Mt. Lajwanti and others vs Safa Chand, since deceased, and others

Lord Dunedin

This petition is pre sented under somewhat peculiar and unsatisfactory circumstances. In the recent appeal of Mt. Lajwanti, and others, judgment was pronounced in which their Lordships said that they would humbly advise His Majesty to allow the appeal and pronounce judgment in favour of the plaintiff. That by the expression "plaintiff," their Lordships designated Mt. Lajwanti alone without the addition of the other appellants, is made perfectly clear not only by the use of the singular and not the plural, but also by a sentence in the judgment in which their Lordships'' after narrating the claim and suit of the Mt. added, "Certain persons who might have been respondents, backed up the plaintiff and were added as plaintiffs, a very unnecessary proceeding, as no decree could pass in their favour." No represen tation was made to their Lordships as to there being any error in this.

On the judgment being presented to His Majesty in Council for embodiment in the formal order, the word "appellants" in the plural was used. The plaintiff and appel lant, Mt. Lajwanti, now presents this peti tion to have the order made rescinded and an order pronounced in favour of herself alone. Now in ordinary circumstances this petition would be granted as a matter of course. It is the duty of their Lord ships to see that the order which His Majesty makes in Council faithfully repre sents the advice which in the judgment they have said they would humbly tender to him.

But the petition is opposed by the other appellants. The Counsel who at the hear ing pleaded the ease of the Mt. now appears for these other appellants and points out that the Mt. herself in her original pleading had set forth that by arrangement between her and three other appellants she was to take only three-fifths of all she recovered, the other two-fifths going to them; and it is further alleged that the Mt. herself has not autho rised this petition. An affidavit is pre sented to that effect. It is met by counter affidavits.

Their Lordships disregard the affidavits on both sides. They are quite contradic tory and it is impossible to determine what the truth is.

Their Lordships have no doubt that the prayer of the petition must be granted in so far as it prays to have the Order in Council, made to conform to the judg ment pronounced. Even had the facts not brought forward been clearly set before their Lordships, it would not follow that the judgment would have been altered. It is out of the question that persons who assert that they have a derivative interest in the stake of a suit can, by getting added as plaintiffs, be associated in a decree in favour of the person who has the only real title. The respondents have an interest in this as well as the plaintiff. At least it is safe to say that no decree would have been granted in favour of all the appellants jointly unless there had either been a con sent signified by the respondents or a legal conveyance or assignment, produced by the real plaintiff of a share of the subjects of the suit.

At the same time their Lordships wish to do justice and not to allow anyone to take advantage of a slip in order to ap propriate to himself property that is not fairly his. Their Lordships will therefore humbly advise His Majesty to rescind the order complained of and to pronounce judgment in favour of the plaintiff Mt. Lajwanti alone, but with the addition that this judgment is to be without prejudice to the appellants other than Lajwanti to recover, in respect of any conveyance or assignment made or of any contract to convey or assign, such share of the pro perty recovered under the judgment as may appertain to them in respect of such conveyance, assignment or contract.

As their Lordships think that both parties were in fault, there will be no costs of the petition.