Full Judgment
Pigot, J.
1. This is an appeal against a remand order of Mr. Beveridge dated the 30th July 1884.
2. The circumstances out of which this case has arisen are these: Munshi Oliullah sued Bechu Lal for land, claiming it as endowed property and seeking to establish his right thereto as mutwalli.
3. The defendant raised several objections : and among them he stated that al the mutwallis should be made parties to the cause. This seems to have beer the view taken by the Munsiff, who, on the 6th day of April 1883, passed the following order: ' I order the heirs of Nezatullah, Sadut Hosein, and Budhr 'Khan to be made plaintiffs in this suit, provided, on receiving notice of 'this order, they consent to be made parties.'
4. Against this order, an appeal was preferred to the District Judge, but without success, the order being confirmed. Subsequently, on the 29th September 1883, the plaintiff applied that those persons, who did not consent to be made plaintiffs in the cause, should be made defendants in the suit. This was refused: and the suit was dismissed on the ground that it could not proceed at the instance of the plaintiff alone.
5. An appeal was preferred to Mr. Beveridge, and he held that the suit could be carried on by the plaintiff alone, reversed the decree of the Munsiff, and remanded the case to be tried on the merits.
6. That order has given rise to the appeal before us.
7. The first point for our decision is, what was the effect of the order of the 6th April 1883?
8. I am of opinion that it simply directed the parties to be made plaintiffs with their consent, but it never prohibited further application, such as one made on the 29th September 1883, to have them made defendants in case the> did not consent to be made plaintiffs.
9. As to the opinion expressed by Mr. Beveridge, that the plaintiff can carrj on the case by himself, we are of opinion that that is not correct. Looking at the case of Luke v. South Kensington Hotel Company L.R. 11 Ch. D. 121 the case of Rajendronath Butt v. Shaik Mahomed Lat L.R. 8 I.A. 135 and other cases, we think, that in such a suit as this, all the mutwallis should, if possible, be made plaintiffs; but if any of them refused, then they should be made defendants in the ease. In this view we consider the decision of Mr. Beveridge should be set aside, and the case remanded with instructions that the non-consenting persons be made defendants in the cause if the plaintiff applies that they be made defendants, and the case be proceeded with. Costs to abide the result.