039-NLR-NLR-V-25-KANAGASABAPATHY-v.-KANAGASABAI-et-al.pdf
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Present: De Sampayo A.C. J. and Garvin A. J.
KANAGASABAPATHY v. KANAGASABAI el al.
71—D. C. Jaffna, 7 7,548.
Joinder of parties and causes of action—Civil Procedure Code, ss. 14
and 36.
Plaintiff alleged that his deceased father assigned certain bondsto first defendant and certain other bonds to second defendant intrust for the plaintiff and that defendants were appointed executorsof his father’s will, fluid that defendants as executors recoveredmoneys due on certain notes and had not accounted for the same.The plaintiff claimed on the first cause of tuition the value of thebonds fluid notes.
As a second cause of cation plaintiff alleged that the defendantssold nineteen lands belonging to his father’s estate and had notaccounted for the same.
For a third cause of action the plaintiffalleged that first def endanthsa, since his father’s death, been in possession of all the landsbelonging to plaintiff fluid had appropriated the rents fluid profits.
Held, that the plaint wflts bad for misjoinder of parties and causesof action.
The effect of section 36 of the Civil Procedure Code is to enablethe plaintiff to join several causes of action (1) against the defendantif there is one defendant, and (2) against the defendants, if there areseveral, provided in the latter case the several defendants are jointlyliable.
rjTHTS facts are Set out in the judgment.
Samarawiclcreme (with him Eajaratnam), for defendants, appel-lants.
Hayley (with him James Joseph), for plaintiff, respondent.
June 27, 1923. De Sampayo A.C.J.—
The question is whether in this case there is a misjoinder ofparties and of causes of action. The facts as alleged in the plaintare as follows :■—One A. Kandiah, the plaintiff’6 father, on January2, 1903, by deed No. 12,551 assigned to the first defendant the
1923.
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1923.
Dk Sampayo
A.C.J.
Kanaga•sabapaihy v.Kanagasabai
bonds specified in schedule B of the plaint of the total value ofRs. 2,319* 1*9, and he also on the same date by deed No. 12,550assigned to the second defendant the bonds specified in schedule Aof the value of Rs. 4,191*42. According to the plaintiff theseassignments were made to the two defendants respectively in trustfor the plaintiff for the purpose of recovering the amounts due andre-investing them for the plaintiff’s benefit. He complains thatthe defendants respectively made certain recoveries and re-investedthe money in a business carried on by the defendants at Trincomalee.He further says that his father, Kandiah, died on January 7, 1903,leaving a last will, of which he appointed the defendants as executors,and that Kandiah left him surviving, his son, the plaintiff, and twodaughters, Meenadchipillai and Nagamma, of whom the latterhad been dowried. He then proceeds to say that Kandiah wasentitled to Rs. 3,082*85 on promissory notes specified in schedule C,and that the defendants as executors recovered this sum, but havenot accounted to plaintiff for the same. He accordingly claimsfrom the defendants on the first cause of action the value of thebonds and the promissory no,tes.
As a second cause of action the plaintiff says that the defendantsas executors fraudulently and with a view to cause loss to himand his sister Meenadchipillai sold away nineteen lands belonging toKandiah's estate and specified in schedule D, and of the presentvalue of Rs. 6,470, of which he claims half, namely, Rs. 3,235, fromthe defendants.
The plaintiff’s third cause of action is that the first defendanthas since Kandiah’s death been in possession of all the lands belong-ing to the plaintiff and specified in schedule E, and that there is dueto him in respect of the rents and profits of the lands the sum ofRs. 12,539*90.
With regard to the alleged trusts, the assignments do not createany trust, but it would seem that the plaintiff depends on someconstructive trusts attaching to the assignments. In any case,the defendants are not joint trustees ; each of them can only be atrustee in respect of the bonds separately assigned to each. Thebreach of trust can only mean that each defendant invested in theTrincomalee business the money recovered on the bond assignedto him separatively.
As regards the promissory notes, the defendants as executorsare, of course, liable to account for them in the testamentary suit,and the plaintiff’s proper course would have been to proceed underthe provisions of the Civil Procedure Code in that suit. Assuming,however, that a separate action may be brought, the question iswhether the action is properly constituted.
It will be noticed from the above recital of facts, (1) that the twodefendants are joined together with regard to claims which should
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be made against them separately for the breaches of trust; (2)that with regard to the promissory notes the defendants are suedin their capacity of executors and not as trustees, and Meenadchiis not joined ; (3) that a similar remark applies to the plaintiff’ssecond cause of action with regard to the sale of nineteen lands;and (4) that the claim on the third cause of action is against the firstdefendant only* and in his personal capacity.
Section 14 of the Civil Procedure Code is that which providesfor the joinder of several persons as defendants. It declares that" all persons may be joined as defendants against whom the rightto any relief is alleged to exist, whether jointly, severally, or inthe alternative, in respect of the same causes of action.’1 Thelast words are essential, and I think that in respect, at all events,of the plaintiff’s first and third causes of action, tlxe provision ofthe above section has been contravened. The other section bearingon the subject is section 36, which provides for the plaintiff unitingin the same action several claims against the same defendant or thesame defendants jointly. I do not think that this section justifiesthe joinder of the third cause of action against the first defendantalone with the previous causes of action against both the defendants.I regret that I am unable to follow the reasoning of Pereira andEnnis JJ. in London and Lancashire Fire Insurance Co. v, P and O.Company1 on this point. It appears to me that the effect of section36 is to enable the plaintiff to join several causes of action, (1)against the defendant, if there is one defendant, and (2) againstthe defendants, if there are several, provided in the latter case theseveral defendants are jointly liable. This is the view taken in theIndian Courts—MvUick Kefait Hossein v. Sheo Pershad Singh?TJmabai v. Bhan Balwant.3 In my opinion there has been amisjoinder of defendants and causes of action in this case.
Section 35 (2) prohibits a claim against executors or adminis-trators being joined with claims against them personally, but inview of my opinion on the other points, it is not necessary to discussthe application of that provision to this case.
In cases of misjoinder of parties or causes of action* it is oftenpossible to allow a plaintiff to amend the plaint and restricthis claim. In any case, very extensive amendments would benecessary, and as plaintiff must, in any event, pay the costs up todate, it is more convenient to put an end to the present case, andleave plaintiff to commence other action or actions de novo.
I would, therefore, allow this appeal and dismiss the plaintiff’saction* with costs in both Courts, with liberty to him, however, tobring other properly constituted action or actions on the same
cause or causes of action.
1 (1914) 18 N. L. R. 15.
3 I. L. R. 34 Bom. 358.
1923.
Djs SaupayoA.C.J.
Kanaga-tabat-athy v.Kanagasabai
31. L. R. 23 Cal. 82.1.
( m )1928.
Kanaga-aaba/.a '<>/ r.Kanagasabai
Garvin A.J.—
I am in complete agreement with the opinion expressed by myLord, and have the same difficulty in applying the same reasoningin the case of the London and Lancashire 1 ire Insurance Co. v. F. and
Company (supra) to the circumstances of this case. Section 36
' permits the joinder in one action of several causes of action only
in two cases—(1) against the same defendant; (2) against the samedefendants jointly. It seems to me that it is within these limitsonly that simultaneous operation can be given to sections 14 and 36.
Set aside.
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