Bombay High Court: An application was filed by a married daughter of the original appellant and respondent, under Order 22 Rule 1 & 2 of Code of Civil Procedure seeking permission to bring her on the record being the legal heir of her deceased mother-appellant in an appeal for enhancement of maintenance. A division bench of Ravindra V Ghuge, and Y G Khobragade, JJ., held that the right to sue does not survive in favour of the applicant, who is a married daughter of the deceased but has right to recover arrears of maintenance granted against her father (Respondent) after obtaining succession certificate from the competent court of law.
The marriage of her mother and her father was solemnized on 06-12-1977. Due to relations being strained, her mother (Appellant) and father (Respondent) started residing separately. The mother filed a petition under section 18 of the Hindu Adoption and Maintenance Act, 1956 seeking maintenance @ Rs. 1.50 lakhs per month, however, the Family court directed the Respondent (husband) to pay Rs. 10,000/- per month.
Aggrieved by the order, the appellant filed an appeal under Section 19 of the Family Courts Act seeking enhancement of maintenance to the tune of Rs. 1.50 lakhs. However, during the pendency of the appeal, the appellant died on 13-05-2023. Thus, the applicant is seeking a grant to bring her on the record being the legal heir of the original appellant on the grounds that the cause of action survives, and the applicant has the right to continue with the appeal.
The issue under consideration is whether the right to sue survives/lies with the legal heirs of the deceased appellant in the appeal for enhancement of maintenance under the personal law i.e. Hindu Adoption and Maintenance Act.
The Court noted that Order 22 Rule 1 provides that death of the plaintiff or defendant would not cause the suit to abate, if right to sue survives. Therefore, on plain reading of the said provision, it appears that the provisions of Order 22 Rule 1 & 2 would apply only to the case of creation, transfer or devolution of interest in the nature of property and if the right to sue does not survive, there can be no question of bringing the legal representatives on record. The phraseology “right to sue survive ” used under Order 22 Rule 1 means right to seek relief. The general rule is that cause of action whatsoever existing in favour or against a person at the time of his death survives to or against his legal representatives.
The Court further noted that the right to claim maintenance under personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in the personal nature. It is an individual privilege of a person who is governed under the Personal Law. The right to maintenance is a right in personam or jus-in-personam. Under Section 18 of the Hindu Adoption and Maintenance Act, a Hindu married woman, and minor children are entitled for maintenance.
The Court observed that since the present applicant prayed for bringing her on record as legal representative of the deceased appellant, who claimed for enhancement of maintenance under the Hindu Adoption and Maintenance Act, and as such right of maintenance of the wife against her husband is in personam and not in rem, therefore, the right to sue does not survive in favour of the applicant, who is a married daughter of the deceased Appellant and Respondent.
The Court concluded that when the Appellant (deceased) had filed proceedings under Section 18 of the Hindu Adoption and Maintenance Act, the present applicant was not minor and she was not dependent on the income of the appellant. Therefore, taking into consideration the provisions of Order 22 Rule 1 & 2 of C.P.C., no right to sue survives to the married daughter to claim for enhancement of maintenance in respect of deceased Appellant.
The Court held that the applicant being a legal heir of the deceased mother, however, has no right to sue to claim enhancement of maintenance in respect of her deceased mother but has right to recover arrears of maintenance granted against her father after obtaining succession certificate from the competent court of law.
[Jayshree v. Satyendra, 2023 SCC OnLine Bom 1582, decided on 02-08-2023]
Advocates who appeared in this case :
Mr. S.B. Ghatol Patil, Advocate for the Applicant;
Mr. S.S. Bora, Advocate for the Respondent.
