The main legal point established in the judgment is the distinction between actions of pure tort and actions for wrongs arising out of a contract, and the implications of such distinction on the competence of the suit and the joinder of parties.

Venkatusubba Rao, J.

1. The suit was dismissed by the Lower Court on the ground that the plaintiff was not competent to maintain the action in the absence of his brother as a party on the record and that when, on this defect having been pointed out, he applied to have his brother impleaded, the suit was barred by limitation. The plaintiff attacks the correctness of this decree, The suit was filed on the 14th of February, 1920, and its nature may be thus shortly described. The defendants sold to the plaintiff and his brother, by a conveyance, dated 17th February, 1917, certain villages including Penjendra, the suit village. The price of the village in question was fixed at 29 times its net income, which was stated at the time of the contract to be a certain amount. The plaintiff, however, discovered later, that the amount of the income had been overstated and that certain other fraudulent representations had been made. He goes on to allege, that in a partition entered into subsequently between himself and his brother, the suit village fell to his share and that by reason of the aforesaid fraud of the defendants at the time of the sale, he is entitled to recover from them compensation. The measure of damages is stated to be the amount received by the defendants in excess of what was actually payable to them together with interest thereon. It was further alleged that the fraud was discovered on the 24th of April, 1919, on which date the cause of action was said to have arisen. It will be necessary to advert presently to the course taken by the suit in the Lower Court; but, for the present, it is sufficient to observe, that the plea of non-joinder was taken on the 23rd of October, 1922, which led to the raising of an issue on that point and that the plaintiff thereupon, on the 19th of July, 1923, presented an application requesting his brother to be added as a pro forma defendant. It is common ground that, if the suit had been instituted on the lastmentioned date, it would have been barred by limitation. The Lower Courts judgment is obscure in several places, but its decision, both parties agree, rests on the ground, that it would be useless to bring the plaintiffs brother on the record, at a time, when if the defect was allowed to be cured, the suit would be liable to be dismissed as barred by time. In the result, the plaintiffs application to implead his brother as party defendant was rejected on the 6th of April, 1925, and on the same date the suit itself was dismissed on the ground that, as constituted, it was incompetent.

2. The question to decide is, whether this is an action of pure tort or an action for a wrong arising out of a contract. On that depends whether the decision of the Lower Court is right or not. Torts, strictly speaking, are wrongs independent of contract; but the law recognises a distinction between wrongs arising out of a contract and wrongs wholly independent of contract. The latter are called "pure torts" in order that they may be distinguished from the former.

3. The legal incidents of these two kinds of torts vary greatly. In an action for a wrong arising out of a contract, the same persons must be joined as parties as are necessary in actions for breach of contract. But in actions of pure tort (that is, for wrongs independent of any contract) much greater liberty is allowed as to the joinder of parties.

4. In order, therefore, to decide, whether a suit, for a wrong arising out of a contract, is properly constituted or not, the same principles must be applied, as if the case is one for breach of contract.

(Odgers on The Common Law, 3rd Ed., Vol. I, p. 646; Vol. II, pages 474 and 475.)

5. As to who can claim performance of a promise made to joint promisees, the law is declared by Section 45 of the Indian Contract Act. That section reads thus:

When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests,