Case Note & Summary
This is an application filed by the father of the original appellant (husband) seeking permission to prosecute the appeal and to be brought on record in place of his son, who expired during the pendency of the appeal. The appeal was filed by the husband against the decree of divorce passed in favor of the wife. The respondent wife opposed the application, arguing that the right to sue does not survive after the death of the husband in a matrimonial appeal. The Court, relying on the Supreme Court decision in Smt. Yallawwa v. Smt. Shuntavva, AIR 1997 SC 35, held that the right to sue survives to the legal representatives in a matrimonial appeal as the decree affects property rights and status. The Court allowed the application, permitting the father to be substituted as the appellant and to prosecute the appeal.
Headnote
A) Civil Procedure - Substitution of Legal Representatives - Order 22 Rule 1 CPC - Right to Sue Survives - In a matrimonial appeal filed by the husband against the decree of divorce, the husband died during pendency. The father of the deceased appellant sought permission to prosecute the appeal. The respondent wife opposed, arguing that the right to sue does not survive. The Court held that the right to sue survives to the legal representatives in a matrimonial appeal as the decree affects property rights and status. The father was allowed to be substituted. (Paras 1-3) B) Hindu Marriage Act - Appeal - Survival of Right - Section 28 Hindu Marriage Act, 1955 - Legal Representatives - The Court relied on Smt. Yallawwa v. Smt. Shuntavva, AIR 1997 SC 35, to hold that in appeals arising out of matrimonial proceedings, the right to sue survives to the legal representatives of the deceased appellant. The father of the deceased husband was permitted to continue the appeal. (Paras 2-3)
Issue of Consideration
Whether the father of the deceased appellant can be permitted to prosecute the appeal and be brought on record in place of the original appellant in a matrimonial appeal under the Hindu Marriage Act, 1955.
Final Decision
The Court allowed the application, permitting the father Gopala Bansilal Nikhare to be substituted as the appellant and to prosecute the appeal.
Law Points
- Right to sue survives to legal representatives in matrimonial appeals
- Order 22 Rule 1 CPC applies
- father can be substituted as legal heir
