Case: Razia Begum Vs. Sahebzadi Anwar Begum &amp; Others

the facts of this case, which are given below:2. On 12-4-1957, 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. 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 19-10-1948. 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 pre-nuptial 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 I. G. Rs. 2,000 per month as Kharch-e-pandan"It may by 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 22-4-1957, 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 O. 1, R. 10 of the C. P. C., on behalf of (1) Sahebzadi Anwar Begum, and (2) Prince Shahamat Ali Khan, minor, under the guardianship of his mother, the said Sahebzadi was made. They are respondents 1 and 2 respectively in this Court. The Sahebzadi, respondent No. 1, claimed to be the "lawful and legal wedded wife" of the Prince, and respondent No. 2, the son of the Prince by the first respondent. In their petition, they stated inter alia that"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. 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""That the petitioners have reasons to believe that the above suit is a result of collusion. The object and motive of the plaintiff in instituting the above suit is to adversely affect the relationship of the petitioners and the defendant and also to deprive the rights and interests of the petitioners in the defendants estate"On 15-6-1957, the plaintiff made an answer to the petition for intervention, filed by the respondents 1 and 2 aforesaid. She denied the right of the interveners to be impleaded in that suit, and asserted that the "possibility of the rights of the petitioners being infringed are very remote, contingent upon their or plaintiff surviving the defendant or other circumstances which may or may not arise". She also founded her objection on the ground that, having regard to the admission of the defendant in his written statement, "there is no serious 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, the respondents 1 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 Honble 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 respondent is his wife and that the second respondent is his son, and repeated his admission by saying that he married the plaintiff in October, 1948, and the first respondent in December, 1952. He added further that when he married the first respondent, he had already three daughters by the plaintiff, which fact was known to the first respondent at the time of her marriage with him. He supported the plaintiff in her objection to the intervention by asserting that the rights of the 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 in the defendant-respondents estate". He, in his turn, added the following equally significant penultimate para:"That the petitioners application has been filed in order to prolong the litigation and that the defendant-respondents 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 6-7-1957, allowed the application for intervention, and directed the 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 adjudicate upon and settle the present controversy, the presence of the interveners was necessary7. 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 well-considered 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 petitioners 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?"Court also observed that it was with a view to avoiding multiplicity of suits that R. 10(2) of O. 1, had made provision for adding parties. The Court noticed the argument under 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 O. 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, the plaintiff moved this Court, and obtained special leave to appeal.

Reasoning:
It would, thus, appear that the courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court. It may sometimes involve a question of jurisdiction in the limited sense in which it is used in S. 115 of the Code of Civil Procedure11. 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 recognised that no decided cases have been brought to our notice, which 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 subject-matter, cannot be added, are cases which were concerned with property rights. In this case, we are concerned primarily with a declaration as regards status which directly comes under the provisions of S. 42 of the Specific Relief ActSection 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 interest 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 plaintiffs cause of action, is stated in para 3 of the plaint. From the words used in the said para of the plaint, it is clear that the persons who are alleged to have known the existence of the relationship of husband and wife between the parties, would include the respondents 1 and 2 that the Prince had been trying to suppress the fact of the marriage with the plaintiff so as to lead the members of his family to conclude that the plaintiff is not his wife. The gravamen of the charge against the Prince, is that "he refuses to openly acknowledge the plaintiff as his legally wedded wife", and that this conduct has cast a cloud on the plaintiffs 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 the respondents 1 and 2, that reading between the lines of the averments aforesaid, it is suggested that not only the defendant - respondent No. 3 - but the other members of his family, including respondents 1 and 2, were interested in denying the plaintiffs alleged status, and that this suit was 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 had been disclosed against them. They would certainly have been proper parties to the suit. This is a very important aspect of the case which has to be kept in view in order to determine the question whether the respondents 1 and 2 had been rightly added as defendants on their own intervention12. 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 courtproviso quoted above, is identical with the proviso to S. 58 of the 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 admittedHence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of 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 plaintiffs claim. He also proved certain documents in corroboration of the plaintiffs case and his own evidence. This witness was not cross-examined on behalf of the defendant.It was stated before us, on behalf of the 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 plaintiffs case and the statement of the witness referred to. We need not go into all that controversy, 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 1 and 2 as defendants in the action, the courts below have exceeded their powers. It is enough to point out at this stage that the plaintiff did not invite the court to exercise its powers under R. 6 of O. 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 plaintiffs alleged status as the defendants 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 plaintiffs progeny who are not parties to the action, and the Respondents 1 and 2. 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 1 and 2 and their descendants, are also affected thereby16. 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 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 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 Chap. 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 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 oblique reasons