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Judgment
K.P. Sivasubramaniam, J.—This appeal is directed against the judgment and decree of the II Additional District Judge, Pondicherry, in A.S.
No. 60 of 1985 confirming the judgment and decree of the Principal Sub-Judge, Pondicherry in O.S. No. 275 of 1981. Then 1st defendant in the
suit is the appellant in the above Second Appeal.
The suit was filed for a declaration that the Birth Certificate No. 222 of 1976, dated 26.2.1976 is null and void, for a declaration that no child
by name Dilcoumar Bionaimo was born to the 1st defendant through Saravattourayon Bionaimo and also for declaration that the judgment
obtained by the first defendant in O.P. No. 49 of 1978 on the basis of the fictitious birth certificate is null and void.
According to the plaintiff, she is the legally wedded wife of Bionaimo Saravattourayon. Their marriage was celebrated at Mairle Pondicherry as
per the provisions of Civil Code and 10 children were born to them out of the wedlock. They are under the custody of the plaintiff and One of the
daughters is not married. They are also under the custody of the plaintiff. The plaintiff''s husband was an officer in the French Army and after
retirement he was getting a pension from the French Government at Rs.10,000/- every quarter. The plaintiff''s husband died on 28.2.1978 at
Pondicherry and the plaintiff was entitled to get pension as his widow from the French Government and also for each of her minor children.
According to the plaintiff, the 1st defendant filed fraudulently and without the knowledge of the plaintiff and without impleading her an O.P. No. 49
of 1978 in the II Additional District Court, Pondicherry, for appointment of a guardian u/s 8(1) for a fictitious minor child Dilcoumar allegedly born
to her through the plaintiffs husband and for getting pension and arrears of pension for the said minor child and for permission to receive the
pension and arrears on behalf of the alleged minor child. The District Court granted a judgment and decree on 10.8.1978 as prayed for appointing
the 1st defendant as guardian of the fictitious minor Dilcourhar Bionaimo and permitting the 1st defendant to receive on behalf of the said minor
one-half of the pension to be paid to the plaintiff. According to the plaintiff, no such child was ever born to her husband by name Dilcoumar
Bionaimo on 26.2.1976.The document has been fabricated by the 1st defendant through the plaintiff''s husband. The 1st defendant is the wife of
one Narayanan and she had a son by name Suresh, born on 16.8.1975 and with a view to forge an imaginary and fictitious birth certificate the
plaintiff''s husband was induced to declare falsely on the instigation of the 1st defendant before the Commissioner to the effect that a son by name
Dilcoumar Bionaimo was born to him on 26.2.1976, through the 1st defendant, which child was recognised as an illegitimate child by the plaintiff''s
husband. The said birth certificate is a forged document and no child by name Dilcoumar Bionaimo was ever born to the plaintiff''s husband and the
1st defendant. Subsequently, on 29.2.1976, three days after the said declaration, the 1st defendant went to the Parish Priest of Pondicherry,
presented her own son as Dilcoumar Bionaimo and giving his date of birth as 6.8.1973, obtained a Baptismal certificate in the name of Dilcoumar
Bionaimo. The said Suresh was presented as Dilcoumar Bionaimo allegedly born on 6.8.1973 because at that time the imaginary child Dilcoumar
was only three days old. Subsequently, by producing the Baptismal certificate Suresh was admitted in the Registry as Dilcoumar Bionaimo born on
6.8.1973. The above two documents relate only to Suresh who was substituted as Dilcoumar Bionaimo. The 1st defendant has produced before
the District Court the birth certificate of the imaginary child Dilcoumar allegedly born on 26.2.1975 and obtained an order on 10.8.1978
appointing the 1st defendant as guardian of the imaginary child. The 1st defendant was also authorised to receive on behalf of the said fictitious
child an amount of Rs. 25,000/- as arrears of pension. The 1st defendant has produced the copy of the judgment in O.P. No. 49 of 1978 to the
French Treasury for obtaining pension and on account of this payment the plaintiff''s pension was reduced by 25%. The imaginary child was getting
on the basis of the judgment as pension, 25% of the pension out of the 50% pension due to the plaintiff and 10% of the arrears of pension due to
her. The order in O.P. No. 49 of 1978 was obtained by the first defendant by misrepresentation and fraud. The decree in O.P. No. 49 of 1978
passed without jurisdiction. The plaintiff filed LA. No. 603 of 1979 for recalling the judgment appointing the 1st defendant as guardian. But,
ultimately the Principal Judge passed an order holding that the question whether the minor Dilcoumar Bionaimo to whom the guardian was
appointed is a fictitious child or not was to be decided only by a separate suit. Hence, the suit.
In the written statement filed by the 1st defendant, the allegations contained in the plaint were denied. It was false to state that one Suresh was
substituted as Dilcoumar. It was equally false to state that the 1st defendant was the wife of one Gopalakrishnan or Narayanan. The O.P. was
allowed after the enquiry declaring the 1st defendant as guardian. The said Dilcoumar was born to late Sarvothurayon through the 1 st defendant.
The registration was carried out by the late Sarvothurayon himself and he himself had admitted the paternity of the child. He was also baptised. The
plaintiff has no right to question the paternity of the child when the father himself has registered the birth of the child and admitted before the
Competent Authority in writing under the French Law.
On a consideration of the said pleading and the oral and documentary evidence, the Trial Court found that the birth extract dated 26.2.1976
was not applicable to any male child of the first defendant through the plaintiff''s husband. Therefore, it was held Dilcoumar was not born to the 1st
defendant through the plaintiff''s husband. With the result, the suit was allowed as prayed for; On appeal also, the Appellate Court agreed with the
findings of the Trial Court and dismissed the appeal filed by the 1st defendant. Objection was taken on behalf of the appellant in the context of non
impleading of the minor child, which was also rejected by the Appellate Court.
Learned Senior Counsel appearing for the appellant/1st defendant contends that the very suit was not maintainable without impleading the minor
against whom the relief has been asked for Learned Counsel submits that the decree was to affect only the minor child and it was not possible to
grant any decree affecting the interest of a person who is not made a party in the proceedings.
In this context, learned Counsel appearing for the respondent contends that the plaintiff has only pleaded that the minor child is a fictitious person
and, therefore, the question of impleading such a fictitious person does not arise. I have considered this objection with reference to the provisions
of Order 1, Rule 9 of C.P.C. The Appellate Court, while dealing with this objection has observed that the objection has been taken for the first
time in the grounds of appeal. It is also further stated that under the French Law, the Municipality need not be made a party to a suit of the present
nature in the sense, Dilcoumar was always claimed by the plaintiff to be a fictitious person and there was no need to implead the said person in the
suit as a party.
Learned Counsel for the appellant also relied on a judgment of this, Court reported in Alangadu Immudi Aghora Sivacharya Ayira Vysia Mutt,
Nerinjjipottai Vs. Sankarasubramaniam and another, , in support of his contention that the suit filed without impleading the necessary party was not
competent and the objection can be raised even at the time of the Second Appeal. In that case, the suit pertained to a declaration and removal of
Matadhipati who was a minor child. The suit was filed without appointment of guardian and, therefore, in the Second Appeal a contention was
raised that such a suit was not competitor. The learned Judge held that since the objection goes to the very root of the matter, the objection can be
raised in the Second Appeal also and that the minor could not be impleaded without the appointment of guardian.
In this Second Appeal, the reasoning of the Appellate Court in rejecting the appellant''s contention of non-impleading of necessary parties as
well as the submission of the learned Counsel for the respondent, is to the effect that Dilcoumar is a fictitious person and, therefore, there was no
question of impleading a fictitious person as a party to the proceedings. I am unable to agree with the contention raised by the learned Counsellor
the respondent. In this context, it is pertinent to note that"" though Clauses (a) and (c) of the plaint prayer deal with the relief to declare the
registration of the birth and the decree in O.P. No. 49 of 1978 as null and void, Clause (b) seeks declaration that no child by name Dilcoumar was
born to the 1st defendant through Saravattouray on It is further stated in paragraphs 6 and 8 of the plaint that one Suresh who was born to the 1st
defendant has been projected as Dilcoumar and he was presented at the time of the baptismal proceedings also. It is true that in the plaint the
plaintiff would also state that the child was a fictitious child. The scope of a suit does not depend on the self-serving expressions used in the
pleadings. The Court has to look into the actual nature of facts alleged and relief sought for. It is necessary to record the entire allegations in the
plaint as well as the nature of the relief asked for. When the plaintiff has positively alleged that one Suresh who was born to the 1st defendant has
been projected as Dilcoumar wrongly, a duty is cast upon the plaintiff to have impleaded at least the said Suresh who is said to have impersonated
Dilcoumar.
It is also necessary to point out that in the very nature of the proceedings, the relief is directed against a particular individual and the declaration
sought for is to declare that he was not born to a particular individual. Such a prayer is sought for in the absence of a person who himself has taken
steps to carry out the registration. Therefore, in the absence of the person whose status the minor is sought to have affected, the suit cannot be
maintained. It is further pertinent to note that in paragraph 11 of the plaint, it is alleged that the imaginary child Dilcoumar was receiving pension
which was due to the plaintiff, on the basis of judgment in O.P. No. 49 of 1978. Therefore, the contention that Dilcoumar is a fictitious person
cannot be accepted. The essence of the plaint allegation is that one Suresh is being falsely projected and arrayed as Dilcoumar and mat he was
illegally declared as the son of Saravattpurayon and was receiving pension. It is the status and rights of that particular individual Suresh which are
ultimately affected. It would be unjust to grant such a decree in his absence and hence this objection touches the very root of the framing of the suit.
Therefore the suit is not maintainable in the absence of impleading the necessary party. In the said circumstances, it is not necessary for this Court
to go into the other allegations and findings rendered by both the Courts below The plaintiff is at liberty to file a properly constituted suit by
impleading the necessary party.
In the result, the appeal is allowed. The judgment and decree of the Court below are set aside. No costs. Consequently, C.M.P. No. 5850 of
1999 is dismissed.