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TMI Blog1958 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 2,000 per month to the plaintiff as Kharch-e-pandan; that the Prince stopped the payment of the allowance aforesaid of ₹ 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 I.G. ₹ 2,000 per month as Kharch-e-pandan." 3. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'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 attribute 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." 4. The Prince, in his own answer to the application for intervention, stated that he admitted that the first respondent is his wife and that the second respondent is his son, and repeated his admission by saying that he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 O. 1, had made provision for adding parties. The Court noticed the argument under section 43 of the Specific Relief Act, but did not express any final opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrents 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 view, may be cited the cases of Moser v. Marsden ([1892] 1 Ch. 487) and McCheane v. Gyles (No. 2) ([1902] 1 Ch. 911). 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 ([1926] I.L.R. 50 Mad. 34). 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 ([1950] 2 All. E.R. 605). In India, the decisions of the Madras High Court, in the cases of Vydianadayyan v. Sitaramayyan ([1881] I.L.R. 5 Mad. 52) and Secy. of State v. M. Murugesa Mudaliar AIR1929Mad443 , 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 O. 1 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 ([1892] 1 Ch. 487), Lindley L.J. has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant 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 had 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 that they would be prejudiced in the fair trial of the questions in controversy. 10. The two Madras decisions in Sri Mahant Prayaga Doss Jee Varu v. The Board of Commissioners for Hindu Religious Endowm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ([1892] 1 Ch. 487), 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 section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiffs 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 the marriage with the plaintiff so as to lead the members of his family to conclude that the plaintiff is not his wife. The gravamen of the charge against the Prince is that "he refuses to openly acknowledge the plaintiff as his legally wedded wife", and that this conduct has cast a cloud on 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 1 and 2, that reading between the lines of the averments aforesaid, it is suggested that not only the defendant - respondent 3 - but the other members of his family, including respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaintiffs in such an action. The required element of adverse parties is absent." "In other 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." 15. Hence, if the court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the court, in pursuance of the terms of section 42 of the Specific Relief Act, decides, in a given case, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 1 and 2 and their descendants, are also affected thereby. This, naturally leads us to a discussion of the effect of section 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 on 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." 16. 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 respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y inheritance, succession, or purchase from a party subsequently to the action, or he must hold property subordinately." 17. 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 1 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 section 43 of the Specific Relief Act does not stand on the same footing as a rule of res judicata contained in section 11 of the Code of 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 1 and 2 it was further contended that the suit was really intended not to bind that 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 1 and 2 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lays particular stress upon the competence of the court. On the other hand, section 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 section 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. 19. When a declaratory judgment has been given, by virtue of section 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, privit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in section 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 sections 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 up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judge of the City Civil Court was justified in adding respondents 1 and 2 as parties to the suit and whether the decision of the High Court upholding his order should be affirmed. 24. The provisions of O. 1, r. 1, state as to who may be joined as plaintiffs in a suit and O. 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 common question of law or fact would arise. Independent of this, a court has jurisdiction under O. 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 O. 1, r. 10(2), the court has the power to strike off a party who has been improperly joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 27. The 3rd, 4th and 5th grounds may be considered together as they are inter-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the appellant and respondent 3. 28. This submission presupposes that respondents 1 and 2 would survive respondent 3. During the lifetime of respondent 3 neither the appellant nor her children on the one hand nor respondents 1 and 2 on the other have any rights whatsoever in his estate under the Mohammedan law. During the lifetime of respondent 3 respondents 1 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 inher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 30. It is true that in a suit under section 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 ₹ 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 acknowledgment which raises a presumption under the Mohammedan law that she is married to respondent 3. There appears to be no good ground for adding respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 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 1 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 1 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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