MUSSAMUT AMIRAN AND OTHERS Vs. MUSSAMUT ASIHUN AND OTHERS
LAWS(CAL)-1869-6-6
HIGH COURT OF CALCUTTA
Decided on June 03,1869

MUSSAMUT AMIRAN AND OTHERS Appellant
VERSUS
MUSSAMUT ASIHUN AND OTHERS Respondents

JUDGEMENT

- (1.) This was a suit by the widow of Kadir Ali to have an adjudication as to her right of inheritance in her deceased husband's estate to the extent of 18 out of 96 sehans, into which the property of the deceased is stated to have bean divided according to the rules of Mahommedan law. There were two sets of defendants, the two other widows of the deceased Kadir Ali and his sons and other near relatives. The plaintiff further sued to have two deeds of bai-mukasas, or gifts in lieu of dower, held by the defendants Nos. 1 and 2 set aside on the ground that they were collusive and interfered with her getting possession of her share of the property. The widows were the only parties who defended the suit, the other relatives of Kadir Ali supported the plaintiff's case; these widows stood upon their deeds of bai-mukasas, and alleged that they had been in possession of the property covered by them from the dates of the deeds, and that the plaintiff had no right to dispossess them. The Court of first instance took up the issue of misjoinder and on that issue the Principal Sudder Ameen decided for the plaintiff, and then on the merits gave the plaintiff a decree for all that she sought. The Judge on appeal held that the suit was barred by section 8 of Act VIII of 1859, inasmuch as it mixed up different causes of action against different parties. Two grounds were taken before us in special appeal: first, that there was substantially no misjoinder; and second, that if there were, under section 350 of the Code of Civil Procedure the Judge ought not to have dismissed the plaintiff's case in the appeal stage upon what was a mere irregularity which did not affect the merits of the case or the jurisdiction of the Court.
(2.) With regard to the first objection it appears to me that the Judge was right. The plaintiff's claim to a share of her husband's property, namely 18 sehans, was not denied, nor was it denied that the estate of Kadir Ali was divided into 96 sehans; so far therefore nobody opposed her claim, and if, as her pleader now wishes to make out, this was her case, she had no cause of action; but it is evident that what she did want to have adjudicated (and what was also substantially her ground of appeal to this Court) was, whether or not the two deeds of gift in lieu of dower propounded by the defendants Nos. 1 and 2 were genuine and a sufficient bar to her getting possession of the property sued for. Now these deeds of gift are in favor of two separate persons, and as the Judge finds, for two different properties; the one was executed in the year 1842, and the other in the year 1847. It is contended by the special appellant that her cause of action was not the execution of these deeds of bai-mukasa, but the death of her husband, Kadir Ali; and that therefore it was a matter of absolute indifference to the decision of her case whether these two deeds were executed in favor of one person, or of more persons, or at one time, or at different times. It appears to me that the 8th section of the Code of Civil Procedure fully applies to a case of this description.
(3.) Granting for the sake of argument that the cause of action to the plaintiff herself was one, it is quite clear that the cause of action was not against the same parties, inasmuch as one of the defendants was one of the widows of Kadir Ali and the other another of those widows, and they both claimed under different deeds executed at different times for different properties. The law says that causes of action by and "against" the same parties and cognizable by the same Court, may be joined together in the same suit, but it cannot be inferred that it would be sufficient under the law that the different causes of action should be common to the plaintiff only, and not common against the defendants, and it seems impossible to argue that the causes of action of the plaintiff in this case were substantially against the same parties. The application of section 8 appears to me to have been very properly laid down in the case of Ramoona v. Manicko Moyee Chowdhrain 9 W.R. 525, and I quite concur in the view which was there taken by Justices Phear and Hob-house. With regard to the second point that supposing this to be a misjoinder, the Judge ought not to have decided the case on appeal, upon what after all was merely an irregularity, it appears to me that section 350 of Act VIII of 1859 has no application to the case; the words of that section are "that no decree shall be reversed or modified in appeal or a case remanded to the lower Court on account of any error, defect, or irregularity affecting the merits of the case or the jurisdiction of the Court." Now if the decision of the first Court on the question of misjoinder was a mere irregularity, then no doubt the words of the section would apply; but it appears to me to be something more than an irregularity, something in fact expressly forbidden by section 8 of the Code, and consequently an illegality instead of an irregularity. It cannot, I apprehend, be contended that the words of section 350 refer to irregularities such as are declared by other sections of Act VIII of 1859, to be absolute illegalities barring the hearing of a suit. We have been referred to the case of Shoroop Chunder Paul v. Mothoor Mohan Paul Chowdhry 4 W.R. 109, to show what the Judge ought to have done in a case of this description.;


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