Fraudulent misrepresentation tied to contract requires joinder of necessary parties and cannot be sustained by one plaintiff alone.

A claim for fraudulent misrepresentation concerning a sale transaction was treated as a wrong arising out of contract because liability could not be established without relying on the contractual dealing itself; the plaintiff alone was therefore not competent to maintain the suit. The objection of non-joinder of the plaintiff's brother was taken in time and was not waived, since it was raised before the fresh issues were settled. A subsequent partition did not transfer the separate right to sue for the earlier deceit, and a mere right to sue is not transferable. Refusal to implead the brother after limitation was valid, so the suit failed and the decree below was affirmed.

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Issues: (i) whether the suit for fraudulent misrepresentation was an action of pure tort or a wrong arising out of contract; (ii) whether the objection of non-joinder of the plaintiff's brother was waived or otherwise barred; (iii) whether the plaintiff could rely on the partition to claim the entire right to sue; (iv) whether the refusal to implead the brother after limitation justified dismissal of the suit.

Issue (i): whether the suit for fraudulent misrepresentation was an action of pure tort or a wrong arising out of contract.

Analysis: A wrong is treated as arising out of contract where the plaintiff must rely on the contract to establish liability and cannot found the claim independently of it. Where the alleged deceit concerns the sale transaction itself and the measure of damages is based on what was paid under that transaction, the cause of action is not independent of contract. As between joint promisees, performance must ordinarily be claimed jointly, and the claim cannot be sustained by one alone where the contractual relation defines the liability.

Conclusion: The suit was not one of pure tort, but a wrong arising out of contract, and therefore the plaintiff alone was not competent to maintain it.

Issue (ii): whether the objection of non-joinder of the plaintiff's brother was waived or otherwise barred.

Analysis: An objection to non-joinder must be taken at the earliest possible opportunity and, where issues are settled, at or before such settlement. Here, the objection was raised when the third defendant filed an additional written statement after obtaining leave, and it was raised before the fresh issues were settled. Any earlier omission by a guardian of a minor defendant did not bind the minor so as to deprive him of the right to raise the objection later.

Conclusion: The objection was taken in time and was not waived.

Issue (iii): whether the plaintiff could rely on the partition to claim the entire right to sue.

Analysis: The subsequent partition transferred property, not the independent right to sue for damages for the earlier deceit. A mere right to sue cannot be transferred, and the claim did not rest on any covenant running with the land.

Conclusion: The partition did not vest in the plaintiff alone the right to maintain the suit for the entire claim.

Issue (iv): whether the refusal to implead the brother after limitation justified dismissal of the suit.

Analysis: Under the Limitation Act, when a necessary party is added after limitation, the addition is treated as the date of institution as against that party, and the defect is not cured. Since the suit was imperfectly constituted and the brother's claim was already time-barred, adding him would not have saved the suit. The refusal to implead him was therefore in substance correct.

Conclusion: The refusal to implead the brother after limitation was valid, and the suit was liable to fail.

Final Conclusion: The decree of the court below was affirmed and the appeal failed in its entirety.

Ratio Decidendi: Where a claim for deceit depends on the contractual transaction itself and the plaintiff cannot establish liability without relying on that contract, the action is one arising out of contract, so all necessary parties must be joined in time or the suit is liable to dismissal.

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