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Present: Shaw A.C.J., Be Sampayo J., and Schneider A.J.
HEENHAMI v. MOHOTIHAMI.
386—D. C. Ratnapura, 2,640.
Co-owners—Action by one co-owner against another for declaration oftitle and damages—Are all co-owners necessary parties to action!—Civil Procedure Code, ss. 17, 18, and 22.
There is no rule of law that a co-owner cannot maintain an actionagainst another co-owner without joining all the other co-owners ofthe land.
– “ No doubt in many cases they are proper parties, and would bejoined on an application being made for the purpose. In somecases they may even be parties, whose presence before the Court maybe necessary in order to enable the Court to effectually and com-pletely adjudicate upon all the questions involved in the action,in which case the Court may add them of its own motion undersection 18, but if they are not added, the Court should, in accordancewith the provisions of section 17, deal with the matter in contro-versy so far as regards the rights of the parties actually before it.”
rpHE facts are set out in the judgment.
R. L. Pereira (with him P. M. Jayewardene), .for appellant.—Therule is well established that one co-owner cannot sue anotherco-owner without joining all the co-owners, whether it be for declara-tion of title, possession, or ejectment. The non-observance of therule is bound to disturb the possession of the other co-owners if theydo not admit the correctness of the shares decreed to the partiesbefore the Court, and this will lead to a multiplicity of actions.The object should be to settle the disphte once and for all. Mudi-yanse v. Silva1 and D. C. Matara, No. 6,583. *.
Samarawickreme, for respondent.—No objection on the ground ofnon-joinder of parties was taken at the trial. There is no invariablerule that all co-owners should be joined in an action where thedispute is between some only. The matter could be decided withoutinvolving the plaintiff in the expense of joining all co-owners. Anyjudgment will bind only the parties, and will not affect the rights ofothers. Section 17 of the Civil Procedure Code provides that noaction shall be defeated by reason of the non-joinder of parties.
Cur. adv. vvlt.
i (1916) 19 N. L. R. 120.* S. C. Mins., August 4, 1916.
September 22, 1916. Shaw A.C.J.—
In this case the plaintiff claimed a declaration oi title to certainshares of land against the defendant, another co-owner, who con-tested his title and damages. The District Judge after hearing theevidence made the declaration asked for, and directed the defendantto pay Its. 50 damages agreed upon.
The defendant appealed, basing his appeal on the ground that -there were other co-owners of the land who have not been joinedas parties, and it was contended that two recent cases (Mudiyansev. Silva 1 and D. C. Matara, No. 6,583 2) have decided that aco-owner cannot maintain an action against another co-ownerwithout joining all other co-owners of the land. No- objectionon this ground was taken at the trial, and no application was madeby the defendant to add the other co-owners.
When the appeal first came before my brother De Sampayo andmyself, it appeared to us that, in view of the provisions of sections IT,18, and 22 of the Civil Procedure Code, it was doubtful whether thecontention raised was sound. We accordingly reserved the case forthe consideration of the Pull Court.
I am by no means certain that the Judges who decided those caseaever intended to lay down the proposition contended for by theappellant. In view of the express provisions contained in the CivilProcedureCode, it appearsto me impossible to contend that
an actionby one co-ownershould bedismissed unlessall the
co-owners are made parties to the suit. No doubt in many casesthey are proper parties, and would be joined on an application beingmade for the purpose. In some cases they may even be partiesrwhose presence before the Court may be necessary in order to enablethe Courtto effectually andcompletelyadjudicate uponall the
questions involved in the action, in which case the Court may addthem of its own motion under section 18, but if they are not added,the Court should, in accordance with the provisions of section 17,deal with the matter in controversy so far as regards the rights ofthe parties actually before it.
PasaivooAppuhamy v. Leana Appu 3and other casescited in
Mudiyanse v. Silva,1 which appear to hold an action cannot bemaintained unless all the co-owners are made parties, were priorin date to the provisions contained in the sections of the, CivilProcedure Code I have referred to, and, in so far as they may so>decide, are superseded by those provisions. I am by no meanssure that those cases ever decided that all co-owners must alwaysbe joined, but in view of the opinion I have expressed above I neednot go into that matter.
1 (1916) 19 N. L. R. 129.2 S. C. Mins. r August 4, 1916..
2 7 S. C. C. 190.
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The cases decided since the enactment of the provisions in theCivil Procedure Code, Arnolds v. Dissan 1 and Per era v. Fernando,3appear to show that it was not considered that all co-owners mustthe result of the present suit.
In the present case the co-owners who have not been joined werenot necessary parties, and it is even doubtful if they were properparties to have been joined. Their rights will not be affected bythe result pf the present suit.
I would dismiss the appeal, with costs.
Dr Sampayo J.—
This is an action in which the plaintiff claimed title to certainshares of land, and complained that the defendant, who was alsoentitled to some share, had cultivated and appropriated the wholecrop. He asked for declaration of title and for damages. Thereappears to have been other co-owners who were no parties to theaction. In the pleadings and at the trial no question was raisedas to the constitution of the action, and the District Judge decidedthe case on the merits in favour of the plaintiff. But in the petitionof appeal the defendant took an objection to the effect that theplaintiff could not maintain this action against the defendant withoutjoining the other co-owners as parties. When the appeal cameup for argument before the Acting Chief Justice and myself, thejudgment of my brother Schneider, concurred in by Ennis J.T inMudiyanse v. Silva, 3 was cited to us in support of the objection,and it was thought desirable, especially in view of the provisionsof sections 17 and 22 of the Civil Procedure Code, to refer the pointfor consideration by a Bench of three Judges.
The judgment of my brother Schneider reviews the previouscases on the subject of joinder of co-owners, and contains a carefulexposition of the rule of procedure requiring such joinder, and Ineed not say that I fully accept the general principle therein stated.The principal case referred to in that judgment was decided beforethe Civil Procedure Code came into operation, and none of the casesappear to me to support the view that the rule is absolute andinvariable, and that the non-observance of it must necessarily resultin the dismissal of the action. Nor do I think that the judgmentin the Batnapura case itself was intended to go that length. Formy brother Schneider, in the concluding portion of his judgment,considered the question of sending the case back for the purpose ofadding the absent co-owners under section 18 of the Code, but hethought that as the title had not been properly stated by either sideno useful purpose would be served by following such a course, butdismissed the case with liberty to bring a fresh' action. In thelater case, 294—D. C. Matara, 6,583,4 decided by the same learned
(1900) 4 AT. L. It. 163.3 (1916) 19 N. L. R. ISO.
(1908) 2 L. L. R. 48.* S. C. Mins., August 4, 1916.
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Judges, the plaintiff’s action was dismissed only because it was nota simple claim of title between two parties, but was a complicatedquestion between co-owners, which it was practically impossibleto decide without all the co-owners being made parties to theaction. This, I think, indicates the right view to be takeneven in cases where the objection is raised at the proper time.Section 17 of the Civil Procedure Code provides that no actionshall be defeated by reason of the non-joinder of parties, and thatthe Court may in every action deal with the matter in controversyso far as regards the rights and interests of the parties actuallybefore it. Section 22 provides that all objections for want ofparties shall be taken at the earliest possible opportunity, andin all cases before the hearing, and any such objection not sotaken shall be deemed to have been waived by the defendant.In Juan Appu v. Helena Hamy, 1 Lawrie J. considered that thesesections disposed of the objection which had been taken only inappeal, and added “ I quite agree that in the ordinary case allthe shareholders should be parties to the action for the ascertain-ment of the shares of one or more of them, but that is not an absoluterule, each case must depend on its own facts. In some- cases thedispute may so obviously be between only a few of the shareholdersthat it would be merely embarrassing to bring in others.” In thesame case Bonser C.J., while adhering to the opinion expressed inAmolis v. Disan,2 agreed to affirm the decree because the objectionwas not taken in the Court below, and because the dispute was solimited to the persons concerned that it might be fitly decidedwithout endangering the rights of any of the other co-owners. InPaulu Perera v. Constantine Fernando, 3 where the District Judgehad ordered the outstanding co-owners to be added, Wendt andWood Benton JJ. even doubted whether in. the/ circumstances ofthat case the order was correct, but would not interfere with thediscretion of the District Judge, who had thought that the presenceof the co-owners was necessary to enable the Court effectually andcompletely to adjudicate upon and settle all the questions involvedin the action. In my opinion sections 17 and 22 of the Code areintended to do away with all technical objections on the score ofnon-joinder or mis-joinder of parties unless they are taken in duetime and for good reason. If, however, it be found that the actioncannot proceed for want of parties, section 18 enables the Courteven mero motu to add such parties. In the present case the causeof action is that the defendant took the plaintiff’s share of the crop,and the prayer for declaration of title is only incidental to the claimfor damages against the defendant. The dispute, I think, is onepurely between the plaintiff and the defendant, and the decisionof it will in no way prejudice the rights of the other co-owners. i
i(1901) 2 B. 19.2 (1900) 4. N. L. B. 163.
* (1908) 2 L. L. R. 48.
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In my opinion the objection should not prevail, and as there isno other point seriously pressed, the appeal should be. dismissed,with costs.
I have had the advantage o£ reading the judgment of my brotherDe Sampayo in this appeal. He has correctly interpreted myjudgment in Mudiyanse v. Silva. 1
I,have nothing to add to what I said in that judgment of mine,and agree with my brother De Sampayo’s judgment in this appealand with the order he proposes to make.
De SampatoJ. '
HEENHAMI v. MOHOTIHAMI