed for misjoinder or non-joinder of parties, and under the circumstances we think that the plaintiff should be directed to pay the costs up to the stage when the preliminary issues (Nos. 1 and 3) were decided, because that was the stage when the Court ought to have given the plaintiff an opportunity to apply for amendment. We assess the costs up to that stage at Rs. 1,500.
23. A question has been raised on behalf of the respondents whether the order for costs should be made against the plaintiff or against his next friend. It is unnecessary to consider the question, as the learned Counsel for the appellant does not object to the decree for costs being passed against the next friend, if only the costs up to the stage when the first and third issues were decided, are ordered to be paid. We accordingly direct that the next friend of the plaintiff do pay to the defendants Rs. 1,500 as costs within two months from this date, the money to be paid to Babu Priya Sankar Moznmdar, Vakil, for defendants Nos. 1, 2, 4 and 5, and on payment of which the plaintiff will be allowed to apply far amendment within one month from the date of such payment. The payment will be notified to this Court by the Pleaders on both sides, and the Court below will be informed of the payment by this Court.
24. We make no order as to costs of this appeal.
N. R. Chatterjea and Richardson, JJ.
25. (July 18, 1917.)---The appellant having paid Rs. 1,500 on account of costs to Babu Priya Sankar Mozumdar, Vakil, for defendants Nos. 1, 2, 4 and 5 as ordered by the judgment of this Court dated 30th May 1917 and the said Vakil having admitted the payment thereof, the Court below will be informed of the said payment.
26. The Court below will now proceed with the suit in accordance with the directions given in the judgment of this Court dated the 30th May 1917.
27. Let the record be sent down without delay.
N. R. Chatterjea and Smither, JJ.
28. (June 1, 1917.)---Under Section 13 of the Court Fees Act, a certificate will be granted to the appellant authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal.