NATHUBHAI ICHHARAM Vs. NARAYANACHARYA RAMACHARYA

JUDGEMENT

(1.) The plaintiff respondent in this appeal, as the owner and manager of the temple of Shri Balaji at Surat, sued for the administration of the estate left by the deceased Vijubhai Kashidas, who died on March 27, 1920. He made a will in about 1907, under which, after the death of his then wife, Bhikhi, he dedicated his estate to this temple. Subsequently, Bhikhi died and Vijubhai remarried. After his death his second widow, whose posthumous daughter had died, contracted a natra marriage. The plaintiff, accordingly, sued for administration and accounts from the executors of this will defendants Nos. 1 and 2. Defendant No. 2 was a cousin of the deceased, but is held by the Subordinate Judge to be under no liability to account, not having administered the estate. Defendant No. 1 was, on the other hand, held to be liable, and a preliminary decree has been passed against him. He appeals.

(2.) The first point taken on his behalf is that there has been misjoinder and non- joinder vitiating the suit. This objection arises out of the relief sought by the plaintiff in regard to a partnership business, in which the deceased was one of the partners, The other two partners were defendant No. 1 and one Ratansi, who was not made a defendant in the suit, although he was alive when it was brought. He has since died. The plaintiff seeks accounts of this partnership business and the Subordinate Judge has directed that an account should be taken of it with a view to ascertaining the amount due to the deceased in respect thereof. He also directed that the amount so ascertained should be payable by defendant No. 1 with interest at six per cent. to the plaintiff, It is contended that this virtually joins a partnership suit on to an administration suit. It is also contended that Ratansi's heirs are necessary parties to the suit. The question of misjoinder can best be first dealt with, because if there is such misjoinder the question of non-joinder does not arise.

(3.) In defendant No. 1's written statement the only objection on the score of misjoinder is that contained in paragraph 17, where it is said, "The plaintiff's suit relates to the immoveable property and in it is joined the relief of taking partnership accounts under Rule 4, Order II, of the Civil Procedure Code; such a suit is not maintainable in this form." Objections were also taken in the written statement that the claim relating to the partnership business was time-barred and that the suit was bad for non-joinder, as Ratansi was a necessary party. Issues were raised in regard to the two latter objections, viz., Nos. 6 and 7, and they have been decided against defendant No. 1. But no issue was raised on this question of misjoinder. In these circumstances, I think that the objection of misjoinder was clearly not pressed, and that under Order II, Rule 7, it must be deemed to have been waived. Even before the enactment of Order II, Rule 7, it was held to be a general rule that, if an objection on the ground of misjoinder of causes were pressed and carried to a decision in the first Court, the High Court would, even upon special appeal, upon its being shown to be well founded, give the objector the benefit of it; but if it was not pressed and carried to a decision in the first Court, and if the parties went to trial as if the objection had not been made, then the objection would not he given effect to at a later stage, unless it appeared clearly that there was a defect in the original trial in consequence of misjoinder : Tarinee Churn Ghose V/s. Hunsman Jha (1873) 20 W.R. 240. In the present case there was a reason for the ground of misjoinder not being pressed, because it was inconsistent with the objection about the non-joinder of Ratansi; and the pleader of defendant No. 1 may have accordingly confined his objection to one of non-joinder. I do not, therefore, think that the appellant can claim to agitate this objection in appeal. But, in any case, after hearing what Mr. Divatia has urged in support of it, I do not think there is any substance in the objection. He relied upon Order II, Rule 4, Civil Procedure Code, as was done in paragraph 18 of defendant No. 1's written statement. But that rule, in my opinion, clearly does not support the objection, because the case is one where the claim to a relief in regard to the partnership business is based on the same cause of action as that on which is based a claim for the recovery of immoveable property. The basis of the plaintiff's case in both cases is title and refusal to deliver up the property on demand. An administration suit almost necessarily covers both immoveable and moveable property of the estate of the deceased; and the form of a preliminary decree in such a suit, No. 17 in App. D of the Civil Procedure Code, covers both descriptions of property. Even before Clause (a) of this Rule 4 was enacted, it was held under the corresponding Section 44 of the Code of 1882 that leave was entirely unnecessary in an administration in a case of this kind: Nistarini Dassi v. Nundo Lall Bose (1899) I.L.R. 26 Cal. 891, 922. There the case of Pointon v. Pointon (1871) L.R. 12 Eq. 547 is cited and followed.