Fernando Et Al., V. Fernando

1937   Present: Hearne J. and Fernando A.J.

FERNANDO et al. v. FERNANDO.

88-D. C. Colombo, 483.
 

Joinder of causes of action-Misjoinder of parties-Civil Procedure Code, ss. 14 and 36.

Where two causes of action are joined in one action against two defendants, in one of which it is claimed that the defendants are jointly-liable and in the other it is claimed that one defendant is solely liable,-

Held, that there was a misjoinder of parties and causes of action.

Kanagasabapathy v. Kanagasabai (25 N. L. R. 173) followed.

London and Lancashire Fire Insurance Co. (.18 N. L. R. 15) not followed. .

Held further, in such a case the Supreme Court may remit the action to the trial Court for such amendments in the pleadings as may enable the plaintiffs to regularize the proceedings.

PLAINTIFFS who are the children of the first defendant claimed that on deed No. 3,004 of February 17, 1885, the first defendant became entitled to an undivided half share of certain property subject to a fidei commissum in favour of her children. The first defendant instituted a partition action for this property in 1911, and decree for sale was entered. At the sale the first defendant purchased a divided block for Rs. 41,600 and having obtained from Court an order of credit for Rs. 24,870 being half the proceeds of sale realized from the entire property, paid into Court the balance sum of Rs. 16,730 and obtained a certificate of title in her favour for the said block. Plaintiffs claimed that by reason of these facts the first defendant held 2487/4160 shares of the said divided block subject to the fidei commissum or alternatively in trust for the beneficiaries under the deed of 1885.

In the alternative the plaintiffs stated that the first defendant fraudulently concealed from the Court the existence of the fidei commissum and obtained a decree for sale in the partition action causing damage to the beneficiaries under the deed of 1885 to the extent of Rs. 24,870. The plaintiffs claimed this sum as damages from the first defendant, the said sum to be declared subject to the terms and conditions set out in the deed of 1885 or alternatively in trust for the beneficiaries under the said deed.

The plaintiffs further stated that the first defendant fraudulently and collusively with the second defendant in order to defeat the rights of the plaintiffs gifted the said block in 1920 to the second defendant.

The plaintiffs therefore prayed-

(i.) For a declaration that the first and second defendants hold 2487/4160 shares of the said land subject to the terms, conditions, and restrictions set forth in the deed of 1885 or in trust for the beneficiaries referred to in the said deed.

(ii.) In the alternative for a declaration that the sum of Rs. 24,870 which represented the half share of the proceeds of sale be held in trust by the first defendant subject to the conditions

set out in the deed of 1885 or in trust for the beneficiaries under the said deed and that the first defendant be ordered to bring the said sum into Court within a fixed period.

(iii.) In the. alternative that the first defendant be ordered to pay into Court a sum of Rs. 24,870 as damages and that the said sum be declared subject to the conditions set forth in the deed of 1885.

The defendants pleaded that there was a misjoinder of parties and causes of action. The learned District Judge held that there was no misjoinder. The second defendant appealed from that order.

H. V. Perera, K.C. (with him Amarasekera, Weerasooria, and E. B. Wikramanayake), for appellant.-There is a clear misjoinder on the face of the plaint. The cause of action against the first defendant arises from the sale under the partition decree. The second, defendant was no party to that. The cause of action against the second defendant is his assertion of title to the property. This cause of action does not touch the first defendant. There is not

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