Mitter and Norris, JJ.
1. This rule was argued before us on Tuesday last, Mr, O'Kinealy showing cause against it, and the Advocate-General supporting it.
2. The facts of the case, as stated in the affidavit of the petitioner, are as follows:
One Mirza Himmat, who was possessed of considerable property in British India, was killed in Turkish Arabia on 26th August 1884; he left four widows, viz., Mussamut Rabbaba, Mussamut Jhabhan, Mussamut Goharunnisa and Mussamut Azmatunnissa, together with a child or children by each. It was alleged by Mr. O'Kinealy that Mirza Himmat left a fifth widow, by whom he had four children; the Advocate-General alleged that the lady, Noorjehan Begum, had been divorced by Mirza Himmat in his lifetime. On 3rd September 1884, the children of Noorjehan Begum applied to the District Judge of Gya for a certificate under Act XXVII of 1860, in which they admitted that their mother had been divorced from their father. On 16th September 1884, Mirza Jurat, one of Mirza Himmat's sons by Mussamut Goharunnissa, also applied for a certificate, and he alleged that his father had divorced Noorjehan Begum. On 6th November 1884, Mussamut Rabbaba, who is a Persian lady, residing in Persia, preferred a petition to the Persian Consul at Baghdad, praying that her interests as widow and heiress of Mirza Himmat might be protected. This petition was forwarded to the Government of India, and found its way to the Judge of Gya on 15th January 1885. On 27th March 1885, Mussamut Rabbaba sent a petition to the Judge of Gya, and on 4th June 1885 sent him a telegram, to which telegram the Judge replied, advising her to send a vakalutnama to a pleader; she sent the vakalutnama, but before it reached Gya the Judge had, on 26th May 1885, disposed of the applications for a certificate and had granted it to Mirza Jurat. The Judge appears to have recognised the rights of Mussamut Rabbaba as an heiress to her husband, for he directed Mirza Jurat to hold Government promissory notes for Rs. 20,000 on her account.
2. On 25th July 1885, Mirza Jurat put in a petition before the Judge, in which he withdrew his former statement that Noorjehan Begum had been divorced by his father; and in breach of the Judge's order paid over to her Rs. 10,000 out of the Rs. 20,000 he had been directed to hold for Mussamut Rabbaba, Upon this Mussamut Azmatunnissa put in a petition alleging that Mirza Jurat, in making the payment of Rs. 10,000 to Noorjehan Begum, was.acting fraudulently and in breach of the security bond he had given, whereupon the Judge ordered him to take back the Es, 10,000 from Noorjehan Begum, which he did, On 11th September 1885, Mirza Jurat (in collusion, it was alleged by the Advocate-General, with Noorjehan Begum) instituted an interpleader suit against Noorjehan Begum and Mussamut Azmatunnissa in respect of the Rs. 20,000 in the Court of the Subordinate Judge of Gya.
3. On 8th October 1885, Mussamut Rabbaba put in a petition praying to be made a party to the interpleader suit. On 17th November 1885, Mussamut Azmatunnissa put in a petition admitting Mussamut Rabbaba as widow and heiress of Mirza Himmat, and offering no objection to her being made a defendant in the interpleader suit. Mirza Jurat and Noorjehan Begum opposed the application, and on 19th November 1885, the Subordinate Judge dismissed the application. His judgment was as follows: 'This is an application on behalf of one Mussamut Rabbaba to be made a party to an interpleader suit pending in this Court. The application is probably made as one under Section 32 of the Civil Procedure Code; but the suit is one of peculiar character; such suits are not common, and the special provisions made for them are those contained in Chapter XXXIII of the Civil Procedure Code. Such a suit is instituted when two or more rival claimants assert claims in respect of the same thing against a stakeholder, who in such circumstances institutes the suit to have the right of the different claimants determined. Here the applicant's right or claim is not admitted by the plaintiff, and so I do not think her to be a necessary party to this suit, If she has any right she can assert it in a, regular suit. I do not think it right to make this suit complicated by introducing in it parties whose rights are in dispute and who asserted no claim to the plaintiff. I refuse to admit this petition and it is accordingly rejected. This is no doubt an unfortunate judgment, and it is difficult to understand what the Subordinate Judge really means. The Advocate-General urged that the Subordinate Judge meant to say that the provisions of Section 32 had no application to interpleader suits, and were not capable of application to such suits. If we were satisfied that such was the Judge's meaning, we think we might reasonably have held that he 'had failed to exercise a jurisdiction vested in him by law,' and might have interfered under Section 622 of the Civil Procedure Code. But we do not think the Judge means to hold that Section 32 is not capable of application to intern-pleader suits. What we think he has held, and held erroneously, is that no person should be added as a defendant to an interpleader suit unless the plaintiff recognizes some right in the party who seeks to be added to share in the thing in respect of which the interpleader suit is brought. This is not 'failing to exercise a jurisdiction vested in him by law,' but simply putting an erroneous construction upon the provisions of an Act. We are, therefore, constrained, reluctantly, to discharge the rule, but we shall do so without costs. Mr. O'Kinealy, in the course of his argument, urged that Section 32 of the Civil Procedure Code did not contemplate the addition of a party upon his or her own motion, and in support of his contention he cited Badsha v. Nicol Flemingand Co. I.L.R. 4 Cal. 355 Parshadi Lal v. Ramdial I.L.R. 2 All. 744 and. Biswas v. Biswas I.L.R. 5 Cal. 882. In the first case the plaintiffs had purchased a cargo of rice, by sample, from the defendants, who had purchased it, by sample, from one Pestonjee Eduljee; the defendants applied to have their vendor added as a defendant, alleging that the question between the plaintiffs and themselves was the same as between themselves and their vendor. Pontifex, J., refused the application upon the ground 'that ha could not say that in the suit by the defendant against Nicol, Fleming & Co., the plaintiff ought to have joined Pestonjee Eduljee as a defendant; nor could he say that the presence of Pestonjee Eduljee was necessary in order to enable the Court effectually and completely to adjudicate and settle the question involved in the suit between Badsha and Nicol, Fleming and Co.' The question whether Pestonjee Eduljee might have been added on his motion, though he was hardly likely to make such a motion, was not considered. The case of Biswas v. Biswas was a suit for the partition of joint family property, and the mortgagees of the right, title and interest of the plaintiff applied under Section 32 of the Civil Procedure Code to be added as parties. Wilson, J. refused the application upon the ground 'that he did not consider their presence necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit,' No doubt the learned Judges are reported to have said 'that Section 32 does not contemplate any application by the person proposed to be added.' But we have the authority of the learned Judge to say that he did not mean to lay down as a matter of law that no party could be added to a suit upon his own application. In the case of the Oriental Bank Corporation v. Charriol No. 29 of 1882 Pigot, J., in an unreported judgment, delivered on 25th January 1886, deals exhaustively with this point (see the case reported on appeal I.L.R. 12 Cal. 642. He says : 'An objection was taken preliminary to the question as to the propriety of making the Banque parties; it was that Section 32 does not expressly provide that persons not parties to the suit may apply under the section, and the case of Biswas v. Biswas I.L.R. 5 Cal. 882 was referred to; if that case laid down that such an application could not be entertained, I should of course follow it, but I do not understand that this is so, and I find that in Vavasseur v. Krupp L.R. 9 Ch. Div. 351 Jessel, M.R. upon the application of the Mikado of Japan, made that sovereign a party-defendant under the English rule corresponding to this section' (i.e., Order XVI, Rule 13) 'and in Khadarsaheb v. Chotibibi I.L.R. 8 Bom. 616 and Vydianadayyan v. Sitaramayyan I.L.R. 6 Mad. 52 orders making persons defendants on their own application under Section 32 were affirmed. A similar order was made by Bayley, J., in Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy I.L.R. 8 Bom. 323 where that learned Judge refers to Campbell v. Holyland L.R. 7 Ch. Div. 166 where after decree in a foreclosure suit Jessel, M.R. made the purchasers after decree of the mortgagee's interest; parties-defendants upon their application, made ex parte; and also, upon the same application made a purchaser of the mortgagee's interest party-defendant.' We entirely agree with this judgment and have no hesitation in holding that a Court may, in the exercise of its discretion, add a party to a suit upon his own application.