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PETITIONER: 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

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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.

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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