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Provabati Debi Vs. Rameswar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.248
AppellantProvabati Debi
RespondentRameswar Mandal and ors.
Cases ReferredLala Rup Narain v. Musammat Gopal Devi
Excerpt:
hindu law - hindu widow, alienation by, without legal necessity--one suit to have several alienations declared invalid--misjoinder of causes of action, if ground of appeal--civil procedure code (act xiv of 1882), section 578--civil procedure code (act v of 1s08), section 99. - .....following that decision of their lordships of the privy council, we are of opinion that the present appeal should be decreed and the judgment and decree of the lower appellate court set aside. we are unable to agree with the learned judge that the present suit was bad for misjoinder of parties or that, of there had been any such misjoinder, the defect was not amply covered by the provisions of section 578 of the old code, which are reproduced in section 99 of the new code. we, therefore, set aside the judgment and decree of the lower appellate court and direct that the case be sent back to that court for being dealt with according to law. costs will abide the result.2. as the date of the institution of the suit appears to bathe 18th of november 1901, we direct that the lower.....
Judgment:

1. The plaintiff-appellant brought a suit against the two sets of defendants, namely, defendants Nos. 1 to 10 who may be described as the Mandals and defendants Nos. 11 to 18 who may be described as the Chatterjees in order to have it declared that certain alienations made by her mother after the death of her father were invalid as affecting her reversionary right to her father's property. The Court of first instance decreed the suit with costs against both sets of defendants. Against the judgment and decree of the Court of first instance the Mandal defendants alone appealed to the lower appellate Court; the Chatterjee defendants did not appeal. The lower appellate Court reversed the judgment and decree of the Court of first instance and, dismissed the plaintiff's suit with costs in both Courts. The learned District Judge does not appear in his judgment to have recognised that the appeal was by one set of defendants only. The ground on which the lower appellate Court reversed the decision of the Court of first instance was that the plaintiff's claim involved two distinct and separate causes of action against two separate sets of defendants and, therefore, the suit was bad for misjoinder of causes of action. In arriving at that decision, the learned Judge relied on the judgment of this Court in the case of Ram Prasad v. Srimatee Sachi Dassi 6 W.N. 858. The decision in that case is, however, not in accordance with the decision of this Court in two other cases, namely, the cases of Ishan Chunder Hazra v. Rameswar Mondol 24 C. 831; Nundo Kumar Naskar v. Banomali Gayan 29 C. 871. The learned District Judge, in dealing with this question of misjoinder, remarks that the facts of the case of Nando Kumar Nuskar v. Banomali Gayan 29 C. 871 differ from those of the present case which, in his opinion, are similar to the facts of the case of Ram Prosad v. Sachi Dassi 6 C.W.N. 585. We do not think it necessary to discuss these decisions in full; for, we think that the point, on which the learned District Judge has set aside the judgment and decree of the Court of first instance, is, in fact, concluded by the judgment of the Privy Council in the case of Lala Rup Narain v. Musammat Gopal Devi 36 C. 780 : 13 C.W.N. 920 : 10 C.L.J. 58 : 3 Ind. Cas. 382 : 6 A.L. 567 : 5 M.L.T. 423 : 11 Bom. L.R. 833 : 19 M.L.J. 548 : 93 P.R. 1009 : 36 I.A. 103. That case was one brought by a reversioner to have certain alienations made by the widow set aside on the ground that they were invalid as against the reversioner's estate. In that suit were included four sets of persons in whose favour four different alienations had been made and the question was raised whether the suit was bad by reason of misjoinder of causes of action. That case is on all fours with the present case except that, in the present case, there are only two alienations which the plaintiff seeks to have declared invalid. In dealing with the question of misjoinder, their Lordships said that they thought it was very doubtful whether upon the strictest construction to be placed upon the Procedure Code, it could properly be said that there was any misjoinder in that case. Their Loraships went on to add: 'if there was any such misjoinder, Section 578 of the Code has, in their Lordships' opinion, the effect of preventing such defect from being made a ground of appeal and from being dealt with on appeal as it was dealt with by the Chief Court.' Following that decision of their Lordships of the Privy Council, we are of opinion that the present appeal should be decreed and the judgment and decree of the lower appellate Court set aside. We are unable to agree with the learned Judge that the present suit was bad for misjoinder of parties or that, of there had been any such misjoinder, the defect was not amply covered by the provisions of Section 578 of the old Code, which are reproduced in Section 99 of the new Code. We, therefore, set aside the judgment and decree of the lower appellate Court and direct that the case be sent back to that Court for being dealt with according to law. Costs will abide the result.

2. As the date of the institution of the suit appears to bathe 18th of November 1901, we direct that the lower appellate Court do, with the least possible delay, take up and dispose of the case.


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