@JUDGMENTTAG-ORDER
Satyanrayana Raju, J.@mdashThis is an application to revise an order made by the Second Additional Judge, City Civil Court, Hyderabad, by which he allowed a petition presented on behalf of respondents 1 and 2, under O. 1, R. 10, CPC that they might be added as defendants in a suit, O. S. No. 43/1 of 196T
2. The petitioner is the plaintiff in O. S. No 43/1 of 1957. The 1st respondent is Sahebzadi Anwar Begum. The 2nd respondent is Prince Shahamat Ali Khan, minor, represented by his mother, the 1st respondent. The 3rd respondent, Walashan Nawab Mozamiah Bahadur, the second son of H. E. H. the Nizam, is the defendant in the said suit.
3. On the 12th April, 1957, the suit was filed for the. following main reliefs:. (1) That the plaintiff be declared to be legally wedded wife (Mankuha) of the defendant: (2) That a decree be passed in her favour against the defendant declaring her to be entitled to receive from him Rs. 2,000/- per month as Kharche Pandan (pin money).
4. The petitioner sought the first of the above reliefs on the allegation that she was married to the defendant at a ceremony solemnized in accordance with the Shia Law, by a Shia Mujtahid on the 19th October, 1948; and that after the marriage, she gave birth to three daughters who are now aged 8 7 and 5 years respectively. She averred:
The fact of this marriage is known to all those who know the above named defendant, but the said defendant, for reasons best known to himself, has tried and is still trying to suppress the fact of this marriage (NIKAH) with the plaintiff in such a way that the members of his family should conclude that the plaintiff is not his Nikah wife He refuses to openly acknowledge the plaintiff as his legally wedded wife. This conduct of the defendant has cast a cloud upon the legal rights and status of the plaintiff as the legally wedded wife of the defendant.
5. The second of the reliefs sought by her is grounded on an alleged preputial agreement where under the 3rd respondent agreed to pay her a sum of Rs. 2,000/- per month as Kharch-e-Pandan, which amount he has defaulted in paying since January, 1953.
6. On the same date, that is, 12th April, 1957 she filed an application for examination on commission of Syed Barkat Ali, the Mujtahid who is said to have officiated at the marriage ceremony. Notice of this application was given to the 3rd respondent by Court on the 15th April, 1957.
7. On 22-4-1957, the 3rd respondent filed a written statement admitting the truth and correctness of the allegation made in the plaint regarding the petitioner''s marriage with him on the 19-10-1948. He also admitted the plaint allegation that the petitioner had three daughter born to her by him. In paragraph 3 of his writ ten statement he stated:
The defendant admits that sometime after his Nikah with the plaintiff, he was placed in circumstances, which compelled him to act in a manner, which may have created an impression that the defendant was intentionally trying to suppress the fact of the Nikah. With regard to the second of the reliefs claimed in the suit, the 3rd respondent, while not disputing the prenuptial agreement set. up by the petitioner, justified the stoppage of the payment on the ground of her expensive habits and extravagant living.
8. On 22-4-1957, the date on which the 3rd respondent filed his written statement, respondents 1 and 2 presented a petition under O. 1, R. 10, Civil Procedure Code, that they might be added as defendants in the suit. The grounds on which they have sought to be impleaded are that the first of them is the leaglly married wife of the 3rd respondent and the second of their is his son, that they are interested in denying the marriage of the petitioner and her status and that the petitioner and the 3rd respondent are fighting a collusive action with an ulterior pur pose, the result of which would seriously affec(sic) their rights.
9. The petition was resisted by the peti(sic) (sic)tioner, and the 3rd respondent actively supported her. Both of them filed their counters t(sic) the petition on 15-6-1957. It is admitted by there that the 1st respondent is the wife of the 3r respondent and that the 2nd respondent is his so(sic) They have, however, contested the petition inte(sic) (sic)alia on the following grounds: Respondents and 2 are neither necessary nor proper parti(sic) to the suit. Their rights are not in any WA(sic) affected by the declaration sought for by the petitioner being granted in her favour and the nature of the suit will be changed if they a(sic) to be impleaded. Both of them have denied the allegations made by respondents 1 and 2 the they are fighting a collusive action.
10. The lower Court has held that respondents 1 and 2 are proper parties to the suit a: has directed that they be added as defendants. Aggrieved by the said order, the petitioner (plaintiff) has filed the present revision petition.
11. The arguments of the learned Advocate General, appearing for the petitioner, have cov(sic) (sic)ed a wide ground. A brief outline of his conf(sic) (sic)tions is as follows: On a proper construction O. 1, R. 10, C. P. C, the effectual and ''comp(sic) adjudication'' specified therein, refers to the d(sic) (sic)sion of questions as- between the original pari(sic) to the suit. Respondents 1 and 2 have no ir(sic) rest, direct or indirect, vested or contingent the result of the litigation. They being me(sic) expectant heirs, have no legal rights in p(sic) (sic)senti. All that they may have is a bare pc(sic) (sic)bihty of succession to the property which r(sic) be left by the-3rd respondent intestate. The (sic) (sic)sibility is a mere hope or chance; it is no right or interest, much less is it property. The application to be impleaded rests on a fan(sic) and imaginary grievance. In any view, the p(sic). averments having been unreservedly accepted the 3rd respondent, there are now no ouest(sic) remaining to be adjudicated upon and settled the suit. If they are added, the nature of action will be enlarged and even changed the necessary implications and consequences.
12. In these contentions, he is supporter Mr. Rajah Aiyar, who has appeared for the respondent.
13. The first of these contentions relate(sic) the true construction of O. 1, R. 10, Code of Procedure, the material portion of which thus: The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order 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." Sub-r. (2) provides for the addition of (1) necessary parties and (2) proper parties.
Necessary parties are parties who ought to have been Joined, that is, parties necessary for the constitution of the suit without whom no decree at all can be passed. Proper parties are those whose presence enables the Court to adjudicate more effectually and completely the questions involved in the suit.
14. Counsel for the petitioner relied upon the English decision In Moser v. Marsden, 1892-1 Ch 487 (A), and also on a decision of the Mad as High Court in Mahant Prayaga Dassjee Vara Board of Commissioners for Hindu Religious endowments, Madras, ILR 50 Mad 34: (Am 1926 (sic)fad 836) (B). In 1892-1 Ch 487 (A), the Court of Appeal dismissed the application of a third (sic)arty even while recognising that that party (sic)night be indirectly affected by the result of the (sic)ase. The allegation made in support of the application in that case was that the defendant (sic)m record ''will not contest the case properly and yet Kay L. J., was content to observe, we cannot help that.
15. Following the decision in 1892 1 Ch 487 A),
The very basic principle of Judgment inter (sic)irtes is that the judgments are not judgments rem, but declaratory and operative only as be(sic) (sic)een them. The plaintiff being generally domi(sic) is litus, I fail to see on what principles of jus(sic) (sic)e he can be compelled to fight against some her litigant not of his own choice unless such a (sic)ocess is required by a positive rule of law.
16. As long ago as 1882, the very question as raised before the Madras High Court in the (sic)se of Vydianadayyan v. Sltarama. ILR 5 Mad (C). A Division Bench consisting of Sir (sic)arles Turner, C. J., and MuthuSwami Ayyar J., (sic)onounced a judgment contrary to the conten(sic) of the petitioner. They held that the ex(sic)(sic)ession questions involved in the suit refers to (sic)t merely questions which are involved in the (sic)t as between the parties originally impleaded (sic)t also questions as between third parties in-(sic)ested in the dispute. They observed thus:
To accept the more restricted interpreta(sic) (sic)h Involves the addition of words, which we do (sic)t find in the section, namely, between the par (sic)s to the suit,'' and there can be few, if any, (sic)sstions which cannot be determined between parties to the suit one way or other, and of which the determination, if any be material, will between the parties to the suit not be final. the other hand, the interpretation warranted the terms would enable the Court to avoid (sic)ifficting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to the litigation respecting them. No better instance of wisdom of such a rule could be afforded than is presented by the suit before the Court." It was a decision on The Code of 1877, but In this respect there was no difference between that and the present Code. That judgment has been followed in subsequent.cases, and has ruled the law ever since. In the later decisions of the Madras High Court and this Court a wider view has been taken of the powers conferred by O. L R. 10 and stress has been laid rather on the words "effectually and completely to adjudicate upon and settle all the, questions involved in the suit" than upon the words "necessary to enable the Court to decide them".
17. In
True, a decision is binding only on the parties to the suit: but does it follow that a Court is bound to decide a dispute in the Absence of those persons whom it most vitally concerns With great respect, I find myself unable to follow the case relied upon by the lower court. The view taken in that case is opposed not only to the plain wording, of the section but also to a large, body of authority.
The learned Judge held that it was open to the Court to implead a new party as a defendant even against the plaintiff''s consent in a fit and proper case. He agreed with the view taken in ILR 5 Mad 52 (C), that the effective adjudication mentioned in O. 1, R. 10, C P. C, was one not only between the parties to the suit but a final decision after bringing third parties interested in the dispute on record.
18. In
19. In a recent decision of pur Court in Sri ramamurty v. Venkatasubba Rao, 1956 Andh LT 917 (P), Viswanatha Sastry J., summarised the effect of O. 1, R. 10 (2), as follows:
The expression questions involved in the suit in O, l, R. 10 (2), means not merely the questions which are involved in the suit as between the parties originally impleaded. That object of the provision is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the dispute and for that purpose, they should be brought before the Court. O. 1, R. 10 (2) was framed in order to ensure that the dispute might be finally determine at the same time in the presence of all the parties interested without the delay and expense of several actions and trials and inconclusive adjudications.
I am in respectful agreement with the above decision which has succinctly formulated the principles in regard to the addition of parties under
O. 1, R. 10.
20. The question then is: Are respondents 1 and 2 parties interested in the subject-matter of litigation in the right which the petitioner claims in the suit and upon which she prays for the judgment of the Court. The relief which the petitioner seeks is a declaration that she is the legally wedded wife of the 3rd respondent; in other words, she seeks to establish her legal status as the wife Of the 3rd respondent. Or the allegations made in the plaint, it is clear that the one question which is the subject-matter of the litigation is whether the petitioner is the lawfully married wife of the 3rd respondent. Once it is established that she and the 3rd respondent are lawfully married, the parties acquire the status of marriage and the rights incidental thereto.
21. Admittedly the 1st respondent is the wife, and the 2nd respondent is the son, of the 3rd respondent. They contend that the petitioner has not been lawfully married to the 3rd respondent and submit that they are interested in denying the status claimed by the petitioner as the married wife of the 3rd respondent.
22. The consummation of. marriage operates to create a status - that of the husband and wife - or the marital status, A marriage, if valid, is valid for all purposes, and is attended with all the civil rights and obligations which the law confers and imposes upon persons who enter into the marriage relation. It defines not only the relations of the consorts to each other but also their status in society. It affects not only the status of the consorts and their relations but also defines the status of the children by reference to the parents. By virtue of the universal, principle of legitimacy, the full civil status of a child is obtained only through a legal marriage of the parents. Therefore, one of the most important legal implications of mar(sic) (sic)triage is that the children born out of lawful wedlock become the legitimate children of the spouses. It may be true that the declaration may not confer on the petitioner any present interest in the property of the 3rd respondent.
It, however, does confer on herself and her children certain legal rights It confers on the children the right to succeed the father in case the latter predeceases them intestate. Even in the case of testacy, the children will have the right to succeed to the estate left by him except to the extent of one-third. During their minority they have a right to be maintained by their father. The declaration which the petitioner seeks, thus carries with it very important legal incidents. But then it ha? been argued for the petitioner that respondents 1 and 2 have no present right or interest in the estate of the 3rd respondent and that they are not affected or prejudiced by a declaration being granted in favour of the petitioner.
Respondents 1 and 2, as the lawful wife and the legitimate child, will have similar rights as the petitioner and her children will have if a declaration affirming her status is to be granted in the suit In case the 3rd respondent predeceases the 2nd respondent intestate, his share In the estate of his father will be affected - it will be reduced. The 1st respondent right to dower Or ''mahar'' may be affected. It is stated for the petitioner that the 3rd respondent can denude himself of all his estate by executing a deed or deeds inter vivos or that he may marry some more wives within the limit of four, allowed by his personal law.
It is true that these possibilities are there, but the normal expectation is that he would not do so simply to hurt his wife and son. As matters now stand, it cannot be denied that respondents,1 and 2 have some rights against the estate of the 3rd respondent. The exact nature and scope of those rights may not be capable of precise specification at the present moment but the, fact remains that the declaration of the status of the petitioner does carry with it certain legal incidents, affecting then; rights or inte rest, and more particularly those of the 2nd respondent.
23. Looking at the matter from a larger point of view, the status of marriage is not merely a matter of domestic relations. Marriage is the institution that is the foundation of the family and of the society. It is regarded as asic to morality and civilisation and of vital interest to the society and the State, greater even than the private interests of the spouses. The consequences of the marriage contract are more significant to the body politic, and it is therefore that all systems of law attach importance to the status of marriage and legitimacy of children. 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 he denied the opportunity of contesting the status of the petitioner as his lawfully marrie(sic) wife.
24. The endeavour made by the learned Advocate General has been to show that the decree that may be obtained by the petitioner will not bind respondents l and 2 in any manne(sic) whatsoever. It cannot be that the petitioner (sic) seeking an empty relief carrying with it the stam(sic) 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 per sons interested in denying her status properties to the litigation? Who can be more interested than the wife and the son of the 3rd respondent in denying that the petitioner is the legally married wife of the 3rd respondent?
25. In answer to a specific question put b(sic) me, counsel for the petitioner stated that it would be open to respondents 1 and 2 to deny the pet(sic) (sic)tioner''s status as the lawfully married wife (sic) the 3rd respondent after the succession actually opens. If that is the correct legal position, there is every reason why respondents 1 and 2 should be added as parties to the present suit, because of the very object of O. 1, R. 10 (2) which (sic) to avoid multiplicity of suits by having an effe(sic) (sic)tual and complete adjudication of the dispute (sic)r regarding the status of the petitioner.
26. It has been argued by Mr. Ramaswan Aiyangar, counsel appearing for respondents and 2 that a declaratory decree is binding (sic) them under S. 43 of the Specific Relief Act. The Section reads:
A declaration made under this chapter binding only on the parties to the suit, person claiming through them respectively, and whe(sic) any of the parties are trustees, on the person for whom, if in existence at the date of the declaration, such parties would be trustees.
The learned counsel has argued that respondent 1 and 2 are persons claiming through the 3 respondent after the succession opens and the they would be bound by the decree which might be passed in the present suit and that therefore they are persons whose presence before the cov(sic) is necessary for an effectual and final adju(sic) cation of the question as to the petitioner''s st(sic) (sic)tus, especially so, because according to him, the petitioner and the 3rd respondent are fighting collusive action.
He asks, quite properly, why the petitioner wanting to get a declaration in her favour the decree that she might eventually obtain not going to bind anybody except the 3rd resp(sic) dent who is really not interested in disputing (sic) (sic)actum of marriage. He has argued that respondent 1 and 2 will be bound by the decree that will be passed in the suit.
I do not wish to express a final opinion on this question as even otherwise, I have reached the conclusion that the proposed parties are per (sic) (sic)oris whose presence before the Court is necessary within the meaning of O. 1, R. 10 (2) (sic)o as to ensure that the dispute should be final-(sic)y determined once for all in the presence of all he parties interested.
27. The petitioner''s suit is one for a decla(sic) (sic)ation of her legal character within the meaning (sic)f S. 42 of the Specific Relief Act. It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to (sic)rant it or not, and in every case the Court must (sic)ercise a sound judgment as to whether it is (sic)asonable or not, under the circumstances of the (sic)se, to grant the relief prayed for. The least, therefore, that the Court will in (sic)st on is that in determining whether it will exercise its discretion or not, it must have before Tall those parties on whose behalf there may be (sic)mething material to be said with regard to the object-matter of the litigation.
28. It is suggested by counsel for the peti(sic) (sic) aner that if the assertion made by respondents and 2, that the petitioner and the 3rd respondent are fighting a collusive action is true, they (sic)ay sue her later for setting aside the decree. court from possible technical objections to which much a suit might be open, the policy underlying (sic)e jurisdiction of the Court to make declare(sic)y decree cannot be ignored. It is the very object of that procedure that (sic)estions of this kind should be adjudicated on at the earliest opportunity before evidence (sic)aring upon them is lost. That purpose will undoubtedly defeated by holding that, per(sic) (sic)bs decades afterwards, this very question should tried again. Even to avoid collusion between petitioner and the 3rd respondent, it is just proper that respondents 1 and 2 should be (sic)led as defendants in the suit
29. Before considering the other conten(sic) is of the petitioner, it will be convenient at stage to refer to a contention raised by Mr. (sic)sah Iyer, appearing for the 3rd respondent. He submitted that under Mohamedan Law, an acknowledgment has the effect of validating a marriage & that therefore the admission mad by 3rd respondent in his written statement, re ding his marriage with the petitioner and also (sic)t the three daughters of the petitioner were (sic) to her by him puts an end to the contro(sic) (sic) y and that it is not open to the 1st and 2nd respondents to impeach the status of the peti(sic) er.
30. It is true that marriage can be presum(sic) from the fact of an acknowledgment by the (sic)i of the woman as his wife. Marriage may (sic)sstablished by direct proof. It will be pre(sic) (sic)ed, in the absence of direct proof, from (a) (sic)onged and continual cohabitation as husband wife or (b) the fact of the acknowledgment (sic)t by the man of the paternity of the child to the woman, provided all the conditions valid acknowledgment are fulfilled, or (c) fact of the acknowledgment by the man of woman as his wife.
But if it is definitely proved that there was marriage at all between the parties when the (sic)ren were begotten, in other words, if mar(sic) is disproved, the issue would be the issue of (sic)cation and they could not possibly be legiti(sic) mated by acknowledgment. (Vide Mulla''e Muham-J madan Law, page 238).
31. The leading case on the subject in Muhammad Allahdad Khan v. Mohammad Imsail Khan, ILR 10 All 289 (G), a case which has been followed by Courts throughout India and approved by the Privy Council. There, Mahmbod J., stated the law as follows:
Although according to the Muhammadan Law, Dcarar or acknowledgmenfcin general stands upon much the same footing as an admission, as defined in the Evfttonce Act, acknowledgments of parentage and other matters of personal status stand upon a higher footing than matters of evidence and form a part of the substantive Muhammadan Law.
So far as inheritance through males is concerned, the existence of consanguinity and legitimate descent is an indispensable condition precedent to the right of succession, and such legitimate descent depends upon the existence of a valid marriage between the parents. Where legitimacy cannot be established by direct proof of such a marriage, acknowledgment is recognized by the Muhammadan Law as a means whereby marriage of the parents or legitimate descent may be established as a matter of substantive law.
Such acknowledgment always proceeds upon the hypothesis of a lawful union between the parents and the legitimate descent of the acknowledged person from the acknowledger, and there is nothing in the Muhammadan Law similar to adoption as recognised by the Roman and Hindu Systems, or admitting of an affiliation which has no reference to consanguinity or legi(sic) (sic)timate descent A child whose illegitimacy Is proved beyond doubt, by reason of the marriage of its parents being either disproved or found to be unlawful, cannot be legitimatised by acknowledgment.Acknowledgment has only the effect of legitimation where either the fact of the marriage or its exact time with reference to the legitimacy of the child''s birth is a matter of uncertainty.
32. In
A claimant son who has in his favour a good, acknowledgment of legitimacy is in this position The arriage will be held proved and his legitimacy established unless the marriage is disproved. Until the claimant establishes his acknowledgment the onus is on him to prove a marriage. Once he establishes an acknowledgment, the onus is on those who deny a marriage to negative it in fact.
To the same, effect Is the judgment of the Privy Council in
33. A point involving some difficulty has been raised by the learned. Advocate-General with regard to the construction of the expression "questions involved in the suit". He has argued that the allegations made by the petitioner have been unreservedly accepted by the 3rd respondent and that therefore there are no questions now involved in the suit, and that the purpose of adding the proposed parties being only to adjudicate upon and settle all the questions involved in the suit no purpose is served by adding them at this stage.
The exact scope of the expression ''involved in the suit is bare of authority and neither side has been able to place before me a decision touching upon the construction of the expression. According to the Concise Oxford Dictionary, the word ''involved'' means included. Therefore, the expression embraces all questions intruded in the suit for purposes of decision.
The question which arises for decision In the suit is whether the petitioner is the legally married wife of the 3rd respondent, and until the Court pronounces a final judgment, it remains open. It may be mentioned that on the filing of the written statement by the 3rd respondent, the petitioner did not ask for a judgment on admission. She did not even withdraw the suit. The lis 6r controversy is kept alive. Even after the filing of the written statement the petitioner requested the Court to record the evidence of the Mowlivi Saheb who is said to have officiated at her marriage with the 3rd respondent.
His evidence was recorded on 27-4-1957, and he filed certain documents into court. Therefore the question raised by the petitioner and which is included in the suit, has not been finally determined.
34. Then it has been argued on behalf of the petitioner that Issues have not yet been framed in the suit and that the stage at which the proposed parties can be added is only after the issues are framed and not earlier. O. 1, R. 10 allows the addition of a party at any stage of the suit. There is no limitation on the power of the Court to add parties even before the issues are framed.
Of the expediency, if not the necessity, of adding respondents 1 and 2, even at the present stage, one cannot find a better illustration than the present case itself because at any time, having regard to the attitude taken by the 3rd respondent in accepting the averments made by the petitioner, there may be a judgment on consent, and once a decree is made, it is not open to the proposed parties to get themselves impleaded.
35. It has been finally contended for the petitioner that the result of adding respondents 1 and 2 as parties would be to enlarge the scope of the action or even to change the nature of the suit. I am unable to accept this contention. I fail to see how by the addition of the proposed parties the nature of the suit is changed or its scope enlarged. The question for determination would still be the same, that is, whether the Petitioner is the legally married wife of the 3rd respondent,
36. Mr. Ramaswamy Aiyangar has submitted that the order of the lower Court has beer made in the exercise of its discretionary jurisdiction, and relying upon the decision of the Sunj (sic)eme Court in
37. In my opinion, therefore, the order of the Court below is proper and there are n(sic) grounds for interference in revision: The Civil Revision Petition fails and is dismissed with cost; of respondents 1 and 2.
