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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 authorised by Section 115 of the CPC in such a case is concluded in petitioner''s favour by
the course of authority in this Court vide, Sitaramaya v. Ramappaya (1916) 5 L.W. 207, Vaithilingam v. Ramalingam Pillai (1917) 6 L.W. 9, and
Shanmuka Nadan v. Arunachelam Chetti 45 M. 194 , to mention only the more recent decisions.
On the merits plaintiff''s case is shortly that Arunachalam, his father, was 1st 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
first defendant as his partner, This acknowledgment is no doubt referred 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 first defendant and Arunachalam which on the only correct view of the
law had been terminated by the hitter''s death. That unsound, pleading however cannot affect the nature of the relief asked for by 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 first 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 Araunachalam and first 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 Order 2 Rule 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 is, 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 calculations the amount due to him as administrator from the assets 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 ""arises against or on behalf of"". In Tredegar v. Roberts (1914) 1 K.B. 28 the object of the similarly
worded English Order XVIII Rule 5 was defined as ""to prevent an administrator from intermingling the assets of his testator with his own moneys.
Hut 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 interest 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 Court''s
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.