# [1959] 1 S.C.R. 1111

- **Citation:** [1959] 1 S.C.R. 1111
- **Court:** Supreme Court of India
- **Decided:** 1957-09-17
- **Bench:** B. P. Sinha, Jafer Imam, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1111-1456
- **Pages:** 30

## Headnote

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 I9@8), 0. I, r. I0(2)-Specific Relief Act (I of I877), 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
app.!ication 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 as 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 confinved 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 r and 2 as
parties-defendants in the action :
May 23.
Held (per Sinha and KapurJJ., Imam].. dissenting), 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 r and 2, were interested in denying the
appellant's status as a legally wedded wife, respondents 1 and 2
were proper parties to the suit.
The question of addition of parties under 0. r, "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. unde.r s. 42_ of
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1112
SUPREME COURT REPORTS
[1959]
r958
the Specific Relief Act, th<! rule that in order that a person may
be added as a party he must have a present or direct interest in
Rasia Begum
the subject-matter of the suit, is not wholly applicable, and the
v.
rule may be relaxed in a suitable case where the court is of the
A11war Begum 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 v.iew 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. 10(2), of the Code of Civil Procedure,
because :-
(1) There is nothing in the pleadings to suggest that respondents I and 2 were denying the appellant's status as wife of th

## Text

_Characters 0–39,961 of 68,627. This is a partial read: ask again with offset=39961 for what follows._

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S.C.R.
•
SUPREME COURT REPORTS
RAZIA BEGUM
v.
1111
SAHEBZADI ANWAR BEGUM & OTHERS
(B. P. SINHA, JAFER IMAM and J. L. KAPUR JJ.)
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 I9@8), 0. I, r. I0(2)-Specific Relief Act (I of I877), 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
app.!ication 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 as 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 confinved 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 r and 2 as
parties-defendants in the action :
May 23.
Held (per Sinha and KapurJJ., Imam].. dissenting), 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 r and 2, were interested in denying the
appellant's status as a legally wedded wife, respondents 1 and 2
were proper parties to the suit.
The question of addition of parties under 0. r, "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. unde.r s. 42_ of
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[1959]
r958
the Specific Relief Act, th<! rule that in order that a person may
be added as a party he must have a present or direct interest in
Rasia Begum
the subject-matter of the suit, is not wholly applicable, and the
v.
rule may be relaxed in a suitable case where the court is of the
A11war Begum 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 v.iew 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. 10(2), of the Code of Civil Procedure,
because :-
(1) There is nothing in the pleadings to suggest that respondents I and 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 snit 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 r<l\lpondents 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 doubtfμl 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.
•
CIVIL j\FPELLATE JURISDICTION: Civil Appeal No.
-695 of 1957 .
Appeal by special leave from the judgment and
order dated September 17, 1957, of the Andhra
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1113
Pradesh High Court in Civil Revision Petition No.111.2
of 1957 arising out of the order dated July 6, 1957, of
the Court of the Second Additional Judge, City Civil
Court, Hyderabad (Deccan), 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. 0. Chatterjee,
Syed JJf.ohasim, Akbar Ali Mosavi, H. J. Umrigar,
O. 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 Iyengar, C.
Chakravarthy, S. Ranganathan and G. Gopalakrishnan,
for respondent No. 2.
G. S. Pathak, A. V. Viswanatha Sastri, Mohd. Yunus
Sateem, 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.
Razia Begum
v.
Anwar Begum
SINHA J.-This appeal by special leave is directed
Sinha J.
against the concurring judgments and orders of the
courts below, allowing the intervention of respondents 1 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 M His Exalted Highness the Nizam of Hyderabad, •
and who will) hereinafter, be referred to as the Prince,
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SUPREME COURT REPORTS
[1959]
In the plaint she aJoleged that she is the lawfully
married wife of the Prince, the marriage ceremony
Razia.Beg"m
(N ikah) having been solemnized in accordance with
Anw"' Begum 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
Sinha ].
•
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 fa vonr of this
plaintiff against the defendant declaring her to be
entitled to receive from the defendant I. G. Rs. 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) Sahebzadi
Anwar Begum, and (2) Prince Shahamat Ali Khan,
minor, under the guardianship of his mother, the said
Sahebzadi, was made. They are respondents 1 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 plain-
• tiff is not his N ikah wife, and the defendant is interested in denyin~ the rights and status of the plaintiff,
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The petitioners on being joined a~ parties to the suit
will be equally interested in denying the marriage of
the plaintiff and her rights and status .......... The petitioners 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 1 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 controver!W 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 m~st hotly
contested in this Court, by asserting that the "judgment of this Hon'ble Court in this rmit 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 applica.tion for.
intervention, stated that he admitted th~t the first
142
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Razia Begum
v.
Anwar Begum
Sinha ].
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r958
RaziO Begu1n
v.
Anwar Begion
Sinha J.
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1116
SUPREME COURT REPORTS
[1959]
respondent is his wifa 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 plaini;iff, 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 defendantrespondent and to deprive the right.a and interests of
the petitioners in the defendant-respondent's estate. "
He, in his turn, added the following equally significant
penultimate para :-
"That the petitioners' application has been Jiled
in order to prolong the litigation and that the defendant-respondent'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 the~e 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
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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 th~ 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 &io 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 ~ssume that she is fightiQg 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 w.as with a view to avoiding multiplicity of
suits that r. 10(2) of 0. 1, had made provision for
adding 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."
I
Against the .judgment of the High Court, refusing to
set aside the order passed by the learned ~rial judge,
•
Razia Begum
v.
Anwar Begum
Sinha ]:
•
,
Razia Begum
v.
Anwar Begum
Sinha ].
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SUPREME COURT REPORTS
[1959]
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 0. 1 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 defend-
. ants 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 tiheir
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 1 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
illustration.a of the former, that is to say, the narrower
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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 Dol~fus 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. IO of 0. 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 (1 ), Lindley
L. J. has held that a party who is not directly
interested in the issues between the plaintiff and the
d~fendant, 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, Ma.rsden. 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] l Ch. 487.
(3) (1926) I. L. R. 50 Mad. 34.
(5) (1881) I. L. R. 5 Mad. 52.
(7) (1878) 9 Ch. D. 351.
•
(2) [1902] l Ch. 91f.
(4) [1950] 2 All E. R. 605.
(6) A .. I. R. 1929 Mad. 443.
(8) (1886) 31 C4. D. 632.
Razia Begum
v.
Anwar Begum
Sinha ].
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RazirJ- Begun:
v.
Anwar Beguni
Sinha J,
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[1959]
who is directly interes1led 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 Conrt, 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 commercial sense.
To the same effect is the decision in Re
I. G. Farbenindustrie A.G. Agreement('). 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 tiie
issue involved in the case. In the case of Vydianadayyan v. Sitaramayyan ('), in which the wider view
of the . interpretation of· the relevant rule was taken,
Turner C. J. delivering the judgment of the Court,
observed th.at 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
{I) [I943J 2 An E. R'. 525.
(2) {I88I) !.L.R. 5 1!ad. 52 .
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that they would be prejudiced in the fair trial of the
questions in controversy.
T
Razia Begum
he two Madras decisions in Sri J.11ahant Prayaga
v.
Doss Jee Varu v. The Board of Commissioners for
Anwar Begum
Hindu Religious Endowments, .ZIIadras (1) and Seoy. 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 foe
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 vires of the Act.
In the ]'ederal 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 <jecisions 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 t.here was
a discretion in the High Court to add the GC'Jvernment
as a party. On the other hand, Varadachariar J.
(1) (1926) I.L.R. 50 Mad. 34·
(2) A.LR. 1929 Mad. 443.
(3) [1940) F.C.R. IIO.
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was inclined to take the view that the State did not
stand on the same footing as a private third party for
Razia Begum
v.
all purposes.
He took the view that the State as the
Anwar Begum guardian of the public interest should not be called
Sinha J.
•
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 iny 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 ,pf
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 low& 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 tha.,t 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
constructi<m 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] l Cb. 487.
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SUPREME COURT REPORTS
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
Razia Begum
v.
Anwar Begum.
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 concerned 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 pers<m 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 suppres~ the fact of 1
•
Sinka ].
•
Razia Begum
v.
Anwar Begum
Sinha J.
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1124
SUPREME COURT REPORTS
[1959]
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 a verments aforesaid, it is suggested that not only the defendantrespondent 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 tho plaintiff's status as a legally wedded
wife, but upon the status of the three daughtera 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 had 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 in view
in order to determine the question whether re.spondents
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 contentJon raised on behalf of the appellant,
namely, that in view of the unequivocal admission of
the plaintiff's claim by the Prince in his written state-
"ment and repeated as aforesaid in bis . counter to the
application for intervention by respondents 1 and 2,
no serious contr'oversy now survives. It is suggested
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SUPREME COURT REPORTS
1125
r958
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 Code with particular
reference to the proviso which is in these terms :-
Razia Begu1n
v.
Anwar Begum
"Provided that the Court may in its discretion
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
paSt1age 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 plaintiffs in
such an action.
The required element of adverse
parties is absent."
" In other words the controversy must be between
the plainbiff 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
intBrBst."
Hence, if the court, in all the circumstances ~fa parti•
cular case, takes the view that it would insist upon the 1
burden of the issue being fully discharged,. and if the
Sinha /.
•
Razia Begun1
v.
Anwar Begu1n
Sinha j.
•
1126
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SUPREME COURT REPORTS
[1959]
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 controversy, because we are not, at this stage, concerned
with the truth or otherwise of the plaintiff's case.
At
this stage we are only. concerned with the question
whether in adding respondents 1 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 plaintiff'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 intendmen~ and in its ultimate result it affects not only
the persons actually before the court in the suit as origi-
'
nally framed, but also the plaintiff's progeny who are
not parties to the action, and the respondents 1 and 2.
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1127
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Razia Begum
v.
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
Anwar Begum
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 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."
On behalf of the appellant it was contended by the
learned Attorney-General th.at the declaration of
status sought in this suit by the plaintiff will be binding only upon her and the Prince, and bein~ a rule of
res judicata will bind only the parties to tlie 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 I and 2 were claiming through
different persons under a conflicting title which was
the core of the rule of res judicata. In this cpnnection,
reliance was placed upon the decision of the Judicial
Committee of the Privy Council in the case of Syed 1
Ashvar Reza Khan v. Syed Mahomed Mehdi Hossein
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Khan (1).
That case l:;,ys down that a decision in a
former suit that the common ancestor of all the parties
Razia lJeguni
f J
v.
to the subsequent suit was entitled to the whole o tie
Anrva, Begum profit of a market in dispute in the two litigations, as
Sinha J.
•
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('), 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.