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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 ..... iage 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, the Prince filed his writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners 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 respondents 1 and 2 will not be affected in any way, and by insisting upon his M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opinion, because, in its view, it had already reached the conclusion that the proposed parties are persons whose pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer, 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 held that a party who is not directly interested in the issues between the plaintiff and the defendant, but is only indirectly or comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Endowments, Madras ([1926] I.L.R. 50 Mad. 34) and Secy. of State v. M. Murugesa Mudaliar AIR1929Mad443 appear to have taken conflicting views on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 and 2, were interested in denying the plaintiff's alleged status, and that this suit was being instituted to clear the cloud cast not only upon the plaintiff's status as a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondents 1 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing 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 the other, this judgment will not only be admissible in evidence in that litigation, but will be binding upon them - on the plaintiff, because she is privy to the judgment, and on her children, because they will be claiming the benefit of the declaration through her, and on respondents 1 and 2, becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 section 43, quoted abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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 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 'present interest' as evolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 obv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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-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 1 and 2 were added as parties. The only issue in the suit filed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 1 and 2 in the estate of respondent 3, assuming that respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 respondents 1 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 present nature is allowed to stand it will open the way to a wider exercise of powers under O. 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. 32. I would, accordingly, allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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