1. This 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 Order 1 Rule 10, Code of Civil Procedure, that they might be added as defendants in a suit, O.S No. 43/1 of 1957.
2. The petitioner is the plaintiff is O.S No. 43/1 of 1957. The 1st respondentia Sahebzadi Anwar Begum. The 2nd respondent is Prince Shahamat Ali Khan, minor, represented by his mother, the 1st respondent. The 3rd respondent, Walashan Nawab Mozamjah 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 Khorch-e-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 cermony solemnised 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 abovenamed defendants but the said defendant, for reasons best known to himself, has tried and is still trying to suppress the facts 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 prenuptial agreement whereunder 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 the 22nd April 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 19th October, 1948. He also admitted the plaint allegation that the petitioner had three daughters born to her by him. In paragraph 3 of his written 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.”
8. 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.
9. On the 22nd April, 1957, the date on which the 3rd respondent filed his-written statement, respondents 1 and 2 presented a petition under Or. 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 legally married wife of the 3rd respondent and the second of them 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 purpose, the result of which would seriously affect their rights.
10. The petition was resisted by the petitioner, and the 3rd respondent actively supported her. Both of them filed their counters to the petition on the 15th June, 1957. It is admitted by them that the 1st respondent is the wife of the 3rd respondent and that the 2nd respondent is his son. They have, however, contested the petition inter alia on the following grounds: Respondents 1 and 2 are neither necessary and proper parties to the suit. Their rights are not in any way 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 are to be impleaded. Both of them have denied the allegations made by respondents 1 and 2 that they are fighting a collusive action.
11. The lower court has held that respondents 1 and 2 are proper parties to the suit and has directed that they be added as defendants. Aggrieved by the said order, the petitioner (Plaintiff) has filed the present revision petition.
12. The arguments of the learned Advocate-General appearing for the petitioner, have covered a wide ground. A brief outline of his contentions is as follows: On a proper construction of Or. 1 R. 10 C.P.C the ‘effectual and complete adjudication’ specified therein, refers to the decision of questions as between the original parties to the suit. Respondents 1 and 2 have no interest, direct or indirect, vested or contingent, in the result of the litigation. They being merely expectant heirs, have no legal rights in praesenti. All that they may have is a bare possibility of succession to the property which may be left by the 3rd respondent intestate. The possibility is a mere hope or chance; it is not a right or interest, much less is it property. Their application to be impleaded rests on a fanciful and imaginary grievance. In any view, the plaint averments having been unreservedly accepted by the 3rd respondent, there are now no questions remaining to be adjudicated upon and settled in the suit. If they are added, the nature of the action will be enlarged and even changed with the necessary implications and consequences.
13. In these contentions, he is supported by Mr. Rajah Aiyar, who has appeared for the 3rd respondent.
14. The first of these contentions relates to the true construction of Or. 1, Rule 10, C.P.C the material portion of which runs 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………… Page: 848that 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.”
15. Sub-rule (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.
16. Counsel for the petitioner relied upon the English decision in Moser v. Marsden 1892 I Ch. 487, and also on a decision of the Madras High Court in Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments, Madras2. In Moser v. Marsden 1892 I Ch. 487, the Court of Appeal dismissed the application of third party even while recognising that party might be indirectly affected by the result of the case. The allegation made in support of the application in that case was that the defendant on record “will not contest the case properly” and yet Kay, L.J, was content to observe, ‘we cannot help that’.
17. Following the decision in Moser v. Marsden 1892 I Ch. 487, Srinivasa Iyengar J., held in Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowment Madras2, that the effectual and complete adjudication mentioned in Or. 1, R. 10, refers to a decision only as between the parties to a suit. He was chiefly swayed by the consideration that the judgment in a suit being only inter partes, a plaintiff cannot be compelled to implead as a defendant a person against whom he seeks no relief. He stated the basis, for his view, as follows:
“The very basic principle of judgment inter partes is that the judgments are not judgments in rim, but declaratory and operative only as between them. The plaintiff being generally dominus litus, I fail to see on what principles of justice he can be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law”
18. As long ago as 1882, the very question was raised before the Madras High Court in the case of Vydianadayian v. Sitaramayyan3. A Division Bench consisting of Sir Charles Turner, C.J, and Muthuswami Avyar J., pronounced a judgment contrary to the contention of the petitioner. They held that the expression ‘questions involved in the suit’ refers to not merely questions which are involved in the suit as between the parties originally impleaded but also questions as between third parties interested in the dispute. They observed thus:
“To accept the more restricted interpretation involves the addition of words, which we do not find in the section, namely, ‘between the parties to the suit’, and there can be few, if any, questions which cannot be determined between the parties to the suit one way or other, and of which the determination, if any be material, will, as between the parties to the suit not be final. On the other band, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which Page: 849would 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 rule could be afforded than is presented by the suit before the Court.”
19. It was a decision on the Code of 1377, 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 Or. 1, R. 10, and stress has been laid rather on the words “effectually and completely to abjudicate upon and settle all the questions involved in the suit” than upon the words “necessary to enable the court to decide them”.
20. In Secretary of State v. Murugesa Mudaliar A.I.R 1929 Mad. 443 Venkata Subbarao, J., after an exhaustive review of the decisions which have interpreted Or. 1, R. 10, observed as follows:
“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.”
21. 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 Vydianandayyan v. Sitaramayyan2 that the effective adjudication mentioned in Or. 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.
22. In Vanjiapba v. Annamalav Patanjali A.I.R 1940 Mad. 69 Sastri J., accepted the liberal construction given by Venkatasubba Rao, J., to the terms of Or. 1, R. 10.
23. In a recent decision of our Court in Sriramamurthy v. Venkatasubbarao 1956 A.L.T 917, Viswanatha Sastry, J. summarised the effect of Or. 1, R. 10(2), as follows:
“The expression ‘questions involved in the suit’ in Or. 1, R. 10(a), means not merely the questions which are involved in the suit as between the parties originally impleaded. The 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. Or. 1, R. 10(2) was framed in order to ensure that the dispute might be finally determined 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.”
24. I am in respectful agreement with the above decision which has succinctly formulated the principles in regard to the addition of parties under Or. 1, R. 10.
25. The question then is: Are respondents 1 and 2 parties interested in the subject-matter of litigation? The cause of action or the subject matter of litigation is the right which the petitioner claims in the suit and upon which Page: 850she 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. On 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.
26. 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.
27. 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 marriage 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 has 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's 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 alia 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, Page: 851but 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 I 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 their rights or interest, and more particularly those of the 2nd respondent.
28. 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 basic 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 be denied the opportunity of contesting the status of the petitioner as his lawfully married wife.
29. 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 1 and 2 in any manner what so ever. It cannot be that the petitioner is seeking an 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? 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?
30. In answer to a specific question put by me, counsel for the petitioner stated that it would be open to respondents 1 and 2 to deny the petitioner's status as the lawfully married wife of 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 Or. 1, R. 10(2) which is to avoid multiplicity of suits by having an effectual and complete adjudication of the dispute regarding the status of the petitioner.
31. It has been argued by Mr. Ramaswami Iyyengar, counsel appearing for respondents 1 and 2, that a declaratory decree is binding on them under Section 43 of the Specific Relief Act. That section reads:
“A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.”
32. The learned counsel has argued that respondents 1 and 2 are persons claiming through the 3rd respondent after the succession opens and that 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 court is necessary for an effectual and final adjudication of the question as to the petitioner's status, especially so, because according to him, the petitioner and the 3rd respondent are fighting a collusive action. He asks, quite properly, why the petitioner is wanting to get a declaration in her favour if the decree that she might eventually obtain is not going to bind anybody except the 3rd respondent who is really not interested in disputing the factum of marriage. He has argued that respondents 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 prosposed parties are persons whose presence before the Court is necessary within the meaning of Or. 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.
33. The petitioner's suit is one for a declaration of her legal character within the meaning of Section 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 grant it or not, and in every case the court must exercise a sound judgment as to whether it is reasonable or not, under the circumstances of the case, to grant the reliefs prayed for. The least, therefore, that the court will insist on is that in determining whether it will exercise its discretion or no, it must have before it all those parties on whose behalf there may be something material to be said with regard to the subject-matter of the litigation.
34. It is suggested by counsel for the petitioner that if the assertion made by respondents 1 and 2, that the petitioner and the 3rd respondent are fighting a collusive action is true, they may sue her later for setting aside the decree. Apart from possible technical objections to which such a suit might be open, the policy underlying the jurisdiction of the court to make declaratory decree cannot be ignored. It is the very object of that procedure that questions of this kind should be adjudicated upon at the earliest opportunity before evidence bearing upon them is lost. That purpose will be undoubtedly defeated by holding that, perhaps decades afterwards, this very question should be tried again. Even to avoid collusion between the petitioner and the 3rd respondent, it is just and proper that respondents 1 and 2 should be added as defendants in the suit.
35. Before considering the other contentions of the petitioner, it will be convenient at this stage to refer to a contention raised by Mr. Rajah Iyer, appearing for the 3rd respondent. He has submitted that under Mohammadan Law, an acknowledgment has the effect of validating a marriage and that therefore the admission made by the 3rd respondent in his written statement, regarding his marriage with the petitioner and also that the three daughters of the Page: 853petitioner were born to her by him, puts an end to the controversy and that it is not open to the 1st and 2nd respondents to impeach the status of the petitioner.
36. It is true that marriage can be persumed from the fact of an acknowledgment by the man of the woman as his wife. Marraige may be established by direct proof. It will be presumed, in the absence of direct proof, from (a) prolongedland continual cohabitaion as husband and wife or (b) the fact of the acknowledgment by the man of the paternity of the child born to the woman provided all the conditions of a valid acknowledgment are fulfilled, or (c) the fact of the acknowledgment by the man of the woman as his wife. But if it is definitely proved that there was no marriage at all between the parties when the children were begotten, in other words, if marriage is disproved, the issuse would be the issue of fornication and they could not possibly be legitimated by acknowledgment vide Mulla's Muhammadan Law, page 238,.
37. The leading case on the subject is Muhammd Allahdad Khan v. Mohammad Ismail Khan,1 a case which has been followed by courts throughout India and approved by the Privy Council. There, Mahood, J., stated the law as follows:
“Although according to the Muhammadan Law, ikrar or acknowledgment in general stands upon as much the same footing as an admission as defined in the Evidence 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 recognised by the Muhammadan law as a means where by 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 legitimate 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. Acgnowledgment 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.”
38. In Habibur Rahman Chowdhury v. Altaf Ali Chaudhury2 Lord Dunedin summed up the law as follows:
“A claimant son who has in his favour a good acknowledgment of legitimacy is in this position: The marriage 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, he onus is on those who deny a marriage to negative it in fact.”
39. To the same effect is the judgment of the Privy Council in Mohabbat Ali Khan v. Mahomed Ibrahim Khan3 where their Lordships stated that “the presumption Page: 854is no doubt rebuttable, and if there is proof aliunde on the subject to the effect that there was no such marriage in fact, the same position is reached if no such marriage has been possible.” It is therefore open to respondents 1 and 2 to adduce evidence bearing upon the issue of marriage and to establish, that there was no marriage. In any view of the matter, the declaration as to the status of the petitioner being a judicial act, ought not to be founded on admissions but on evidence.
40. 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 exeression ‘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 included 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 or controversy is kept alive. Even after the filing of the written statement the petitioner requested the court to record the evidence of the Mowlvi Saheb who is said to have officiated at her marriage with the 3rd respondent. His evidence was recorded on the 27th April 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.
41. 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. Or. 1, Rule 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.
42. 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. Page: 855I 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.
43. Mr. Ramaswami Ayyangar has submitted that the order of the lower court has been made in the exercise of its discretionary jurisdiction, and relying upon the decision of the Supreme Court in Keshardeo Chamria… v. Radha Kishen Chamria & Ors.…* 1953-I M.L.J 100, he has contended that it is not open to this Court to interfere with the order in as much as there has been no illegal or irregular exercise of jurisdiction by the lower court. Having regard to the view taken by me on the merits, it is not necessary to consider these contentions.
44. In my opinion, therefore, the order of the court below is proper and there are no grounds for interference in revision. The civil revision petition fails and is dismissed with costs of respondents 1 and 2.
Ch. R.
45. Revision dismissed.