S.C. Lahiri, J.
1. These six Rules have been obtained by several defendants against an order of the Subordinate Judge, 1st. Court Howrah, dated the 3rd August, 1954, by which the learned Subordinate Judge has decided a preliminary issue on rnultifariousness in favour of plaintiff. The facts which are relevant for the purposes of these Rules are these:
The plaintiff opposite party instituted a suit for partition as far back as the 12th of March, 1941, and the suit was registered as Title suit No. 5 of 1941. In the plaint as originally filed, there were only seven items of property in the schedule. But from time to time by amendment of the plaint the plaintiff was allowed to include certain other properties. Amongst the defendants who were impleaded as parties to the suit, defendants Nos. 1 to 19 are members of the Pal Choudhury family and are co-sharers of the plaintiff but defendants Nos. 20 to 27 were impleaded on the allegation that some of the properties which are really parts of the joint family estate stood in their names. In the plaint as originally filed, again, there were two prayers, namely, prayers B and C -- prayer B being for a declaration that defendant No. 1 holds the Kadamtolla bazar as trustee for the benefit of the entire family including the plaintiff, and that defendant No. 120 was only a benamdar for the defendant No. 1; Prayer C being for an injunction restraining defendants Nos. I and 20 from putting to sale the Kadamtolla bazar in execution of mortgage decree in title execution case No. 62 of 1940. Upon these two prayers the learned Subordinate Judge held that the suit was not a simple suit for partition and directed the plaintiff to pay the ad valorem court fees. Against that order of the Subordinate Judge the plaintiff moved this Court and obtained a Rule which was Civil Rule No. 295 of 1945. At the hearing of that Rule the plaintiff gave up his prayer for injunction and the prayer for declaration, with the result that the plaintiff was allowed to proceed with the suit as one for partition but liberty was reserved to the defendants to take all such objections as they could under the law as to the maintainability of the suit on the ground of misjoinder of the parties. This order was passed by this Court on the 12th of November, 1943. The plaintiff included several items of properties in the suit by one application for amendment dated the 20th or April, 1942 and another application dated the 1st of June, 1942.
2. The substance of the plaintiff's case is that with a view to place the joint family properties beyond the reach of creditors, Kunja Behari Pal Chowdhury, who was the father of defendant No. 1, and who was the karta of the joint family resorted to various kinds of fictitious transactions for the purpose of transferring the ostensible title in those properties in favour of strangers, but the plaintiff claims that in spite of these transfers some of which are challenged as benami, and some as fraudulent, the properties which stand in the names of the strangers, never ceased to be parts of the joint family estate. Upon these allegations, the plaintiff prays for one-fourth share of all the properties which are included in the schedule to the plaint. The stranger defendants who are defendants Nos. 20 to 27 have been impleaded by the plaintiff for the purpose of a decision in their presence to the effect that the properties which stand in their names are nevertheless, parts of the joint family properties.
3. Upon the pleadings filed by the parties issues were settled by the court on the llth of November, 1942. Thereafter, after several appeals and revisional applications to this Court, the suit was taken up for peremptory hearing on 20-6-1954, when the defendants filed an application for raising an additional issue on the question of multifarious-ness. This issue was raised and decided in favour of the plaintiff by the learned Subordinate Judge by his order dated the 3rd of August, 1954, which is the subject matter of these six Rules.
4. The question which is common to all these Rules is whether the plaintiff's suit is bad as offending against the provisions of Order 1 Rule 3 and Order 2 Rule 3 of the Code of Civil Procedure and also against certain principles laid down by this Court regarding joinder of causes of action and parties in suits for partition.
5. With regard to the first question as to whether the suit offends against the provisions of Order 1 Rule 3 and Order 2 Rule 3, it has been held by the learned subordinate Judge that there is a common question with regard to all the properties which have been included in the plaint and that question is whether or not they form part of the joint family estate in spite o the various transactions by which the ostensible title to those properties passed to the stranger defendants Nos. 20 to 27. It is true, as has been pointed out by the learned Advocates for the petitioners in the different Rules, that the series of transactions by which one of these stranger defendants acquired ostensible title, are entirely independent of the series of transactions by which another stranger defendant acquired title to other properties. But in spite of that the question remains whether as a result of these transactions the properties passed out of the joint family estate or remained parts of the joint family estate as alleged by the plaintiff. According to Order 1 Rule 3, all persons can be joined as defendants against whom any right to relief arising out of the same act or transactions or series of act or transactions is alleged to exist where, if separate suits were brought against such persons, any common question of law or fact would arise. In this suit there is no doubt that if the plaintiff were required to file separate suits against the stranger defendants, the common question of fact that would arise in each suit, would be, whether in spite of transactions by which the stranger defendants acquired title, the properties remained parts of the joint estate. There is therefore, no reason why the plaintiff should not be allowed to include all the properties the ostensible title to which passed in favour of the stranger defendants, in this suit for partition.
6. In support of this view Mr. Jana appearing for the plaintiff opposite party has relied upon the decision in the case of Ramendra Nath Roy v. Brojendra Nath Das, ILR 45 Gal 111: (AIR 1918 Cal 858) (A), where Woodroffe, J. pointed out that it is not necessary under Order 1 Rule 3 that all questions must be common to all the defendants but that it is sufficient if there is a question which is common to all the defendants. I have already pointed out that the common question involved with regard to the stranger defendants in this case is whether the properties formed part of the joint estate. The plaintiff challenges the entire series of transactions by which the ostensible title was transferred to the strangers. He may or may not succeed in proving all the allegations made in the plaint but the question for our consideration at the present moment is whether upon the allegations made in the plaint, the plaintiff is entitled to include all the different properties and all the stranger defendants in this suit. Having regard to all that I have stated, I have no doubt that the plaintiff has certainly a right to include these properties and to implead the stranger defendants in the suit.
7. With regard to the joinder of parties and joinder of causes of action in a suit for partition there is however, another body of decisions in this Court, upon which strong reliance has been placed by Mr. Bannerjee, appearing for the petitioners in Civil Revision Cases Nos. 2835 and 2836 of 1954. It has been contended that the general Rule is that a suit for partition must embrace all the joint properties but that there is a complementary Rule that no property is to be included in which all the co-sharers have no interest. Mr. Banerjee cited before us the decision in the case of Ram Taran v. Hari Charan, 18 Cal LJ 556 (B), where Jenkins C. J., and Mookerjee J., ruled that properties belonging to some and not to all the co-sharers cannot be brought into the hotchpot in a suit for partition. This principle was reiterated in the case of Sris Chandra v. Mahima Chandra, 23 Cal LJ 231: (AIR 1916 Cal 891 (2)(C), (Mookerjee and Roe JJ). It was also recognised in the well-known case of Rajendra Kumar v. Brojendra Kumar, 37 Cal LI 191: (AIR 1923 Cal 501) (D), and also followed in the case of Harey Harey Sinha v. Hari Chaitanya Sinha, 40 Cal WN 1237 at page 1245 (E). The true meaning of this Rule is not that no property can be brought into the hotchpot in which all the defendants do not claim an interest but that no property can be so brought in which all the co-sharers do not claim interest. In a partition suit the defendants may include co-sharers as well as strangers. It is not the law that those properties in which all the defendants do not claim interest have to be left out in a suit for partition but it is the law that only those properties have to be left out which, upon the allegations in the plaint, are not held in common by the co-sharer defendants. Otherwise no question of title or benami could be investigated in a suit for partition whereas it is the settled law that such questions can and should be decided in a partition suit. See the decision of Annapuma Debya v. Golapmani Debya, 35 Cal LI 530: (AIR 1922 Cal 307) (F), (Mookerjee and Cuming JJ.), where, after an exhaustive review of all the authorities on the point, Indian and English, Sir Ashutosh Mookerjee J., pointed out that under the old English law, if a disputed question of title arose in a suit for partition, the equity courts used to stay their hands till the common law courts decided the question of title but after the passing of the Judicature Act, it is no longer necessary that a court which is trying a partition suit should stay the hearing of the suit pending the determination of the question of title by the common law court. Partition is an equitable relief and the courts in India have the jurisdiction to decide questions which, under the English law, fell within the jurisdiction of common law courts and also questions which came within the jurisdiction of equity courts. Consequently, Sir Ashutosh Mookerjee pointed out that if in a suit for partition disputes arise between the parties, as to the rights or interests in the joint family properties, such disputes should be litigated and determined in such action and his Lordship-pointed out at page 533 that
'it very frequently happens in joint families that properties stand in the names of female members. In a suit for partition of the family estate, the plaintiff may include such estate and join ladies as defendants, so that they may be bound by the results of such litigation.'
8. Upon the authorities cited above it appears to be well established that properties in which all the defendants do not claim interest, may be-included in a suit for partition, provided all the co-sharer defendants have an interest therein. Judged by this test there can be no doubt that according to the allegations made by the plaintiff in his plaint, some of the properties though standing in the names of defendants Nos. 21 to 27, are parts of the joint family estate, in which all the co-sharer defendants, namely, defendants Nos. 1 to 19, have a share. The inclusion of these properties in; the plaint and the joinder of defendants Nos. 21 to 27 therefore, do not offend against the Rule laid' down in the cases cited above. With regard to defendant No. 20 who is the petitioner in Civil Revision Case No. 2730 of 1954, the allegations in the plaint are to the effect that the defendant No. 1 acting as the Karta of the joint family after the death of his father, mortgaged sixteen annas share of the Kadamtollah bazar in favour of one Nagendra Nandi who obtained a decree on the basis-of the morteage and subsequently assigned that decree to defendant No. 20, and defendant No. 20 in his turn, started execution of the mortgage decree as an assignee in Title execution case No. 62 of 1940. According to the plaintiff, defendant No. 1 had no title to mortgage the sixteen annas share of the Kadamtollah bazar and consequently the mortgage decree obtained by Nagendra Nandi and subsequently assigned to defendant No. 20, could not be executed against the sixteen annas share of the Kadamtollah bazar. It is true that the defendant No. 20 has not yet acquired any title to the Kadamtollah bazar because he is merely an assignee of a mortgage decree in respect of that bazar and for that reason we were at one stage inclined to think that he was perhaps not a necessary party in this suit for partition but after careful consideration we have come to the conclusion that he is proper, if not a necessary party, for the following reasons: The question whether defendant No. 1 had exclusive title to the Kadamtollah bazar can certainly be decided in this suit for partition and the decision on that issue will have an important bearing on the mortgage decree of which defendant No. 20 claims to be an assignee. For this reason we hold that defendant No. 20 is a proper party to this suit and he has been rightly impleaded as a defendant. Civil Revision Case No. 2730 of 1954 should therefore be discharged with costs.
9. Civil Rule No. 2729 of 1954 has been obtained by the defendant No. 26 who has purchased the interest of defendant No. 22 during the pendency of this litigation. On behalf of defendant No. 26 it was contended that his vendor, defendant No. 22, was interested only in the properties which were included in the plaint by the petition filed on 20-4-1942, and also to a certain share in item No. 7 of the plaint as it originally stood. On his behalf it was contended that he is not interested in all the items of the joint family property and he could not be rightly impleaded in the suit for partition, The allegations made by the plaintiff with regard to these properties is that the defendant No. 22 was a benamdar for all the co-sharers of joint family property and consequently though the property stood in the name of defendant No. 22, they were really parts of the joint family estate. As I have already pointed out that if according to the plaintiff, all the cosharers defendants have an interest in the properties which stand in the name of defendant No. 22, those properties can be included, in this suit for partition, even though defendant No. 22 may not be interested in other properties. This Rule, therefore, should also be discharged with costs.
10. Civil Rule No. 2835 of 1954 has been obtained by defendant No. 1 and Civil Rule No. 2836 of 1954 has been obtained by defendant No. 21 who is the wife of defendant No. 1. Mr. Bannerjee appearing for defendant No. 21 in Civil Revision Case No. 2836 of 1954, has invited our attention to paragraph 11 of the amended plaint in which it is stated that in 1926, the defendant No. 1 procured a money decree in a suit for contribution and in that suit the plaintiff was impleaded as a minor although he was in fact a major at that time and the suit terminated in a solenama decree. The plaintiff denied having executed any solenama and consequently the said decree was challenged as a nullity and not binding upon the plaintiff. That decree was subsequently assigned in favour of defendant No. 21 who purchased the property at the execution sale held in execution of that decree. Mr. Bannerjee contends that this is not an allegation of benami but it is an allegation as to the character of the decree which was assigned to defendant No. 21 and therefore it falls outside the scone of a suit or partition. I am sure I cannot accept this argument. In a suit for partition the court his jurisdiction to consider not only all questions of benami but also all questions relating to the process by which joint family property has been transferred to an outsider. For these reasons it is impossible for us to interfere in these two-Rules as well. These two Rules must accordingly be discharged with costs.
11. Civil Rule No. 3057 of 1954 has been obtained by defendant No. 27 who is the wife of defendant No. 3. She purchased properties which stood in the name of defendant No. 22 Harendra Nath Ghose. The properties which stood in the name of Harendra Nath Ghose were included in the plaint by an amendment dated the 1st of June, 1942. According to the plaintiff, Harendra Nath Ghose who sold the properties to defendant No. 27 was a benamdar for all the co-sharers of the joint family. On behalf of defendant No. 27 it has been contended that defendant No. 22 purchased this property at an astam sale for a sum of Rs. 5000/-(five thousand only) and therefore the title of Harendra Nath Ghose cannot be challenged in this suit. The question whether Harendra Nath Ghose's title can or cannot be challenged or whether Harendra Nath Ghose is or is not a benamdar for the joint family is quite foreign to the question whether the suit is bad for multifariousness. As the plaintiff alleges that Harendra Nath Ghose is a benamdar for the joint family, the properties standing in his name nave been rightly included in the plaint and Harendra Nath. Ghose has been rightly impleaded as a defendant. This Rule must also be discharged with costs,
12. Civil Rule No. 3058 of 1954 has been-obtained by defendants Nos. 8 and 9 who are interested in all the seven items of properties which, were included in the plaint by the amendment petition dated 20-4-1942 and also in a certain share of item No. 7 of the original plaint. The case ef these two defendants stands on the same footing as-the case of defendant No. 21 in Civil Revision Case No. 2836 of 1954 and for the same reason this Rule must also be discharged with costs,
13. There is however one point to which I must refer before parting with these cases. I have already stated that all the issues in this suit were settled on 11-11-1942. On that date all the defendants who have obtained these Rules could have raised the plea of multifariousness because the amendments by which the properties in which they claim interest were included in the plaint, were made in the months of April and June, 1942; but instead of raising that plea on that date they waited for twelve years and raised the plea of multifariousness only on 20-8-1954, when the suit was taken up for peremptory hearing. The rule of multifariousness is a rule of convenience and it is primarily in the discretion of the court to decide; whether the plaintiff should be allowed to proceed with different causes of action in the same suit upon a consideration of all the facts and circumstances of the case. The omission of the defendants to raise the plea of multifariousness for a period of more than twelve years from the date of the framing of the issues, is, in my opinion, fatal to their claim. For the reasons given above. I would discharge all these Rules with costs to the plaintiff opposite party.
J.P. Mitter, J.
14. I agree.