1939     Present: Moseley A.C.J. and Wijeyewardene J.

KUDHOOS v. JOONOOS.

7-D. C. Colombo, 47,499. 

Misjoinder of parties and causes of action-No ground for dismissed of action -Amendment of pleadings-Action by administrator before grant of letters-No justification for dismissal of action-Muslim deed of gift- Reservation of life-interest-Intention to create gift under Roman-Dutch law.

A Court is not bound to dismiss an action on the ground of a misjoinder of parties and causes of action.

In such a case the Court may on application made and in the exercise of its discretion strike out one or more plaintiffs and give an opportunity for amendment of the pleadings, so as to make the plaint conform to the requirements of section 17 of the Civil Procedure Code.

Abraham Singho v. Jayaneris Singho (3 C. L. W. 53) not followed.

Where an administrator, who had applied for letters of administration Instituted an action before the grant of letters to him, the Court may postpone the hearing of the action pending the grant.

The Court would be justified in refusing to dismiss the action in such circumstances.

Silva v. Weerasuriya (10 N. L. R. 73) followed.

The failure to take out letters of administration is an irregularity which comes within the scope of section 36 of the Courts Ordinance and the respondent, who has obtained a decree, is entitled to claim the benefit of the section.

Where a Muslim donated property subject to the reservation of a life-interest in his favour and creating a fidei commissum in favour of the children of the donee,

Held, that the donor intended to create and did in fact create a valid fidei commissum as known to the Roman-Dutch law.

Weerasekere v. Peiris (34 N. L. R. 281) followed.

THIS was an action for declaration of title to property bearing assessment No. 64 at Hulftsdorp street.

By deed P 1 of December 8, 1894, Ummukuludu Umma gifted the property to Mahmood Natchia reserving a life-interest in her favour

and subject to a fidei commissum. By deed P 2 of September, 1902, Mahmood Natchia conveyed certain interests in the property to the defendant.

Ummukuludu died intestate about 1897 and letters of administration were granted to the first plaintiff. Mahmood Natchia died intestate in June, 1924, and letters of administration in respect of her intestate estate were granted to the second plaintiff on April 23, 1934. This action was institu­ted in January, 1932, asking for judgment declaring the first plaintiff entitled to the property as administrator of the estate of Ummukuludu or in the alternative declaring the second plaintiff entitled to the property in his own behalf or as belonging to the estate of Mahmood Natchia. The plaintiff alleged that the second plaintiff was the husband and sole heir of Mahmood Natchia and that he has applied for letters of administration to her estate in D. C. Colombo (Testy.) 5,967.

The defendant field answer pleading, inter alia, that there was a mis-joinder of parties and causes of action and that plaintiffs could not main­tain the action.

On March 16, 1934, the case came up fo