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Civil Procedure-Addition of parties-Declaratory suit-Claim of status as married wife Admission by husband-Right of wife and son denying plaintiff’s claim, to be added as Parties- Mohammedan law-Code of Civil Procedure (Act V of 1908), O. I, r 10(2)-Specific Relief Act (1 of 1877), ss. 42, 43. = The appellant instituted a suit against the third respondent, inter alia, for a declaration that she was his lawfully married wife, alleging that though the fact of her marriage was known to all who knew him, he was trying to suppress the facts in such a way that the members of his family should conclude that she was not his Nikah wife, that he refused to openly acknowledge her as his legally wedded wife and that this conduct on his part had cast a cloud on her status as such wife and was affecting the rights of the issue of the marriage, her three daughters. The third respondent filed his written statement admitting the claim, but on the same date respondents i and 2 made an application under 0. i, r. 10(2), of the Code of Civil Procedure for being impleaded in the suit as defendants on the grounds that they were respectively the wife and son of the third respondent, that they were interested in denying the appellant’s status as wife and the status of her children is the legitimate children of the third respondent, that the suit was the result of a collusion between the appellant and the third respondent and that if the appellant was declared to be lawfully wedded to the third respondent, the rights and interests of respondents i and 2 in the estate of the third respondent would be affected. The application was contested by both the appellant and the third respondent. The trial court allowed the application and the order was confirmed by the High Court in its revisional jurisdiction. The question was whether the lower courts did not exceed their powers in directing the addition of respondents i and 2 as parties-defendants in the action : Held (per Sinha and Kapur jj. Imam J., disscenting), that in view of the averments in the plaint which showed that not only the third respondent but the other members of his family, including respondents i and 2, were interested in denying the appellant’s status as a legally wedded wife, respondents i and 2 were proper parties to the suit. The question of addition of parties under O. I, r. 10, of the Code of Civil Procedure is generally not one of initial Jurisdiction of the court, but of a judicial discretion ; in a suit for a declaration as regards status or a legal character under S. 42 Of 1112 the Specific Relief Act, the rule that in order that a person may be added as a party he must have a present or direct interest in the subject-matter of the suit, is not wholly applicable, and the rule may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission. A declaratory judgment in respect of a disputed status will be binding not only upon the parties actually before the court but also upon persons claiming through them respectively, within the meaning of s. 43 Of the Specific Relief Act. The word ” respectively ” in the section has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. Per Imam J.-The facts of the present case do not justify the addition of respondents i and 2 as defendants under the provisions of 0. i, r. 1O(2), of the Code of Civil Procedure, because..:- (1)There is nothing in the pleadings to suggest that respondents 1and 2 were denying the appellant’s status as wife of the third respondent, and the court ought not to compel the plaintiff to add parties to the suit where on the face of the pleadings plaintiff has no cause of action against them. (2)Under the Mohammedan law a man is entitled to have four wives at one and the same time and, consequently, as the third respondent has admitted that the appellant was married to him, respondents i and 2 have no locus standi to make any representation in the suit that there was collusion between the appellant and the third respondent. (3)During the lifetime of the third respondent neither the appellant nor her children on the one hand nor respondents i and 2 on the other have any rights in his estate, under the Mohammedan law. (4)Assuming that a declaration in the suit would be binding upon respondents i and 2, which is doubtful having regard to the terms of S. 43 of the Specific Relief Act, that would be no justification for their being impleaded in the suit where the issue is not one of inheritance but one of marriage between the appellant and the third respondent. =1958 AIR 886, 1959SCR1111, , ,

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PETITIONER:

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RAZIA BEGUM

Vs.

RESPONDENT:
SAHEBZADI ANWAR BEGUM & OTHERS

DATE OF JUDGMENT:
23/05/1958

BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
KAPUR, J.L.

CITATION:
1958 AIR 886 1959 SCR 1111
ACT:
Civil Procedure-Addition of parties-Declaratory suit-Claim
of status as married wife Admission by husband-Right of wife
and son denying plaintiff’s claim, to be added as Parties-
Mohammedan law-Code of Civil Procedure (Act V of 1908), O.
I, r 10(2)-Specific Relief Act (1 of 1877), ss. 42, 43.

HEADNOTE:
The appellant instituted a suit against the third
respondent, inter alia, for a declaration that she was his
lawfully married wife, alleging that though the fact of her
marriage was known to all who knew him, he was trying to
suppress the facts in such a way that the members of his
family should conclude that she was not his Nikah wife, that
he refused to openly acknowledge her as his legally wedded
wife and that this conduct on his part had cast a cloud on
her status as such wife and was affecting the rights of the
issue of the marriage, her three daughters. The third
respondent filed his written statement admitting the claim,
but on the same date respondents i and 2 made an application
under 0. i, r. 10(2), of the Code of Civil Procedure for
being impleaded in the suit as defendants on the grounds
that they were respectively the wife and son of the third
respondent, that they were interested in denying the
appellant’s status as wife and the status of her children is
the legitimate children of the third respondent, that the
suit was the result of a collusion between the appellant and
the third respondent and that if the appellant was declared
to be lawfully wedded to the third respondent, the rights
and interests of respondents i and 2 in the estate of the
third respondent would be affected. The application was
contested by both the appellant and the third respondent.
The trial court allowed the application and the order was
confirmed by the High Court in its revisional jurisdiction.
The question was whether the lower courts did not exceed
their powers in directing the addition of respondents i and
2 as parties-defendants in the action :
Held (per Sinha and Kapur jj. Imam J., disscenting), that
in view of the averments in the plaint which showed that not
only the third respondent but the other members of his
family, including respondents i and 2, were interested in
denying the appellant’s status as a legally wedded wife,
respondents i and 2 were proper parties to the suit.
The question of addition of parties under O. I, r. 10, of
the Code of Civil Procedure is generally not one of initial
Jurisdiction of the court, but of a judicial discretion ; in
a suit for a declaration as regards status or a legal
character under S. 42 Of
1112
the Specific Relief Act, the rule that in order that a
person may be added as a party he must have a present or
direct interest in the subject-matter of the suit, is not
wholly applicable, and the rule may be relaxed in a suitable
case where the court is of the opinion that by adding that
party it would be in a better position effectually and
completely to adjudicate upon the controversy. In such
suits the court is not bound to grant the declaration prayed
for, on a mere admission of the claim by the defendant, if
the court has reasons to insist upon clear proof, apart from
the admission.
A declaratory judgment in respect of a disputed status will
be binding not only upon the parties actually before the
court but also upon persons claiming through them
respectively, within the meaning of s. 43 Of the Specific
Relief Act. The word ” respectively ” in the section has
been used with a view to showing that the parties arrayed on
either side, are really claiming adversely to one another,
so far as the declaration is concerned.
Per Imam J.-The facts of the present case do not justify the
addition of respondents i and 2 as defendants under the
provisions of 0. i, r. 1O(2), of the Code of Civil
Procedure, because..:-
(1)There is nothing in the pleadings to suggest that
respondents 1and 2 were denying the appellant’s status as
wife of the third respondent, and the court ought not to
compel the plaintiff to add parties to the suit where on the
face of the pleadings plaintiff has no cause of action
against them.
(2)Under the Mohammedan law a man is entitled to have four
wives at one and the same time and, consequently, as the
third respondent has admitted that the appellant was married
to him, respondents i and 2 have no locus standi to make any
representation in the suit that there was collusion between
the appellant and the third respondent.
(3)During the lifetime of the third respondent neither the
appellant nor her children on the one hand nor respondents i
and 2 on the other have any rights in his estate, under the
Mohammedan law.
(4)Assuming that a declaration in the suit would be
binding upon respondents i and 2, which is doubtful having
regard to the terms of S. 43 of the Specific Relief Act,
that would be no justification for their being impleaded in
the suit where the issue is not one of inheritance but one
of marriage between the appellant and the third respondent.

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 695 of 1957.
Appeal by special leave from the judgment and order dated
September 17, 1957, of the Andhra
1113
Pradesh High Court in Civil Revision Petition No. 1112 of
1957 arising out of the order dated July 6, 1957, of the
Court of the Second Additional Judge, City Civil Court,
Hyderabad (Decan), made on the application under 0. 1, r.
10, (C. P. C. in Original Suit No. 43/1 of 1957.
M.C. Setalvad, Attorney-General for India, C. K.
Daphtary, Solicitor-General of India, H. N. Sanyal,
Additional Solicitor-General of India, N. C. Chatterjee,
Syed Mohasim, Akbar Ali Mosavi, H. J. Umrigar, 0. N.
Srivastava, J. B. Dadachanji, S. N. Andley, Rameshwar Nath
and P. L. Vohra, for the appellant.
Purshottam Tricumdas, Anwarull Pusha and G. Gopalakrishnan,
for respondent No. 1.
Sir Sultan Ahmed, A. Ramaswami Iyengr C. Chakravarthy, S.
Ranganathan and G. Gopalakrishan, for respondent No. 2.
G.S. Pathak, A. V. Viswanatha sastri, Mohd. Yunus
Saleem, Ghulam Ahmed Khan, Choudhary Akhtar Hussain, Shaukat
Hussain and Sardar Bahadur, for respondent No. 3.
1958. May 23. The judgment of B. P. Sinha and J. L. Kapur
JJ. was delivered by Sinha J. Jafer Imam J. delivered a
separate judgment.
SINHA J.-This appeal by special leave is directed against
the concurring judgments and orders of the courts below,
allowing the intervention of respondents I and 2 and adding
them as defendants 2 and 3 in the suit instituted by the
appellant against her alleged husband, now respondent 3, who
was the sole defendant in the suit as originally framed.
The main question in controversy in this appeal is the true
construction of sub-r. (2) of r. 10 of 0. 1 of the Code of
Civil Procedure, and its application to the facts of this
case which are given below:-
On April 12, 1957, the plaintiff-appellant in this Court-
instituted the suit out of which this appeal arises against
the third respondent who is the second son of His Exalted
Highness the Nizam of Hyderabad, and who will, hereinafter,
be referred to as the Prince.
1114
In the plaint she alleged that she is the lawfully married
wife of the Prince, the marriage ceremony (Nikah) having
been solemnized in accordance with the Shia Law by a Shia
Mujtahid on October 19, 1948. The plaintiff also averred
that the issue of the marriage were three daughters aged 8,
7 and 5 years; that the fact of the marriage was known to
all persons acquainted with the Prince; that there was a
prenuptial agreement, whereby the Prince agreed to pay Rs.
2,000 per month to the plaintiff as Kharch-e-pandan; that
the Prince stopped the payment of the allowance aforesaid of
Rs. 2,000 per month, since January, 1953, without any
reasons and in contravention of the said agreement. On
these allegations, she asked for the following two
declarations:-
(1)That the plaintiff be declared to be the legally-wedded
wife (Mankuha) of the defendant,
(2)That a decree be passed in favour of this plaintiff
against the defendant declaring her to be entitled to
receive from the defendant 1. G. Its. 2,000 per month as
Kharch-e-pandan.”
It may be noted that she did not make any claim for arrears
of the allowance aforesaid since the date the Prince is
alleged to have stopped payment of the same. Only ten days
later, on April 22, 1957, the Prince filed his written
statement, admitting the entire claim of the plaintiff for
the two declarations aforesaid. On that very date, an
application under 0. 1, r. 10, of the Code of Civil
Procedure, on behalf of (1) Saliebzadi Anwar Begum, and (2)
Prince Shahainat Ali Khan, minor, under the Guardianship of
his mother, the said Sahebzadi, was made. They are
respondents I and 2 respectively in this Court. The
Sahebzadi, respondent 1, claimed to be the ” lawful and
legally wedded wife” of the Prince, and respondent 2, the
son of the Prince by the first respondent. In their
petition they stated inter alia: ” The plaintiff herself has
stated in the plaint that the defendant is trying to
suppress the facts of his marriage with the plaintiff so
that the members of his family should conclude that the
plaintiff is not his Nikah wife, and the defendant is
interested in denying the rights and status of the
plaintiff.
1115
The petitioners on being joined as parties to the suit will
be equally interested in denying the marriage of the
plaintiff and her rights and status………. The peti-
tioners have reasons to believe that the above suit is a
result of collusion. The object and motive of the plaintiff
in instituting the above suit is to adversely affect the
relationship of the petitioners and the defendant and also
to deprive the rights and interests of the petitioners in
the defendant’s estate.” On June 15, 1957, the plaintiff
made an answer to the petition for intervention, filed by
respondents I and 2 aforesaid. She denied the right of the
interveners to be impleaded in that suit, and asserted that
the ” possibility of the rights of the petitioners being
infringed are very remote, contingent upon their or
plaintiff surviving the defendant or other circumstances
which may or may not arise.” She also founded her objection
on the ground that, having regard to the admission of the
defendant in his written statement, ” there is no serious
controversy in the suit.” She also added a number of legal
objections which need not be specifically noticed as they
have not been pressed in this Court. She further asserted
that the petitioners (meaning thereby, respondents I and 2)
are neither necessary nor proper parties to the suit. She
anticipated the ground most hotly contested in this Court,
by asserting that the ” judgment of this Hon’ble Court in
this suit will not be conclusive as against petitioners as
they allege collusion and they will not be prejudiced by not
being made parties.” She ends her statement by making the
following significant allegation:-
” The alleged collusion and motive attributed to the
plaintiff for instituting this suit are denied. On the
other hand, the application to be added as defendants is
mala fide and malicious and is evidently inspired by some
strong force behind them interested in harassing the
plaintiff and exposing her to the risk of a vexatious and
protracted litigation.”
The Prince, in his own answer to the application for
intervention, stated that he admitted that the first
142
1116
respondent is his wife and that the second respondent is his
son, and repeated his admission by saying that lie married
the plaintiff in October, 1948, and the first respondent in
December 1952. He added further that when he married the
first respondent, he had already three daughters by the
plaintiff, which fact was known to the first respondent at
the time of her marriage with him. He supported the
plaintiff in her objection to the intervention by asserting
that the rights of respondents 1 and 2 will not be affected
in any way, and by insisting upon his Muslim right of having
four wives living at the same time. He also supported the
plaintiff in her denial of the allegation of collusion and ”
that the suit is intended to adversely affect the
relationship of the petitioners and the defendant respondent
and to deprive the rights and interests of the petitioners
in the defendant-respondent’s estate. ” He, in his turn,
added the following equally significant penultmate para:-
” That the petitioners’ application has been filed in order
to prolong the litigation and that the defen. dant-
responaent’s father His Exalted -Highness the -Nizam,
appears to be more interested than petitioner No. 1 herself,
in creating unnecessary complications in the suit. ”
On these allegations and counter allegations, after hearing
the parties, the trial court, by its judgment and order
dated July 6, 1957, allowed the application for
intervention, and directed respondents 1 and 2 to be added
as defendants. The court, after discussing all the
contentions raised on behalf of the parties, observed that
there were indications in the record of a possible collusion
between the plaintiff and the defendant; that the relief
claimed under s. 42 of the Specific Relief Act, being
discretionary, could not be granted as of right ; that the
presence of the interveners would help the court in
unravelling the mysteries of the litigation, and that there
was force in the contention put forward on behalf of the
interveners that under s. 43 of the Specific Relief Act, any
declaration given in favour of the plaintiff will be binding
upon the interveners. It also held that in order
effectually and completely to
1117
adjudicate upon and settle the present controversy, the
presence of the interveners was necessary.
The plaintiff moved the High Court of Judicature of Andhra
Pradesh, at Hyderabad, under s. 115 of the Code of Civil
Procedure, to revise the aforesaid order of the learned
trial judge. The High Court, in a wellconsidered judgment,
after discussing the points raised for and against the
addition of the parties, and noticing almost all the
authorities quoted before us, refused to interfere with the
discretion exercised by the trial court, and dismissed the
revisional application. It came to the conclusion that the
first respondent, the admitted wife of the defendant, and
the second respondent, the admitted son by her, are
interested in denying the status claimed by the plaintiff,
and ” have some rights against the estate of the 3rd
respondent. The learned Judge of the High Court further
observed When so much sanctity is attached to the status of
marriage, it would indeed be strange that persons who are so
intimately related to the 3rd respondent as wife and son,
should be denied the opportunity of contesting the status of
the petitioner as his lawfully married wife………… It
cannot be that the petitioner is seeking any empty relief
carrying with it the stamp of futility and it is difficult
to assume that she is fighting a vain or purposeless
litigation. If what she is seeking is a relief which will
carry with it certain legal incidents, are not persons
interested in denying her status proper parties to the
litigation ? ” The Court also observed that it was with a
view to avoiding multiplicity of suits that r. 10(2) of 0.
1, had made provision foradding parties. The Court noticed
the argument under s. 43 of the Specific Relief Act, but did
not express any final opinion, because, in its view, it had
already reached the ” conclusion that the proposed parties
are persons whose presence before the court is necessary
within the meaning of 0. 1, r. 10 (2), so as to ensure that
the dispute should be finally determined once for all in the
presence of all the parties interested.”
Against the judgment of the High Court, refusing to set
aside the order passed by the learned trial judge,
1118
the plaintiff moved this Court and obtained special leave to
appeal.
In the forefront of his arguments in support of the appeal,
the learned Attorney-General submitted that the court had no
jurisdiction to add the first two respondents as defendants
in the suit. He relied upon the words of the relevant
portion of sub-rule (2) of r. 10 of O. I of the Code, which
are as follows:
” (2)…………… and that the name of any person who
ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be
necessary in order to-enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added.
He rightly pointed out, and there was no controversy between
the parties before us, that the added defendants do not come
within the purview of the words ” who ought to have been
joined “, which apparently have reference to necessary
parties in the sense that the suit cannot be effectively
disposed of without their presence on the record. The
learned Attorney-General strenuously argued that it cannot
be asserted in this case that the presence of the added
defendantsrespondents 1 and 2-before the court was necessary
in order to enable the court effectually and completely to
adjudicate upon and settle all the questions involved in the
suit. He founded this argument on the legal position that
the wife and the son of the Princerespondents I and 2-have
no present interest in his estate. Their expectancy of
succession to the estate of the Prince does not clothe them
with any right vested or contingent to intervene in this
action. In this connection, he pointed out that r. 10 of 0.
1 of the Code of Civil Procedure, which corresponds to
portions of 0. 16, r. 11, of the Rules of the Supreme Court
in England, has been the subject-matter of judicial
interpretation in many cases. Both, in this country and in
England, there have been two currents of judicial opinion,
one taking what may be called the narrower view, and the
other, the wider view. As illustrations of the former, that
is to say, the narrower
1119
view, may be cited the cases of Moser v. Marsden (1) and
McCheane v. Gyles (No. 2) (2). In India, this view is
represented by the decision in the case of Sri Mahant
Prayaga Doss Jee Varyu v. The Board of Commissioners for
Hindu Religious Endowments, Madras (3). On the other side
of the line, representing the wider view, may be cited the
case of Dollfus Mieg Et Compagnie S. A. v. Bank of England
(4). In India, the decisions of the Madras High Court, in
the cases of Vydianadayyan v. Sitaramayyan (5) and Secy. of
State v. M. Murugesa Mudaliar (6), were cited as
illustrations. But it was contended on behalf of the
appellants that whether the narrower or the wider view of
the interpretation of sub-r. (2) of r. 10 of 0. I of the
Code of Civil Procedure is taken, the result, so far as the
present controversy is concerned, would be the same. In the
leading case of Moser v. Marsden (1), Lindley L. J. has held
that a party who is not directly interested in the issues
between the plaintiff and the defendant, but is only
indirectly or commercially affected, cannot be added as a
defendant because the court has no jurisdiction, under the
relevant rule, to bring him on the record even as a ” proper
party “. That was a suit to restrain the alleged
infringement of the plaintiff”s patent by the defendant,
Marsden. The Court held, reversing the order of the trial
judge, that the party sought to be added had no direct
interest in. the subject-matter of the litigation, and all
that could have been said on behalf of the party intervening
was that the judgment against the defendant would affect his
interest commercially. The Court distinguished the previous
decisions in Vavasseur v. Krupp(7) and Apollinaris Company
v. Wilson (8), on the ground that in those cases the
litigation would have affected the property of the persons
not before the court. This leading case of Moser v. Marsden
(1) is clearly an authority for the proposition that the
court has jurisdiction to add as a party defendant only a
person
(1) [1892] 1 Ch. 487.
(2) [1902] 1 Ch. 911.
(3) (1926) I. L. R. 50 Mad. 34.
(4) [195O] 2 All E. R. 605.
(5) (1881) I. L. R. 5 Mad. 5.2.
(6) A. I. R. 1929 Mad. 443.
(7) (1878) 9 Ch. D. 351 .
(8) (1886) 31 Ch. D. 632.
1120
who is directly interested in the subject-matter of the
litigation and not a person who will be only indirectly or
commercially affected. Kay L. J. who agreed with Lindley L.
J. in that case, observed that the relevant rule of the
Supreme Court, on its proper construction, authorized the
court to add only such persons as would be bound by the
judgment to be given in the action, but did not authorize
the court to add any persons who would not be so bound and
whose interest may only indirectly be affected in a commer-
cial sense. To the same effect is the decision in Re I. G.
Farbeninadusrie A. G. Agreement (1). The Court held that in
order that a party may be added as a defendant in the suit,
he should have a legal interest in the subject-matter of the
litigation-legal interest not as distinguished from an
equitable interest, but an interest which the law
recognizes. Lord Greene M. -R. giving the judgment of the
Court, also observed that the court had. no jurisdiction to
add a person as a party to the litigation if he had no legal
interest in the issue involved in the case. In the case of
Vydianadayyan v. Sitaramayyan (2), in which the wider view
of the interpretation of the relevant rule was taken, Turner
C. J. delivering the judgment of the Court, observed that
the wider interpretation which enabled the court to avoid
conflicting decisions on the same question and which would
finally and effectually put an end to the litigation
respecting it, should be adopted. But in that case also the
party added as defendant was interested in the subject-
matter of the litigation, though there was no impediment to
the court determining the issues between the parties
originally before the court. The learned Judge, on a
discussion of the English and Indian cases on the subject,
came to the conclusion that a material question common to
all the parties to the suit and to third parties should be
tried once for all. He held that to secure this result the
court bad a discretion to add parties-a discretion which has
to be judicially exercised, that is, that by adding the new
parties the court should not inflict injustice upon the
parties already on the record, in the sense
(1) [1943] 2 All E. R. 525.
(2) (1881) I.L.R. 5 Mad. 52.
1121
that they would be prejudiced in the fair trial of the
questions in controversy.
The two Madras decisions in Sri Mahant Prayaga Doss Jee Varu
v. The Board of Commissioners for Hindu Religious
Enclowmentg, Madras (1) and Secy. of State v. M. Murugesa
Mudaliar (2) appear to have taken conflicting views on the
question whether Government could be added as a party to the
litigation not because it was directly interested in the
subjectmatter of the litigation, but because the law enacted
by the legislature of that State had been questioned. this
controversy appears to have been raised in the Federal Court
in the case of The United Provinces v. Mst. Atiqa Begum
(3). In that case the provincial legislature of the United
Provinces, as it then was, had enacted the United Provinces
Regularization of Remissions Act (XIV of 1938) precluding
the courts from entertaining any question as to the validity
of certain orders of remission of rents. The validity of
that Act was questioned in a litigation between a landlord
and his tenants. At the High Court stage the Provincial
Government was added as a party to the litigation at the
instance of the Advocate-General, with a view to enabling
the Government to come up in appeal to the Federal Court in
order to obtain a more authoritative pronouncement on the
vales of the Act. In the Federal Court the power of the
High Court to add the Provincial Government as a party was
specifically questioned. Gwyer C. J. noticed the two Madras
decisions referred to above but assumed that there was
jurisdiction in the Court in a proper case to do so, and,
therefore, did not express his considered opinion in view of
the fact that his two colleagues, Sulaiman and Varadachariar
JJ. had agreed, though for different reasons, in the view
that the High Court had jurisdiction to implead the
Government though it was only indirectly interested in the
litigation. Sulaiman J. was inclined to take the view that
there was a discretion in the High Court to add the
Government as a party. On the other hand, Varadachariar J.
(1) (1926) I.L.R. 50 Mad. 34. (2) A.I.R. 1929 Mad 443.
(3) [1940] F.C.R. 110.
1122
was inclined to take the view that the State did not stand
on the same footing as a private third party for all
purposes. He took the view that the State as the guardian
of the public interest should not be called upon to show
some pecuniary or proprietary interest or interest in public
revenue in the questions involved, to be added as a party.
He also observed that in a case where the State intervention
was concerned, ” it must be decided on broad grounds of
justice and convenience and not merely as turning on the
interpretation of a particular rule in the Civil Procedure
Code.” Discussing the question whether it was a matter of
discretion or of Jurisdiction in the court to make an order
adding a party, the learned Judge made the following
observations :-
” In my opinion, there is no case here of defect of
jurisdiction in the sense in which it is said that consent
cannot cure a defect of jurisdiction. It is true that in
Moser v. Marsden (1), Lindley L. J. observed that the
question was not one of ” discretion but of jurisdiction “.
But as the antithesis shows, the learned L. J. apparently
had in mind the difference between the decision of the
question of joinder on the interpretation of a rule of law
and a direction given by the lower court in the exercise of
its discretion, because in the latter case the court of
appeal would generally be reluctant to interfere. It may
even be regarded as a case of excess of jurisdiction within
the meaning of s. 115 of the Civil Procedure Code, but that
will not make the order void in the sense that it may be
ignored or treated as if it had never been passed.” It would
thus appear that the courts in India have not treated the
matter of addition of parties as raising any question of the
initial jurisdiction of the court. It may sometimes involve
a question of jurisdiction in the limited sense in which it
is used in s. 115 of the Code of Civil Procedure.
It is no use multiplying references bearing on the
construction of the relevant rule of the Code relating to
addition of parties. Each case has to be determined on its
own facts, and it has to be recognized that no decided cases
have been brought to our notice which
(1) [1892] 1 Ch. 487.
1123
can be said to be on all fours with the facts and
circumstances of the present case. There. ,cannot be the
least doubt that it is firmly established as a result of
judicial decisions that in order that a person may be added
as a party to a suit he should have a direct interest in the
subject-matter of the litigation whether it raises questions
relating to moveable or immoveable property. In the instant
case, we are not concerned with any controversy as regards
property or estate. Hence, all the cases cited at the bar,
laying down that a person who has no present interest in the
subjectmatter cannot be added, are cases which were con-
cerned with property rights. In this case, we are concerned
primarily with a declaration as regards status which
directly comes under the provisions of s. 42 of the Specific
Relief Act. We are concerned, in this case, with the
following provisions of s. 42:-
” 42. Any person entitled to any legal character, or to any
right as to any property, may institute a suit against any
person denying. or interested to deny, his title to such
character or right, and the Court may in its discretion make
therein a declaration that he is so entitled, and, the
plaintiff need not in such suit ask for any further relief.”
This section recognizes the right in any person to have a
declaration made in respect of his legal character or any
right to property. To such a suit for a mere declaration,
any person denying or interested to deny the existence of
any legal character or the alleged right to any property,
would be a necessary party. The plaintiff appellant chose
to implead only her alleged husband, the Prince. There is
no clear averment in the plaint that the defendant had ever
denied the legal character in question, namely, the status
of the plaintiff as his wife. The substance of the
plaintiff’s cause of action is stated in para. 3 of the
plaint. From the words used in the said para. of the
plaint, it is clear that the persons who are alleged to have
known the existence of the relationship of husband and wife
between the parties would include the respondents 1 and 2,
and that the Prince had been trying to suppress the fact of
143
1124
the marriage with the plaintiff so as to lead the members of
his family to conclude that the plaintiff is not his wife,.
The gravamenofthechargeagaiiistthePrince is that ” he
refuses to openly acknowledge the plaintiff as his legally
wedded wife, “, and that this conduct has cast a cloud oil
the plaintiff’s status as such wife. Such a conduct on the
part of the Prince, it is further alleged, is not only
injurious and detrimental to the rights of the plaintiff,
but is adversely affecting the rights of the issue of the
marriage, meaning thereby, the three daughters by the
plaintiff. It is thus clear, as was contended on behalf of
respondents I and 2, that reading between the lines of the
averments aforesaid, it is suggested that not only the
defendantrespondent 3-but the other inembers of his family,
including respondents I and 2, were interested ill deying
the plaintiff’s alleged status, and that this suit-,”,as
being instituted to clear the cloud cast not, only upon the
plaintiffs status as a legally wedded wife, but upon the
status of the three daughters by her. It is clear,
therefore, that if the plaintiff had been less disingenuous
and had impleaded the first and the second respondents also,
as defendants in the suit, the latter could not have been
discharged from the action on the ground that they had been
unnecessarily impleaded and that no cause of action bad been
disclosed against them. They would certainly have been
proper parties to the suit. This is a very important aspect
of the case which has to be kept ill view in order to
determine the question whether respondonts, 1 and 2 had been
rightly added as defendants on their own intervention.
It is also clear on the words of the statute, quoted above,
that the grant of a declaration such as is contemplated by
s. 42, is entirely in the discretion of the court. At this
stage it is convenient to deal with the other contention
raised on behalf of the appellant namely, that in view of
the unequivocal admission of the plaintiffs claim by the
Prince in his written statement and repeated as aforesaid in
his counter to the application for intervention by
respondents I and 2, no serious controversy now survives.
It is suggested
1125
that the declarations sought in this case would be granted
as a matter of course. In this connection, our attention
was called to the provisions of r. 6 of 0. 12 of the Code of
Civil Procedure, which lays down that upon such admissions
as have been made by the Prince in this case the court would
give judgment for the plaintiff. These provisions have got
to be read along with r. 5 of 0. 8 of the (,ode with
particular reference to the proviso which is in these
terms:-
” Provided that the Court may in its discrettion require any
fact so admitted to be proved otherwise than by such
admission.”
The proviso quoted above is identical with the proviso to s.
58 of the Indian Evidence Act, which lays down that facts
admitted need not be proved. Reading all these provisions
together, it is manifest that the court is not bound to
grant the declarations prayed for even though the facts
alleged in the plaint may have been admitted. In this
connection, the following passage in Anderson’s ” Actions
for Declaratory Judgments “, Vol. 1, p. 340, under art. 177,
is relevant:-
” A claim of legal or equitable rights and denial thereof on
behalf of an adverse interest or party constitutes a ripe
cause for a proceeding, seeking declaratory relief. A
declaration of rights is not proper where the defendant
seeks to uphold the plaintiff-, in such an action. The
required element of adverse parties is absent.”
” In others words the controversy must be between the
plaintiff and the respondent who asserts an interest adverse
to the plaintiff. In the absence of such a situation there
is no justiciable controversy and the case must be
characterized as one asking for an advisory opinion, and as
being academic rather than justiciable……………”
” i.e., there must be an actual controversy of justiciable
character between parties having adverse interest.”
Hence, if the court, in all the circumstances of a parti-
cular case, takes the view that it would insist upon the
burden of the issue being fully discharged, and if the,
1126
court, in pursuance of the terms of s. 42 of the Specific
Relief Act, decides, in a given case, to insist upon clear
proof of even admitted facts, the court could not be said to
have exceeded its judicial powers. That the plaintiff
herself or her legal advisers did not take the view
contended for on her behalf, is shown by the fact that a few
days after the filing of the written statement of the
Prince, on April 27, Barkat Ali, the Mujtahid, who is
alleged to have solemnized the marriage, was examined in
court, and he gave his statement on oath in support of the
plaintiff’s claim. He also proved certain documents in
corroboration of the plaintiff’s case and his own evidence.
This witness was not cross-examined on behalf of the
defendant. It was stated before us, on behalf of
respondents 1 and 2, that there were pieces of documentary
evidence apart from certain alleged admissions made by or on
behalf of the plaintiff, which seriously militate against
the plaintiff’s case and the statement of the witness
referred to above. We need not go into all that con-
troversy, because we are not, at this stage, concerned with
the truth or otherwise of the plaintiffs case. At this
stage we are only concerned with the question whether in
adding respondents I and 2 as defendants in the action, the
courts below have exceeded their powers. It is enough to
point out at this stage that the plaintiff did not invite
the court to exercise its powers under r. 6 of 0. 12 of the
Code of Civil Procedure, and, therefore, we are not called
upon to decide whether the trial court was right in not
pronouncing judgment on mere admission. The court, when it
is called upon to make a solemn declaration of the plain-
tiff’s alleged status as the defendant’s wife, has,
naturally, to be vigilant and not to treat it as a matter of
course, as it would do in a mere money claim which is
admitted by the defendant. The adjudication of status, the
declaration of which is claimed by the plaintiff, is a more
serious matter, because by its intendment and in its
ultimate result it affects not only the persons actually
before,the court in the suit as originally framed, but also
the plaintiff’s progeny who are not parties to the action,
and the respondents 1 and 2.
1127
If the declaration of status claimed by the plaintiff is
granted by the court, naturally the three daughters by the
plaintiff would get the status of legitimate children of the
Prince. If the decision is the other way, they become
branded as illegitimate. The suit clearly is not only in
the interest of the plaintiff herself but of her children
also. It is equally clear that not only the Prince is
directly affected by the declaration sought, but his whole
family, including respondents I and 2 and their descendants,
are also affected thereby. This, naturally leads us to a
discussion of the effect of s. 43 of the Specific Relief
Act, which goes with and is an integral part of the scheme
of declaratory decrees which form the subject-matter of Ch.
VI of the Act. That section is in these terms:-
” 43. A declaration made under this Chapter is binding only
oil the parties to the suit, persons claiming through them
respectively, and where any of the parties are trustees, on
the persons for whom, if in existence at the date of the
declaration, such parties would be trustees.”
On behalf of the appellant it was contended by the learned
Attorney-General that the declaration of status sought in
this suit by the plaintiff will be binding only upon her and
the Prince, and being a rule of’ res judicata will bind only
the parties to the suit and their privies. It was further
contended that respondents I and 2 are in no sense such
privies. The argument proceeds thus: Section 43 lays down a
rule of res judicata in a modified form, and it was so
framed as to make it clear beyond all doubt by the use of
the word ” only ” that a declaration under s. 42 is binding
on the parties to the suit and on persons claiming through
them respectively. If any question arises in the future
after the inheritance to the estate of the, Prince opens
out, it could not be said that the plaintiff and respondents
1 and 2 were claiming through different persons under a
conflicting title which was the core of the rule of res
judicata. In this connection, reliance was placed upon the
decision of the Judicial Committee of the Privy Council ‘in
the case of Syed’ Ashgar Reza Khan v. Syed Mahomed Mehdi
Hossein
1128
Khan (1). That case lays down that a decision in a former
suit that the common ancestor of all the parties to the
subsequent suit was entitled to the whole of the profit of a
market in dispute in the two litigations, as against his co-
sharers in the zamindari in which the market was situate,
does not operate as res judicata in a subsequent dispute
between those who claim under him. In this connection,
reliance was also placed upon a decision of the Madras High
Court in the case of Vythilinga Muppanar v.
Vijayathammal(2), to the same effect. Mr. Pathak, appearing
on behalf of the .Prince, the third respondent, supported
the appellant by raising a further point that the words ”
claiming through ” mean the same thing as ” claiming under
in s. 11 of the Code of Civil Procedure, laying down the
rule of res judicata, and that those words are not apt to
refer to a declaration. of a more personal status, and that
they mean the same thing as pi-ivy in estate ,is understood
under the common law. He called our attention to the
following passage in ‘ Bigelow on Estoppel’, 6th Edn., at
pp. 158 and 159:-
” In the law of estoppel one person becomes privy to another
(1) by succeeding to the position of that other as regards
the Subject of the estoppel, (2) by holding in subordination
to that other…………………. But it should be noticed
that the ground of privity is property and not personal
relations To make a man a privy to an action he must have
acquired an interest in the subject-matter of the, action
either by inheritance, succession, or purchase from a party
subsequently to the action, or he must hold property sub-
ordinately.”
He also drew our attention to similar observations in ”
Casperz on Estoppel”. On the other hand, Mr. Purshottam and
Sir Syed Sultan Ahmed, appearing on behalf of respondents I
and 2, respectively, contended that ” claiming through ” and
” claiming under ” have not exactly the same significance in
law, and that the rule laid down in s. 43 of the Specific
Relief Act does not stand on the same footing as a rule of
res judicata contained in s. II of the Code of
(1) (1903) L.R. 30 I.A. 71.
(2) (1882) I.L. R. 6 ivlad. 43.
1129
Civil Procedure, or estoppel by judgment, as discussed in
the works of Bigelow and (Casperz, relied upon on behalf of
the other side. On behalf of respondents I and 2 it was
further contended that the suit was really intended not to
bind the Prince who has shown no hostility to the claim, but
to bind respondents 1 and 2. It was also contended that if
the court were to grant the declaration that the plaintiff
is the lawfully wedded wife of the Prince, if a controversy
arises hereafter between the plaintiff and her children on
the one side and respondents I and 2 on the other, this
judgment will not only be admissible in evidence in that
litigation, but will be binding upon thereon the plaintiff’,
because she is privy to the judgment, and oil her children,
because they will be claiming the benefit of the declaration
through her, and on respondents I and 2 because they are
admittedly the wife and son of the Prince and will be
manifestly claiming through him.
In this connection, it has to be remarked that the
discretion vested in a court to grant a merely declaratory
relief as distinguished from a judgment which is capable of
being enforced by execution, derives its utility and
importance from the objects it has in view, namely to ”
prevent future litigation by removing existing causes of
controversy to quiet title” and “to perpetuate testimony “,
as also to avoid multiplicity of proceedings. This practice
of granting declaratory reliefs, which originated in England
in the Equity courts, has been very much extended in America
by statutory provisions. In India, the law has been
codified in the Specific Relief Act, in Ch. VI, and has, in
a sense, extended the scope of the rule by providing for
declarations not only in respect of claims to property but
also in respect of disputes as regards status. From the
terms of s. 42 of the Act, it would appear that the Indian
courts have not been empowered to grant every form of
declaration which may be available in America. In its very
entire, a declaratory decree does not confer any new right,
but only clears Lip mists which may have gathered round the
title to property or to status or a legal character. When a
1130
court makes a declaration in respect of a disputed status,
important rights flow from such a judicial declaration.
Hence, a declaration granted in respect of a legal character
or status in favour of a person is meant to bind not only
persons actually parties to the litigation, but also persons
claiming through them as laid down in s. 43 of the Act. It
is, thus, a rule of substantive law, and is distinct and
separate from the rule of res judicata or estoppel by
judgment. The doctrine of res judicata, as it has been
enunciated in a number of rules laid down in s. 11 of the
Code of Civil Procedure, covers a much wider field than the
rule laid down in s. 43 of the Specific Relief Act. For
example, the doctrine of res judicata lays particular stress
upon the competence of the court. On the other hand, s. 43
emphasizes the legal position that it is a judgment in
personam as distinguished from a judgment in rem. A
judgment may be res judicata in a subsequent litigation only
if the former court was competent to deal with the later
controversy. No such considerations find a place in s. 43
of the Specific Relief Act. Again, a previous judgment may
be res judicata in a subsequent litigation between parties
even though they may not have been eo nomine parties to the
previous litigation or even claiming through -them. For
example, judgment in a representative suit, or a judgment
obtained by a presumptive reversioner will bind the actual
reversioner even though he may not have been a party to it,
or may not have been claiming through the parties in the
previous litigation.
When a declaratory judgment has been given, by virtue of s.
43, it is binding not only on the persons actually parties
to the judgment but their privies also, using the term
‘privy’ not in its restricted sense of privy in estate, but
also privy in blood. Privity may arise (1) by operation of
law, for example, privity of contract; (2) by creation of
subordinate interest in property, for example, privity in
estate as between a landlord and a tenant, or a mortgagor
and a mortgagee; and (3) by blood, for example, privity in
blood in the case of ancestor and heir. Otherwise, in some
conceivable cases, the provisions of s. 43, quoted
1131
above, would become otiose. The contention raised on behalf
of the appellant, which was strongly supported by the third
respondent through Mr. Pathak, as stated above, is that a
declaratory judgment would not bind anyone other than the
party to the suit unless it affects some property, in other
words, unless the parties were privy in estate. But such a
contention would render the provisions of s. 43 aforesaid,
applicable only to declarations in respect of property and
not declarations in respect of status. That could not have
been the intendment of the statutory rule laid down in s.
43. Sections 42 and 43, as indicated above, go together,
and are meant to be co-extensive in their operation. That
being so, a declaratory judgment in respect of a disputed
status, will be binding not only upon the parties actually
before the court, but also upon persons claiming through
them respectively. The use of the word only’ in s. 43, as
rightly contended on behalf of the appellant, was meant to
emphasize that a declaration in Ch. VI of the Specific
Relief Act, is not a judgment in rem. But even though such
a declaration operates only in personam, the section
proceeds further to provide that it binds not only the
parties to the suit, but also persons claiming through them,
respectively. The word I respectively’ has been used with a
view to showing that the parties arrayed on either side, are
really claiming adversely to one another, so far as the
declaration is concerned. This is another indication of the
sound rule that the court, in a particular case where it has
reasons to believe that there is no real conflict, may, in
exercise of a judicial discretion, refuse to grant the
declaration asked for for oblique reasons.
As a result of these considerations, we have arrived at the
following conclusions:-
(1) That the question of addition of parties under r. 10 of
0. I of the Code of Civil Procedure, is generally not one of
initial jurisdiction of the court, but of a judicial
discretion which has to be exercised in view. of all the
facts and circumstances of a particular case; but in some
cases, it may raise controversies as to the power of the
court, in contra distinction to its inherent
144
1132
jurisdiction, or, in other words, of jurisdiction in the
limited sense in which it is used in s. 115 of the Code;
(2)That in a suit relating to property in order that a
person may be added as a party, he should have a direct
interest as distinguished from a commercial interest in the
subject matter of the litigation;
(3)Where the subject-matter of a litigation is a
declaration as regards status or a legal character, the rule
of present or direct interest may be relaxed in a suitable
case where the court is of the opinion that by adding that
party it would be in a better position effectually and
completely to adjudicate upon the controversy ;
(4)The cases contemplated in the last proposition have to
be determined in accordance with the statutory provisions of
ss. 42 and 43 of the Specific Relief Act ;
(5)In cases covered by those statutory provisions the
court is not bound to grant the declaration prayed for, on a
mere admission of the claim by the defendant, if the court
has reasons to insist upon a clear proof apart from the
admission;
(6)The result of a declaratory decree on the question of
status such as in controversy in the instant case affects
not only the parties actually before the court but
generations to come, and, in view of that consideration, the
rule of I present interest’ as evolved by case law relating
to disputes about property does not apply with full force;
and
(7)The rule laid down in s. 43 of the Specific Relief Act
is not exactly a rule of res judicata. It is narrower in
one sense and wider in another.
Applying the propositions enunciated above to the facts of
the instant case, we have come to the conclusion that the
courts below did not exceed their power in directing the
addition of respondents I and 2 as parties-defendants in the
action. Nor can it be said that the exercise of the
discretion was not sound. Furthermore, this case comes
before us by special leave and we do not consider that it is
a fit case where we should interfere with the exercise of
discretion by the courts below. The appeal is, accordingly,
1133
dismissed. As regards the question of costs, we direct that
it will abide the ultimate result of the litigation and will
be disposed of by the trial court.
IMAM J.-I regret I cannot agree with the opinion of my
learned brethren expressed in the judgment just delivered.
The appellant in her plaint had asked for a declaration that
she was a legally wedded wife of respondent 3 and that she
was also entitled to receive from him Kharch-e-Pandan at the
rate of Rs. 2,000 per month. This respondent filed his
written statement in which he unequivocally admitted that
the appellant was married to him and that she was also
entitled to the Kharch-e-Pandan as claimed in the plaint.
He further admitted that the appellant bore him three issues
out of the marriage. The appellant sought no relief or any
declaration against respondents 1 and 2 as, indeed, she
could not have, because she had no cause of action against
them. There is nothing in the pleadings of the appellant
and respondent 3 which discloses that respondents I and 2
have any cause of action against the appellant. Respondents
1 and 2, however, filed an application under 0. 1, r. 10(2),
of the Code of Civil Procedure before the Judge of the City
Civil Court, Hyderabad, praying that they should be added as
parties to the suit filed by the appellant. The Judge of
the City Civil Court allowed the application and his
decision was affirmed by the High Court. The question for
decision in this appeal is whether the J@dge of the City
Civil Court was justified in adding respondents I and 2 as
parties to the suit and whether the decision of the High
Court upholding his order should be affirmed.
The provisions of 0. 1, r. 1, state as to who may be joined
as plaintiffs in a suit and 0. 1, r. 3, states who may be
joined as defendants. The parties who are to be joined as
plaintiffs and defendants in a suit are persons in whom and
against whom any right to relief in respect of or arising
out of the same act or transaction or series of acts or
transactions is alleged to exist, whether jointly, severally
or in the alternative, where, if such persons were parties
in separate suits, any
1134
common question of law or fact would arise. Independent of
this, a court has jurisdiction under 0.1, r. 10(1), to
substitute or add as plaintiff any person whom it considers
necessary for the determination of the real matters in
dispute. Under 0. 1, r. 10(2), the court has the power to
strike off a party who has been improperly joined, whether
as plaintiff or defendant, and to join, as plaintiff or
defendant, any person who ought to have been joined, or
whose presence before the court may be necessary in order to
enable it effectually and completely to adjudicate upon and
settle all the questions involved in the suit. It is quite
obvious from the contents of the plaint and the written
statement of respondent 3 that there was no occasion for the
appellant to have joined respondents I and 2 as defendants
in the suit. There remains, then, to consider whether the
circumstances appearing in this case justified the Judge of
the City Civil Court to add respondents 1 and 2 as
defendants under the provisions of 0. 1, r. 10(2).
Respondents 1 and 2 in their application under 0. 1, r.
10(2), of the Code of Civil Procedure, in essence, relied
upon the five following grounds for their plea that they
should be added as defendants in the suit:
(1)That respondent I was the lawful and legally wedded
wife of respondent 3,
(2) That respondent 2 was the son of respondent 3,
(3) That respondents 1 and 2 should be joined as parties
to the suit because the question to be adjudicated upon
would seriously affect their rights and interest in the
estate of respondent 3,
(4)That by adding respondents 1 and 2 as parties neither a
new cause of action would be introduced nor would the nature
of the suit be altered,
(5)That the issue to be tried in the suit, after res-
pondents I and 2 were added as parties, would still be the
same as the case made by the appellant was that respondent 3
was interested in denying the appellant’s marriage to
respondent 3-a fact which respondents I and 2 were equally
interested in denying.
The first two grounds afford no justification for respon-
dents I and 2 being added as parties to the suit, where
1135
the only question to be decided is whether the appellant is
married to respondent 3 and whether he had contracted to pay
to the appellant Rs. 2,000 a month as Kharch-e-pandan. Even
if the appellant successfully proved that she was married to
respondent 3, who had contracted to pay her Rs. 2,000 per
month as Kharch-e-pandan, the status and the rights of
respondents I and 2 as wife and son of respondent 3 would
remain unaffected. A Mohammedan is entitled to marry more
than once and have wives to the number four at one and the
same time. This is his right under his personal law and no
one can question the exercise of this right by him. In the
suit between the appellant and respondent 3, the question as
to whether the appellant was married to respondent 3 was a
matter entirely personal to the appellant and respondent 3.
The appellant claimed that she was lawfully married to
respondent 3. It was open to respondent 3 to either deny or
admit her claim. In fact, respondent 3 had admitted the
claim of the appellant that she was married to him. It is
not open to anyone else in the present litigation to say
that he has falsely made such an admission. It is true that
respondents 1 and 2 have alleged collusion between the
appellant and respondent 3. No positive facts are asserted
in support of this. The suggestion is based merely on
suspicion. Unless the court is justified in adding
respondents 1 and 2 as defendants in the suit the suggestion
made by them that there is collusion between the appellant
and respondent 3 should be ignored by the court on the
simple ground that respondents 1 and 2 have no locus standi
to make any such representation in the present case.
The 3rd, 4th and 5th grounds may be considered together as
they are inter-connected. Grounds 4 and 5 suggest that
there would be neither a new cause of action introduced nor
would the nature of the suit be altered and the issue to be
tried in the suit would still be the same even if
respondents I and 2 were added as parties. The only issue
in the suit filed by the appellant is whether she was
married to respondent 3 and whether there was a contract by
the latter to pay
1136
her Rs. 2,000 per month as Kharch-e-pandan. If respondents
I and 2 are added as parties, questions relating to right of
inheritance in the estate of respondent 3 would arise for
determination in addition to the only issue stated above in
the case. The main ground, upon which respondents 1 and 2
claim that they should be added as parties to the suit, is
to be found in the 3rd ground which, in substance, is that
if the appellant is declared to be lawfully wedded to
respondent 3, then the rights and interests of respondents I
and 2 in the estate of respondent 3 would be affected. In
other words, in the estate of respondent 3, on his death, in
addition to respondents 1 and 2, the appellant and her three
children by him would have rights of inheritance.
Consequently, the extent of inheritance of respondents I and
2 in the estate of respondent 3 would be considerably
diminished. It was urged that if the appellant is given the
declaration, which she seeks, the judgment of the court
would be in the exercise of matrimonial jurisdiction and it
would be a judgment in rem as stated in s. 41 of the Indian
Evidence Act. Such a declaration would also be binding on
respondents 1 and 2 by virtue of the provisions of s. 43 of
the Specific Relief Act. The appellant asked for a
declaration under s. 42 of the Specific Relief Act. This
section permitted a person who claimed to be entitled to any
legal character, or to any right to property, to institute a
suit against any person denying, or interested to deny, such
character or right. Respondents 1 and 2 was interested in
denying the appellant’s status as a wife and the status of
her three children as the legitimate children of respondent
3. A declaration in her favour would be binding on
respondents I and 2 and they would never be in a position to
disprove the appellant’s marriage to respondent 3. This was
an impossible situation where the declaration had been
obtained from a court as the result of collusion between the
appellant and respondent 3.
This submission presupposes that respondents I and 2 would
survive respondent 3. During the lifetime of respondent 3
neither the appellant nor her children on
1137
the one hand nor respondents 1 and 2 on the other have any
right,-, whatsoever in his estate under the Mohammedan law.
During the lifetime of respondent 3 respondents I and 2
would have the right to be maintained by him and, if the
appellant is also his wife, then she and her children would
also have the right to be maintained by him. The appellant
and respondent 1 would also have rights arising out of a
contract, if any, between them and respondent 3. None of
these rights, however, are rights or interests in the estate
of respondent 3. The submission also presupposes that on the
death of respondent 3 he would have left behind some estate
to be inherited by his heirs. These submissions are
entirely speculative and afford no basis for the impleading
of respondents 1 and 2 as parties to the appellant’s suit.
It was said, however, that the right to inherit is a present
right in respondents 1 and 2 and if the appellant is
declared to be the wife of respondent 3, then that right to
inheritance is affected. This contention is erroneous and
there is no legal basis to support it. If the appellant is
declared to be the wife of respondent 3 such a declaration
could not affect the right to inherit on the part of
respondents I and 2 in the estate of respondent 3, assuming
that respondent 3 on his death left an estate to be
inherited and that the appellant and her children and
respondents I and 2 survived him. The extent of the
inheritance of each one of these may thus become less but so
far as that is concerned it cannot be predicated during the
lifetime of respondent 3 as to what would be the extent of
the inheritance of his heirs. Under the Mohammedan law, by
which the parties are governed, respondent 3 could yet
validly marry two other women and have children from them,
in which case, the inheritance, if any, could not be to the
same extent if respondent 3 died leaving only respondents I
and 2 as his heirs. The entire question raised by res-
pondents I and 2 is based on the supposition that they have
rights in the estate of respondent 3. Under the Mohammedan
law they have no such rights. It is only in the event of
their surviving respondent 3 that their rights will vest in
his estate and the extent of
1138
their inheritance will be calculated on the number of
persons entitled to inherit his estate at the time of his
death.
It was urged, however, that unless respondents 1 and 2 are
now given an opportunity to show that there was no valid
marriage between the appellant and respondent 3, a
declaration that there was a marriage between these two
persons would be binding on them by virtue of the provisions
of s. 43 of the Specific Relief Act. If, therefore, on the
death of respondent 3 a question arose as to who were
entitled to inherit his estate, respondents I and 2 would
not be able to question the rights of the appellant and her
children and they would be adversely affected by the
declaration. It is somewhat doubtful, having regard to the
terms of s. 43, that such a declaration in the present suit
would be binding on respondents I and 2 as they would not be
claiming their right to inheritance through the appellant
and respondent 3 respectively. Assuming, however, that such
a declaration would be binding on them, that would be no
justification for their being impleaded in the present
litigation where the issue is not one of inheritance but one
of marriage between the appellant and respondent 3. If the
submission has any substance it might as well be said by any
one that he should be impleaded as a party to a suit and
should be allowed to contest the suit, although there was no
cause of action against him, because the decree in the suit
would bind him on the ground of res judicata.
It is true that in a suit under s. 42 of the Specific Relief
Act it is discretionary with the court to make or not to
make the declaration asked for. The exercise of that
discretion, however, has to be judicial. In the present
case there does not appear to be any legal impediment in the
way of the court refusing to make the declaration asked for
since respondent 3 had acknowledged the marriage and had
admitted the claim for Rs. 2,000 per month as Kharch-e-
pandan. The appellant has not asked for any sum of money to
be decreed in her favour. There is no cause of action now
left to the appellant which can be the basis for the present
suit. The appellant could rely upon the
1139
acknowledgement which raises a presumption under the
Mohammedan law that she is married to respondent 3. There
appears to be no good ground for adding respondents I and 2
as parties to the present suit. If hereafter on the
happening of a certain event and the existence of certain
circumstance any question arose whether the appellant was
married to respondent 3, then those who were interested in
disproving the marriage would be in a position to do so and
rebut the presumption arising from the acknowledgement.
Under O. 1, r. 10, of the Code of Civil Procedure the court
has the power to pass orders regarding the adding of parties
or striking off the name of a party. Whether the exercise
of this power is a matter of jurisdiction or of discretion
appears to have been the subject of difference of opinion in
the courts of law here and in England. Whichever view may
be correct it is. patent that resort to the exercise of such
power could only be had if the court is satisfied that it is
necessary to make an order under 0. 1, r. 10, in order to
effectually and completely adjudicate upon and settle all
questions involved in the suit. The court ought not to
compel a plaintiff to add a party to the suit where on the
face of the plaint the plaintiff has no cause of action
against him. If a party is added by the court without whose
-presence all questions involved in the suit could be
effectually and completely adjudicated upon, then the
exercise of the power is improper and even if it be a matter
of discretion such an order should not be allowed to stand
when that order is questioned in a superior court. The
plaintiff is entitled to choose as defendants against whom
he has a cause of action and he should not be burdened with
the task of meeting a party against whom he has no cause of
action. It was, however, suggested that on the face of the
plaint not only respondent 3 was interested in denying his
marriage with the appellant but a legitimate inference could
be drawn from the contents of the pleadings that respondents
1 and 2 were also interested in denying the marriage. No
allegation made in the pleadings even remotely suggests that
respondents I and 2 were interested to deny the alleged
145
1140
marriage of the appellant to respondent 3 or were denying
the same. Under s. 42 of the Specific Relief Act a suit may
be instituted against any person denying or interested to
deny the plaintiffs legal character or right to any
property. The plaint does not suggest that respondents 1
and 2 were denying the appellant’s status as wife of
respondent 3. Such an issue was raised by the appellant
against respondent 3 only. In law, it cannot be said that
respondents 1 and 2 are interested to deny the status of the
appellant as the wife of respondent 3 because the status of
respondent I as wife and respondent 2 as the son of
respondent 3 is not in the least affected even if the
appellant is declared to be the wife of respondent 3, as
under the Mohammedan law respondent 3 is entitled to have
both the appellant and respondent 1 as his wives
and .children through them. The true legal position in the
present suit between the appellant and respondent 3 is that
respondents I and 2 have no locus standi in such a suit.
There is no danger of multiplicity of suits during the
lifetime of respondent 3. The suggestion that the present
suit would lead to multiplicity of suits is founded on an
assumption which no court of law can assume. It cannot be
assumed that respondent 3 would die first. It may well be
that he may survive both respondents I and 2, in which case,
no question of any suit coming into existence at their
instance would arise. If the order allowing respondents 1
and 2 to be added as parties in a suit of the present nature
is allowed to stand it will open the way to a wider exercise
of powers under 0. 1, r. 10, and in a manner which was not
contemplated by the Code of Civil Procedure, or s. 42 of the
Specific Relief Act or permissible under the Mohammedan law.
I would, accordingly, allow the appeal as both the courts
below were in error in supposing that this was a case in
which the provisions of 0. 1, r. 10, applied and would set
aside the orders of the courts below. The appellant is
entitled to her costs throughout.
BY COURT: The appeal is dismissed. Costs to abide the
result of litigation in the trial court.
Appeal dismissed.
1141

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