The right to sue does not devolve to the legal heirs of deceased appellant in the appeal for enhancement of maintenance under the Hindu Adoption And Maintenance Act: Bombay High Court
Title: Jayshree @ Pushpa and Anr. v. Satyendra
Decided on: 18th JULY, 2023
+ FAMILY COURT APPEAL NO. 35 OF 2021
CORAM: RAVINDRA V. GHUGE, & Y. G. KHOBRAGADE, JJ..
Facts of the Case:
The applicant who is married daughter of the original Appellant and Respondent has filed present application seeking permission to bring her on record being legal heir of her deceased mother-appellant in an appeal for enhancement of maintenance.
Her mother (now deceased) was living away from her father and had therefore, applied for maintenance of 1.5 lakhs p.m. and was receiving Rs. 10,000 p.m. Dissatisfied by the amount of compensation, she appealed again, but during the pendency, the mother died. Therefore, the cause of action survives and the applicant is having right to continue with the appeal. Hence, it is prayed for bringing the applicant on record being legal heir of the original appellant.
Issues
Whether the right to sue survives/lies with the legal heirs of deceased appellant in the appeal for enhancement of maintenance under the Hindu Adoption And Maintenance Act?
Contentions
The appellants prayed that the right would continue.
The Respondents contended that the right to claim maintenance is in the personal nature and cause of action comes to an end on the death of the said person who had claimed maintenance under the statute. Therefore, in present case cause of action ceases on death of the original Appellant (wife) and no right accrues to the applicant-married daughter to continue with the cause for enhancement of the maintenance. The “right to claim maintenance” is not a proprietary right which devolves to the legal heirs of the wife or the husband. Order 22 Rule 1 provides that death of the plaintiff or defendant would not cause the suit to abate, if right to sue survives.
Decision
The Court held that the present applicant was not minor and she was not dependent on income of the Appellant. Therefore, taking into consideration of 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.
However, the applicant being a legal heir of the deceased appellant, therefore, she has right to recover arrears of maintenance granted under Judgment and Order dated 4th February, 2021 against her father/ Respondent after obtaining succession certificate from the competent court of law.
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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law