1949  Present : Nagalingam J. and Windham J.

THANGAMMAH et al, Appellants, and KANAGASABAI et al., Respondents

S. C. 471-D. C. Jaffna, 1,105

Misjoinder-Parties and causes of action-Right of pre-emption-Separate sales by co-owners-Right to purchase-One cause of action-Joinder of plaintiffs-Civil Procedure Code-Section 11.

Plaintiffs who were each entitled to 1/4 share of a land brought an action for pre-emption of the other half which belonged to two sets of defendants, viz., the first and second defendants who by 8D1 transferred to the eighth defendant and the third to the sixth defendant who by 8D2 also trans-defendant to the eighth defendant. On an objection that there was a misjoinder of parties and causes of action.

Held, that the plaintiffs' cause of action was not the execution of deeds 8D1 and 8D2 but the violation of the plaintiffs' right, to purchase the outstanding half-share and that there was no misjoinder.

Held, further, that the right of pre-emption is based on an implied contract whereby co-owners are jointly bound to one, another. The plaintiffs were therefore joint contractors and entitled to join in one action under section 11 of the Civil Procedure Code.

APPEAL from a judgment of the District Court, Jaffna.

F. A. Hayley, K.C., with H. W. Tambiah, for plaintiffs appellants.

C. Chellappah, for 2nd defendant respondent.

H. V. Perera, K.C., with C. Vanniasingham, for 7th and 8th defendants respondents.

Cur. adv. vult.

April 12, 1949. NAGALINGAM J.-

This appeal raises a question with regard to joinder of parties and causes, of action. The plaintiffs claiming to be the owners of an undivided 1/2 share of the lands described in the schedule to the plaint instituted this action against eight defendants for a declaration that they are entitled to pre-empt the remaining 1/2 share which they allege has been purchased by the 8th defendant in violation of the right conferred on them by the Thesawalamai. The title to the remaining half-share, according to the plaintiffs, is claimed by two sets of defendants: the 1st and 2nd defendants on the one hand and the 3rd, 4th, 5th and 6th defendants on the other.

It is unnecessary for the purpose of this appeal to notice the title of these two sets of defendants. It is sufficient, however, to say that by deed 8D2 of November 21, 1943, the 3rd, 4th, 5th and 6th defendants transferred to the 8th defendant, the wife of the 7th defendant, the half-share claimed by them. On the following day, namely, November 22, 1943, by deed 8D1 the 1st and 2nd defendants purported to convey their half-share also to the 8th defendant. The plaintiffs allege that both the deeds 8D2 and 8D1 were executed without notice to them and without their being given an opportunity of exercising their right of pre-emption as co-owners of the lands. On a plea taken on behalf of the defendants that there was a misjoinder of parties and of causes of action, the action has been dismissed. The argument has been advanced, and that argument apparently found favour with the learned District Judge, that the cause of action against the 3rd, 4th, 5th, 6th and 8th defendants was one that arose from the execution of the deed 8D2 and that it was distinct from the cause of action against the 1st, 2nd and 8th defendants, which arose as a result of the execution of the deed 8D1.

The question that meets one at the very threshold of this case is whether there are two causes of action against the two sets of defendants. The plaintiffs contend that there is only one cause of action against all the defendants. The learned Judge, although he himself referred to the definition of the term cause of action, has in the course of the discussion of the case fallen into the error of regarding the cause of action asserted by the plaintiffs as a wrong in the sense of a tort.

The term cause of action is defined in section 5 of the Civil Procedure Code as t