120-NLR-NLR-V-51-THANGAMMAH-et-al-Appellants-and-KANAGASABAI-et-al-Respondents.pdf
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Thangammah v. Kanagasahai
1949Present: Nagallngam J. and Windham J.THANGAMMAH et al.. Appellants, andKANAGASABA1 et al., Respondents
S.C. 471—D. C. Jaffna, 1,105
Misjoinder—Parties and causes of action—-Right of pre-emption—Separatesales by co-owners— Right to purchase—One cause of action—Joinderof plaintiffs—Civ# Procedure Code-Section 11.
Plaintiffs who were each entitled to £ share of a land brought an actionfor pre-emption of the other half which belonged to two sets of defendants,viz., the first and socond defendants who by 8D1 transferred to the eighthdefendant and the third to the sixth defendant who by 8D2 also trans-ferred to the eighth defendant. On an objection that there was amisjoinder of parties and onuses of action.
Held, that the plaintiffs’cause of action was not the execution of deeds$D1 and 8D2 but the violation of tho plaintiffs’ right to purchase thenutstanding half-sbaro and that there was no misjoinder.
Held further, that the right of pre-emption is based on an impliedcontraot whereby oo-owners are jointly bound to one another. Theplaintiffs were therefore joint contractors and entitled to join in oneaction undor section 11 of the Civil Procodure Code.
» {1904) 7 N. L. K. 182.
{1918) 24 N. Z-, R. 15.
NAGALINGAM J.—Thangammah t>. Kanagasabai
501
^.PPEAL from a judgment of the District Court, Jaffna.
F. A. Sayley, K.C., with B. W. Tambiah, for plaintiffs appellants.
C. CheUappak, for 2nd defendant respondent.
H. V. Perera, K.C., with C. Vanniasingham, for 7th and 8th defendantsrespondents.
nnr, adv. vult.
April 12,1949. Nagalingam J.—
This appeal raises a question with regard to joinder of parties and causesof action. The plaintiffs claiming to be the owners of an undividedl share of the lands described in the schedule to the plaint instituted thisaction against eight defendants for a declaration that they are entitled topre-empt the remaining £ share which they allege has been purchasedby the 8th defendant in violation of the right conferred on them by theThesawalamai. The title to the remaining half-share, according to theplaintiffs, is claimed by two sets of defendants: the 1st and 2nd defendantson 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 ofthese two sets of defendants. It is sufficient, however, to say that bydeed 8D2 of November 21,1943, the 3rd, 4th, 5th and 6th defendantstransferred to the 8th defendant, the wife of the 7th defendant, the half-sharo claimed by them. On the following day, namely, November22, 1943, by deed 81)1 the 1st and 2nd defendants purported toconvey their half-share also to the 8th defendant. The plaintiffs allegethat both the deeds 8D2 and SDl were executed without notice to themand without their being given an opportunity of exercising their right ofpre-emption as co-owners of the lands. On a plea taken on behalf of thedefendants that there was a misjoinder of parties and of causes of action,the action has been dismissed. The argument has been advanced, andthat argument apparently found favour with the learned District Judge,that the cause of action against the 3rd, 4th, 5th, 6tb and 8th defendantswas one that arose from the execution of the deed 8D2 and that it wasdistinct from the cause of action against the 1st, 2nd and 8th defendants,which arose as a result of the exocution.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. Theplaintiffs contend that there is only one cause of action against all thedefendants. The learned Judge, although he himself referred to thedefinition of the term cause of action, has in the course of the discussionof the case fallen into the error of regarding the cause of action assertedby the plaintiffs as a wrong in the sense of a tort.
The term cause of action is defined in section 5 of the Civil ProcedureCode as the vrong for the prevention or redress of which an action maybe brought, and includes the denial of a right, the refusal to fulfil anobligation, the negligence to perform a duty and the infliction of anaffirmative injury. I may say at once that the word “ wrong ” used in
502NAGAI.INGAM J.—Thangammah v. Kanagasabai
-this definition is not used in the narrow sense of a tort but in a muchwider sense as embracing the infringement or violation of every and allmanner of right to which a person would be entitled as a member ofhuman society.
Now, what is the cause of action in respect of an action for pre-emption ?Is it the execution of a deed by a co-owner conveying his rights to astranger, that is to say, one not entitled to the right of pre-emption ?Or does it consist in the non-affording to the co-owner entitled to theright of pre-emption of an opportunity of purchasing the interest sold tothe stranger ? It is true, however, to say that the fact of sale by theco-owner to a stranger must be alleged and proved as one of the mediabefore relief can bo claimed. But I do not think that the execution ofthe deed is the cause of action or the “ wrong ” to redress which the pre-emptor brings the action. Tako the case of a person who has no vestigeof title to any interests in the land assuming the role of a co-owner andselling his alleged interests to a stranger. The execution of that deedcannot be said to give rise to a cause of action to any of the admittedco-owners of the land, for thoir rights are in no way violated. It there-fore cannot be said that the bare execution of the deed by itself constitutesthe cause of action. It is easy to fall into the error, at least in this classof cases, of thinking that the cause of action results from the objectiveact of the execution of the deed rather than from the violation of thesubjective right of the co-owner entitled to pre-empt. The cause ofaotion must havo reference to the individual whose rights arc violatedand have no reference to acts objectively as such.
The case of London and Lancashire Fire Insurance Co. v. The P. <fr O. Co.and the Ceylon Wharfage Co.1 is a useful one to look at in this connection.There were two causes of action set out in the case, one In tort, the otherbased on contract, the former of which alone is of interest for the purposeof the point under discussion. There, certain bags of sugar were lost asa result of a collision between the barge belonging to the 2nd defendantcompany and a steamer belonging to the 1st defendant company. TheDistrict Judge took the view that there were distinct causes of action,one against the steamship company and the other against the lighteragecompany on the footing that the negligence of the servants of the 1st-defendant company was the cause of action against it and the negligenceof the servant* tho 2nd defendant company was another distinct causeof action against tho 2nd defendant company ; the District Judge furtherspecifically held that the loss sustained by the consignee whom theplaintiff represented was not the cause of action. On appeal, however,there was unanimity of view that the District Judge’s reasoning wasfallacious in this regard and de Sampayo J. expressly held that the causeof action was the loss of the goods. It will thus be seen that the cause ofaction was not objectively looked at from the point of view of the actsof the defendants but rather from that of the loss or injury sustained bythe plaintiff.
If one bears this reasoning in mind, it will be plain to see that it is notthe execution of the deeds that constituted tho cause of aotion but the1 {1914) 18 N. L. H. 1.',.
503
N'AGALINGAM J.—Thangammah v. Kanaganabdi
-violation of rights suffered by the plaintiffs resulting, no doubt, from theexecution of the deeds. Now, what are the plaintiff’s rights which havebeen violated ? The plaintiff’s case is that there is only one half-sharethat is outstanding and not that there are two half-shares, and their causeof action is that they have been deprived of their right to purchase theoutstanding half-share. If that half-share is treated as an entity byitself, it is clear that the sales by rival claimants of that half-share bytwo separate deeds on separate dates do not give rise to two separatecauses of action, for their acts do not result in the deprivation of theplaintiffs’ right to acquire two separate half-sbares but only of the one
half.Rhare. The cause of action, therefore, against both sets of defendants
is one. The uu>v
TOiild have been different had, for instance,
the co-owners purported to deal with separate and distinct snares in thelands, as for instance, if one sot of co-owners dealt with a £ share whichwas distinct from another £ share owned by the other set of owners.Nor does the fact that the plaintiffs claim the relief in the alternative
against the two sets of defendants mean that they have separate causesof action against the two sets of defendants; their cause of action againstboth sets of defendants is, however, one. In truth, there cannot becauses of action in the alternative, it is only the relief or the remedy thatcan be claimed in the alternative. See the case of Fernando v. Fernando1.
The remedy the plaintiffs seek is the enforcement of their right topurchase the outstanding half-share either Against the 1st, 2nd and 8thdefendants or alternatively against the 3rd, 4th, 5th, 6th and 8thdefendants, according as the Court should find which group of defendantshas the title to the outstanding half-share. It has been contended that theplaintiffs must decide which group of defendants they would sue but notthrow the responsibility on the Court. This is an argument which, itwill be obvious, is one which can be urged in every case a claim is preferredin the alternative against two or more defendants.
It is to meet the difficulty which a plaintiff may experience in decidingwhich of two or more defendants is liable that provision has been madepermitting a suit to be instituted in the alternative. The plaintiffs averthat tho title to the remaining half-share is vested either in the 1st and2nd defondants or alternatively in the 3rd, 4th, 5th and 6th defendants,but that they are unable to sav which set of defendants has the legal title.They claim the relief not against both sets of defendants but against oneset only, against the set of defendants in whom the Court should find thetitle is truly vested.
A separate action against each group of defendants would not only notlie but would be disastrous to the plaintiffs. The action against one setof defendants can only be instituted on the footing that that group notonly has, but that the plaintiffs themselves admit that that group hastho legal title to the outstanding half-share and that the plaintiff isprepared to make purchase of that half-share. Similar averments mustform the basis of the action against the other set of defendants. If thedefendants in eaoh case consent to judgment, the plaintiffs would as aresult of their having filed two actions find themselves in the inevitable
‘ {1937) 39 S’. L. R. US.
504
NAGALINGAM J—Thangammah v- Kanaga&abai
predicament of having to buy the remaining half share of the land bypaying the value of the half-share twice over to each set of defendants.Furthermore, any one set of defendants, where two actions have beenfiled, may be able to contend not unsuccessfully that inasmuch as theplaintiffs themselves recognise and admit the existence of the title of thetwo half-shares in the two sets of defendants in the two cases, therebyaccounting for the whole of the title to the entirety of the land in thirdparties, the plaintiffs must necessarily therefore be deemed to be noco-owners and consequently disentitled to assert any claim to pre-empt.
It seems to me theroforo that there can be no objection in law to thejoinder of all the defendants in one action.
The next point for consideration is whether the action is bad by reasonof the joinder of the two plaintiffs. It is said that as each of the plaintiffsis entitled to a £ share, each has a separate cause of action. Section 11of the Civil Procedure Code expressly permits all persons to be joined asplaintiffs in whom the right to any relief is alleged to exist, whetherjointly, severally or in the alternative in respect of the same cause ofaction. Several plaintiffs, therefore, in whom the right to relief existsjointly or severally can unite in the same action, so that it is immaterialto consider whether the plaintiffs are entitled to the rolief they soekjointly or severally, for in cither case a joinder is permissible. The pointto be ascertained, however, is whether the relief claimed by the severalplaintiffs is in rospect of the same cause of action. This leads one to aconsideration of the nature of the rights of co-owners inter se in regard tothe right of pre-emption.
The right of pre-emption is one that is conferred by law upon co-ownersand must be deemed to bo based upon an implied contract whereby theco-owners are jointly bound one to another, and the co-owners in this viewof the matter become joint contractors in regard to the enforcement ofthis obligation. If the contract is joint, then there can be no objectionto several joint contractors instituting a single action to enforce theirrights. See Sopia v. Navaratnam
For those reasons I am of opinion that the action is propcrlyconstitutcd.The order of the learned District Judgo is therefore set aside and the caseremittea w iow«*r tjouir itw trial of the issues other than the 10th,12th, 13th and 14th issues. The plaintim* wni u~. entitled toof
appeal and of the argument in the lower Court.
Windiiam J.—I agree.
U919) 1 C. 1-Rec. 36.
Appeal allowed.