JUDGMENT
We are asked to revise an order directing the plaintiff-petitioner to elect whether he will proceed with one or the other of the two causes of action joined in his plaint on pain, in case he fails to do so, of his suit being dismissed.
The question whether use of our revisional powers is authorized by Sect. 115 of the Civil Procedure Code in such a case is concluded in petitioner's favour by the course of authority in this Court. Vide Sitaramayya v. Ramappaya, Vaithilingam v. Ramalingam Pillai, and Shanmukha Nadan v. Arunachalam Chetti, to mention only the more recent decisions.
On the merits, plaintiff's case is shortly that Arunachalam, his father, was defendant's partner, the terms of the partnership having been varied from time to time. On Arunachalam's death plaintiff obtained letters of administration for his estate. He had also, however, been acknowledged by 1st defendant as his partner. This acknowledgment is no doubt referred to in the plaint, as though it made plaintiff a partner with first defendant, not in any firm constituted by it, but in the previously existing partnership between 1st defendant and Arunachalam, which, on the only correct view of the law, had been terminated by the latter's death. That unsound pleading however cannot affect the nature of the relief asked for by the plaintiff, as it is stated in the prayer portion of his plaint with reasonable clearness. He asked for dissolution of the partnership between himself and 1st defendant, for an account of the transactions during the existence of Arunachalam's interest and his own and for a decree for the amount found due, that is for two accounts one for the transactions of the partnership or partnerships between Arunachalam and 1st defendant to which he is entitled as administrator of the former's estate, another for the transactions of the partnership of which he also claims the dissolution between himself and 1st defendant to which he is personally entitled.
The lower Court held that this joinder of claims offended against O. 2, R. 5 of the Civil Procedure Code. Contra it is argued that (1) the rule is not applicable where the executor or administrator in question is also, as plaintiff beneficially entitled to the estate. (2) the present case comes within the exception specified in the rule, as plaintiff's personal claim “ arises with reference to the estate, in respect of which” he is suing as administrator. We offer no opinion on the first of these contentions, because, we accept the second. The words “ arise with reference to” are very general; in our opinion, sufficiently so, to cover a claim which like the personal claim of plaintiff, can be calculated only after one essential element in the calculation, the amount due to him as administrator from the assests of Arunachalam's firm or firms and retained, by way of loan or otherwise, in the subsequent firm, has been ascertained. In the absence of distinct authority we see no reason for reading the expression “arise with reference to” as first defendant suggests, as equivalent only to “arise against or on behalf of.” In Tredegar (Lord) v. Roberts, the object of the similarly worded English O. 18, R. 5 was defined as “to prevent an administrator from intermingling the assets of his testator with his own moneys.” But there the main rule, not the exception with which we are concerned, was under construction, and it is not shown how the mischief thus referred to is to be apprehended more distinctly in the present case than in others, which that exception may cover. In fact, if there is here any conflict or chance of confusion between plaintiff's interests as an administrator and in his personal capacity, the risk of such conflict will be as great, whether he brings one suit or two; and if (as would be convenient and proper) the two suits were tried together, the difference between the accounts to be taken in them and in the suit as at present framed would be merely formal.
In these circumstances we allow the petition, set aside the lower Courts’ order and direct it to proceed with the trial of the suit according to law. Costs to date in this and the lower Court will be costs in the cause and will be provided for in the decree to be passed.
S. S.Petition allowed.