1. It appears to us that the suit is bad for misjoinder.
2. The first plaintiff’ claims as one of the widows of Maria Gurusami and the second plaintiff as having been validly adopted by the first plaintiff after Mana Gurusarni’s death. The claim of the first plaintiff assumes that there is no adoption; the claim of the second plaintiff assumes that first plaintiff has no right, because there was an adoption.
3. Section 45 of the Code of Civil Procedure permits of the joinder in the same suit of several causes of action in which several plaintiffs are jointly interested against the same defendant. These plaintiffs are jointly interested against the same defendant in the sense that it is the object of both plaintiffs to show a title in one or other of them to the whole or a portion of the estate in competition with the defendant; but this is not enough; they must each be jointly interested with the other in the several causes of action not necessarily equally interested, but jointly interested; i.e., as we understand, not jointly interested as a mere matter of affection, but jointly interested as to the subject-matter of the suit which the causes of action have in contemplation. Now the cause of action in the case of the first plaintiff’ aims at the establishment of the title of the first plaintiff as issueless widow of Mana Gurusami to succeed him jointly with the other widows, whereas the cause of action in the case of second plaintiff aims at the establishment of the title of second plaintiff by reason of the adoption to take the estate of Mana Gurusami to the exclusion of all others. It cannot be said that the two plaintiff’s are jointly interested in these inconsistent causes of action. The establishment of first plaintiff’s title would exclude second plaintiff’ from all right to take or share in the estate, and the establishment of second plaintiff’s title would equally debar first plaintiff from any share in the estate, but a right to be maintained out of it-a right which is not brought in contest.
4. Section 26 was referred to as authorizing a suit framed as this is. That section runs-“All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist whether jointly, severally, or in the alternative, in respect of the same cause of action.” As the causes of action are essentially distinct in this suit, this section cannot authorize a suit of this character.
5. This section is taken from Order 16 on Rule 1 of the Judicature Act in England and corresponds with it, except as to the words “in respect of the same cause of action” which are added in our Code, but the constructions of this section of the English Procedure Code appear to proceed upon the footing that there must be the same cause of action.
6. In Booth v. Briscoe L.R. 2 Q.B.D. 496 eight persons were libeled. It was held that they or any of them might jointly sue. Bramwell, J., in that case, is reported to have said that they had eight separate causes of action. But probably what was meant was, that each had a separate right of action arising out of one and the same cause of action. Under the Judicature Act in England, great difficulty appears to be felt in working Rules 1 and 3 of Order 16 in which there are no such qualifying words as appear in Section 26 of the Code of Civil Procedure “in respect of the same cause of action,” and it is suggested in Cunningham and Matheson’s Precedents of Pleading that some such words as “in respect to a particular subject-matter” require to be supplied. If these or corresponding words stood in place of “in respect of the same causes of action” in Section 26, we are not prepared to say that the present suit would be bad for misjoinder, but, looking to the language of Section 26 and that of the latter part of Section 45, as they stand, it appears to us that the Cods does not authorize the joining of plaintiffs in a suit in respect of distinct causes of action, in which they are not jointly interested and their interests are not merely conflicting but antagonistic. The words “in the alternative” apply to cases in which there is a doubt as to who is the person entitled to sue upon the cause of action as in the case cited in the work already quoted, as an illustration, viz., that of a sale to an agent in which there may arise a difficulty as to whether the principal or the agent should sue; or to cases where parties have different and conflicting interests in the same subject-matter, and an act is committed which gives the same cause of action to either party according to the eventual determination of the Court as to which of the two is entitled to recover, as in the case referred to at page 569 of the same work, in which the plaintiffs were respectively a receiver appointed to take possession of a certain colliery business and to manage the same and other persons who were executors of the last Will and testament of Haines-and equitable mortgagee of the colliery. They sued for £5,000 damages for a wrongful levy of execution against the colliery by the Sheriff, which was a trespass giving rise to a right of action in which the plaintiffs were severally or, at all events, alternatively interested.
7. On the ground that the present suit was bad for misjoinder, we proposed to reverse the decree of the Subordinate Judge and direct that the plaint be returned for amendment-a course which we considered we might take in appeal, as it was one which the Subordinate Judge ought to have taken.
8. Some discussion then arose as to the power of the Court to make such a decree.
9. We were referred to Farzand Ali v. Yusuf Ali I.L.R. 2 All. 669 which, in the circumstances, was similar to this suit. The learned Judges in that case were of opinion that the Code of Civil Procedure did not admit of their remanding the suit for the return of the plaint for amendment.
10. Mr. Bhashyam Ayyangar maintains the correctness of this view.
11. Section 564 says, “the Appellate Court shall not remand a case for a second decision except as provided in Section 562,” and admittedly there is no case for remanding the suit under Section 562, since that section only authorises a remand when the Lower Court has disposed of the suit on a preliminary point so as to exclude any evidence of fact which appears to the Appellate Court essential to the determination of the rights of the parties and the decree upon such preliminary point has been reversed in appeal. In the present case, the decision of the Lower Court has not involved the exclusion of evidence essential to the determination of the rights of the parties, so that the remand could not be made under Section 562.
12. Mr. Shephard, however, contends that the remand is not a remand for a second decision but a remand for the purpose of requiring the Lower Court to take a step which it ought to have taken in the very threshold of the suit. The Lower Court’s duty was simply to return the plaint. After the plaint has been returned, it will be discretionary with the plaintiff to continue the suit or not.
13. We think there is no objection to our making the decree proposed. Our decision rests on the ground that, when causes of action are misjoined, and the Court of First Instance enters on the merits on the erroneous view that there is no misjoinder, the Appellate Court should dispose of the suit in the mode in which the Lower Court ought to have disposed of it, if it had held, as it ought to have held, that there was a misjoinder. This seems to be the natural mode of correcting an error in appeal, and Section 53 prescribes the procedure which the Lower Court would have pursued if it had dealt with the question before settling issues as to the merits. The section which directs that no amendment be allowed after the first hearing does not, we consider, preclude the Appellate Court from directing the Original Court to make the order which it ought to have made at or before the first hearing.
14. We shall, therefore, reverse the decree of the Subordinate Judge and direct that the plaint be returned for amendment.
15. Defendants will have the costs throughout.