SRI RAJAH RAO VENKATA MAHIPATI GANGADHARA RAMARAO BAHADUR GARU Vs. SRI RAJAH RAO VENKATA KUMARA MAHIPATI SURYA RAO BAHADUR GARU

JUDGEMENT

(1.) This is an appeal from an order striking out the name of the 1st defendant on a petition under Order 1, Rule 10 for the amendment of the plaint. No separate appeal is provided under the Code from orders passed under this rule, but in this case the Subordinate Judge decided to strike out the 1st defendant s name on the ground that the plaint disclosed no cause of action against him and ordered the suit to be dismissed as against him. In these circumstances I think the order comes within the definition of a decree and is appealable as such. The facts are these : The 4th defendant is the widow of a junior member of the Pittapur family, and the Rajah of Pittapur the 1st defendant has recently brought a suit as next reversioner of the property in her enjoyment for a declaration that an adoption made by her is invalid. The widow, as one of the defences, contested the Rajah s claim to be the next reversioner and denied that he was related to her deceased husband. The present plaintiffs, who also deny the Rajah s relationship and claim to be themselves the next reversioners to the estate in the hands of the widow, sought unsuccessfully to be made parties to that suit for the purpose of establishing as against the Rajah that they are the next reversioners. Having failed in that attempt, they then instituted the present suit against the Rajah and the widow for a declaration that the Rajah the 1st defendant is not the nearest reversioner, or a reversioner at all, of husband of the 4th defendant; and for a further declaration that the adoption of the 2nd defendant by the 4th defendant was invalid. The 2nd and 4th defendants in their written statements have not challenged the plaintiff s claim to be the next reversioners, and indeed, it is their case in the suit brought against them by the Rajah that the plaintiffs and not the Rajah are entitled to that character. In these circumstances it is clear that the Rajah is not a necessary party to the suit as between the plaintiffs and the widow and the adopted boy, and that the suit against him cannot be supported unless it be held, as argued, that the plaintiffs are entitled to maintain a separate suit against the Rajah for a declaration that the plaintiffs and not the Rajah are the next reversioners of the deceased and that the latter is not entitled to usurp the character of next reversioner. Mr. C.P. Ramaswami Aiyar argued that the plaintiffs are persons entitled to the lawful character of next reversioners within the meaning of Section 42 of the Specific Relief Act, and that they are entitled under that section to bring a declaratory suit against the 1st defendant who questions it. The granting of the relief under that section is discretionary with the Court, and it appears to me that there IS a settled rule of practice against the grant of such relief when the only question for decision is which of two persons is entitled to the character of next reversioner at the date of the institution of the suit- -a decision which may serve no useful purpose, as both the claimants may be dead and a different person entitled to succeed when the succession actually opens. In the most recent case in Sand igar Singh v. Pardip Narayan Singh (1917) I.L.R. 45 Cal. 510 : 34 M.L.J. 67 Lord Parker of Waddington, delivering the Judgment of the Judicial Committee, stated that the point was simply whether, under the practice prevalent in India, such a declaration, that is, a declaration under Section 42, ought to have been made. In the present case, I think the Subordinate Judge was right in holding that, it ought not. Mr. Ramaswami Aiyar argued that the fact that the Rajah had brought a suit in the character of next reversioner made a difference, but his client has refrained, no doubt advisedly, from praying by way of consequential relief for an injunction restraining the Rajah from prosecuting the other suit. Whatever grounds the plaintiffs may have had for asking to be made parties defendant in the other suit, a matter not now before us, they ought not in my opinion to be allowed, either by reason of that failure or on any other ground, to maintain the present suit against the Rajah and the Subordinate Judge was right in dismissing it. The appeal fails and must be dismissed with costs. Seshagiri Aiyar, J.

(2.) I am of the same opinion. This appeal raises some interesting questions. The plaintiffs who are the appellants sued for a declaration that the 1st defendant is not the nearest reversiomer to the estate of one Ra|ah Venkata Rao and that he 15 not entitled to conduct any proceedings in respect of the said estate and for a further declaration that the adoption of 2nd defendant made by the 4th defendant to her husband the said Venkata Rao is not valid. The late Rajah of Pittapur had a brother named Rajah Venkata Rao. The latter before his death, it is alleged, gave his wife, the 4th defendant authority to adopt a son. She adopted the brother of the plaintiffs. The 1st defendant is the present owner of the Pittapur Zemindari. On the death of the last Zemindar his status as Aurasa son of the Zemindar was challenged. The High Court and the Judicial Committee without expressing any opinion on this question held that under the will of the previous Zemindar the 1st defendant was entitled to the estate as persona designata. This was in 1912, The P.C. decision was in 1899 [Ed.] In O.S. No. 55 of 1915 the present 1st defendant brought a suit for a declaration that the present 4th defendant was not entitled to adopt a boy to her husband. The present plaintiffs intervened and they wanted to be made parties to that suit. Their application was dismissed. In revision the High Court refused to interfere. That suit is now being tried. In substance the present plaintiffs contention is that as the 1st defendant is not the Aurasa son of the late Zemindar he is not the nearest reversioner to the estate of Rajah Venkata Rao and that consequently he has no right to bring a suit to declare that the adoption by Rajah Venkata Rao s widow is invalid. The Subordinate Judge in a carefully written judgment came to the conclusion that the 1st defendant s name should be struck out and that the prayer against him should be deleted. Against that order this appeal has been preferred.

(3.) A preliminary objection was taken by the learned Advocate-General against the maintainability of the appeal. His contention is that the order of the Subordinate Judge comes under Order 1, Rule 10, Clause 2 of the Civil Procedure Code and that no appeal is provided against it under Order 43. In a way the conclusion of the Subordinate Judge may be said to come within Order 1, Rule 10. But what we have to see is the substance of the order and not the form of it. In his order the Subordinate Judge examines the right of the plaintiffs to bring a suit like the present one and concludes having regard to certain authorities Which he has quoted, that such a suit would not lie. In my opinion this is an adjudication determining the rights of the plaintiffs to bring a suit of this nature; and his order is a " decree " as defined in Section 2, Clause 2 of the Civil Procedure Code. There is one other answer to this preliminary objection. 1 am disposed to agree with Mr. C.P. Ramaswami Aiyar who appeared for the appellants that unless the removal of the plaintiff or defendant leaves the suit intact Order 1, Rule 10 Clause 2 cannot apply. In this clause the words are : "The Court may order that the name of any party improperly joined whether as plaintiff or defendant be struck out." That is to say, the impropriety is in introducing a party who has no connection with the reliefs claimed in the plaint. Moreover Order 1, Rule 10 Clause 2 does not relate to the deletion of reliefs, but only to the striking out of parties. Consequently, where a substantial right has been adjudicated upon and where the party s name has been struck out on the ground that a suit against him would not lie and where a substantial relief claimed in the suit has been ordered to be deleted, I am of opinion that the Court has " conclusively adjudicated the rights of the parties with regard to a matter in controversy," and that therefore the order of the Subordinate Judge is a decree. The preliminary objection must therefore be overruled.