JAMSHEDJI NAOROJI GAMADIA Vs. SORABJI NAOROJI GAMADIA

JUDGEMENT

(1.) We have three applications before us, viz., (1) an application by respondent No. 1 to approve the draft minutes embodying the consent and other terms alleged to have been arrived at on the hearing of this appeal on Friday September 19, 1919; (2) a notice of motion by the second respondent dated October 7, 1919, asking for a declaration that the arrangement, if any, arrived at to take a consent decree, is not binding on him, and that the hearing of the appeal be proceeded with, and that if necessary he, the applicant, be made a party appellant; and (3) a notice of motion by the appellants dated October 9, 1919, asking that their consent may be; excluded from the proposed decree, and that the said decree be not certified to be for the benefit of the minor respondent No. 10. [After stating the facts his Lordship proceeded:].

(2.) It is certainly curious to find an appeal presented on the ground that the Trial Judge has given the appellants too much, viz., absolute interests, and that he ought to have given them less; viz., protected and determinable life-interests. But it was, Stated by their Counsel that this, was due partly to filial piety, and partly to family disputes over the rights of residence.

(3.) The procedure adopted in the memorandum of appeal was also curious; and must be mentioned having regard to what subsequently happened. It describes the appellants as two of the beneficiaries, so presumably the appeal was presented by them in their personal capacity and not as executors. That being so, respondent No. 2 should have been made a respondent in his representative as well as in his personal capacity. The course actually taken of joining the executors as respondents Nos. 2, 3 and 4 and of joining respondent No 2 over again as respondent No. 5 in his own right was in my judgment incorrect procedure. As was said by Sir Lawrence Jenkins in Rustomji v. Seth Purshotamdas 25 B. 606 at p. 612 : 3 Bom. L.R. 227 at p. 230: This doctrine is founded on the elementary rule of procedure, too often disregarded in this countary, that the same individual, even in different capacities, cannot be both a plaintiff and a defendant to one and the same action. While, however, at Common Law this rule led to the result we have indicated, the Courts of Equity surmounted this difficulty. Though they observed strictly the rule that a man cannot be both plaintiff and defendant, they did not allow it to stand in the way of doing justice between the parties ; for provided all interested were before the Court either as plaintiffs or as defendants, they adjusted and determined their rights. This is aptly; exemplified in Luke v. South Kensington Hotel Company (1879) 11 Ch. D. 121 : 48 L.J. Ch. 361 : 40 L.T. 638 : 27 W.R. 514.