1. This is a second appeal arising out of a suit of a somewhat unusual character. The suit was brought by a husband and wife who claimed to be the parents by adoption of a little boy called Giga, otherwise Rekhab Das. This child, we are told, was born in January 1940, and could therefore now be a little over five years old. The defendants to the suit were the natural mother and father and what the plaintiffs claimed was a declaration under Section 42, Specific Relief Act, that they were the duly constituted parents by adoption of this child. The way in which the adoption is said to have come about is that on 15th January 1940, when the baby boy was only three days old, an instrument of adoption was executed by the natural parents giving the child to the plaintiffs in adoption. The child was then duly handed over to its adoptive parents. At some date in April 1941, the natural parents are said to have taken the child away and since that date the child has remained, and is now, in the custody of the natural parents. The sequel to the removal of the child by the natural parents from the custody of the plaintiffs was that the plaintiffs at once applied to the District Judge to be appointed guardians. These proceedings were transferred to the Civil Judge, and the Civil Judge, instead of dealing with the matter himself, said that he would wait until the plaintiffs had obtained a declaration, of their rights from a civil Court. It was in that way that this suit came into existence and was started by a plaint filed on 7/8th July 1941.
2. For the reasons which I shall explain in a. moment, I think it unnecessary to go into the merits of the matter. The learned Munsif of Hathras - the original Judge - passed a decree on 31st March 1942 making the declaration asked for to the effect that the child had been duly adopted by the plaintiffs. This, decree was affirmed in appeal by the Additional Civil Judge of Aligarh on 9th December 1942. The defendants the natural parents-came to this Court in second appeal and on 27th. March 1944 it was referred to this Bench. The first point which has been raised by the appellants has been the point that a declaration of the legal effect of the instrument of adoption and of what took place in 1940 is a matter which must - or, at least, may-affect, not only the status, but the interests of the minor child. It is appreciated that no declaration as between the two sets of parents would technically bind the minor, if at any time he challenged the findings on the point. But, as the appellants put it, there is a much broader principle involved. The Court, which, in safeguarding the interest of minor children is exercising its jurisdiction on behalf of the Crown as parens patrice has a duty, and it is its invariable practice to take every precaution to see that the interests of a minor child are not, or may not be, prejudiced. It may well be that, by taking appropriate proceedings at a later stage of its life, the child, if it has the means and opportunity to take those proceedings, may possibly be able to undo the mischief of any mistake that it has made now. But that is not the same thing as insuring, as far as possible, that the interests and the legal rights of the child are fully considered in the initial stage.
3. That is one way of putting it. The other way of putting it, as has been pointed out by Sir Barnes Peacock in a case I shall refer to in a moment, is that, in making a declaration under Section 42, Specific Relief Act, the Court is exercising its discretion. It is not bound to make that declaration. The least, therefore, that it will insist on is that, in determining whether it will exercise its discretion or not, it must have before it all those parties on whose behalf there may be something material to be said. The case referred to is the case before the Judicial Committee of the Privy Council in Pirthi Pal Kunwar v. Guman Kunwar ('90) 17 Cal. 933. Their Lordships there were considering a case in which a declaration was being sought that a certain adoption was void. But in this case, the adopted child had been made a party. Sir Barnes Peacock referred to the observations of the Board which had been made in the earlier case in Sreenarain Mitter v. Kishen Soondery Dassee ('73) 11 Beng. L.R. 17l at p. 190:
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 relief prayed for. There is so much more danger (in India) than here of harassing and vexatious litigation, that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.
4. We infer from that passage that it is unlikely that the Board would have made a declaration in that suit unless the minor had been a party to the proceedings. To the same effect, in principle, are the cases in Bai Shri Vaktuba v. Agarsinghji Raisinghji ('10) 34 Bom. 676 and Chinnsami Mudaliar v. Ambalavana Mudaliar ('06) 29 Mad. 48. In the view I have formed, it could not be right for any Court to make a declaration which may-I do not go even so far as to say must-involve serious consequences affecting a minor without that minor being before the Court. Especially is that so when the jurisdiction being exercised is a discretionary jurisdiction. I do not intend to decide that the minor, in this case, was a 'necessary' party. That can be left open. It is enough for me to say that, in my judgment, he was certainly not only a 'proper' party, but a party whose presence the Court in the circumstances would not be prepared to dispense with.
4. In my judgment, therefore, the proper order in this case is that the decrees of the lower Courts should be set aside. The Court will order under Order 1, Rule 10 (2), Civil P.C. that the minor Giga, otherwise Rekhab Das, should be joined as a defendant to the suit. The suit will then be sent back under Order 41, Rule 23 to the Court of the first instance to be tried afresh as now constituted. The first step to be taken on the suit reaching that Court on remand will be that a guardian ad litem will have to be appointed for the new minor defendant. I desire to point out for the benefit of the learned Munsif who may have to deal with that application that he must be careful, to exercise his jurisdiction in the matter of appointing the guardian with great circumspection and in close consultation with the rules contained in the schedule to the Civil, Procedure Code. He will have carefully to consider who is the proper person to be appointed guardian ad litem; and, though I do not wish to influence his discretion in any way, he must, among other things, consider the propriety of appointing an independent advocate as guardian ad litem. The learned Judge will, of course, be at liberty to take such fresh evidence as the parties offer and. he considers proper. In the matter of costs I should suggest that the proper order is that, the costs of the proceedings up to and including today be costs in the suit now to be heard before the Court of the first instance.
Wali Ullah, J.
5. I entirely agree and have nothing to add.
6. For the reasons recorded in our judgments, we set aside the decrees of the Courts below and remand the case under Order 41, Rule 23 to the Court of first instance for a fresh trial. Under Order 1, Rule 10(2), Civil P.C. we further direct that the minor, Giga, otherwise Rekhab Das, be added as a defendant to the suit. As to costs, we order that the costs of the proceedings up to and including today be made costs in the reconstituted suit in the Court of first instance.