The right to sue survives the death of the respondent and the heirs can be brought on record.

JUDGMENT - Desai S.K.J.-This is a Second Appeal filed from the decision given by the learned Assistant Judge, Dhule, in Civil Appeal No. 69 of 1976 on the District Court file, holding that the appeal before him had abated with effect from 8-7-1977. In order to understand the points in controversy the following facts may be noted.

2. The appellant before me is one Kamlabai who was married to Ramdas Ingale on 13-5-1956. A child, daughter by the name of Pratibha was born to the said couple on 7-8-1959. It appears that some time in 1962, according to the husband, the wife suffered from some illness and a matrimonial petition was filed by the husband in the Bombay City Civil Court at Bombay on the ground of wife's insanity or unsoundness of mind. On 10-4-1964 the said petition was withdrawn. Be~ween September 1965 and February 1968 Ramdas proceeded to the United Kingdom for further studies. After his return he filed a matrimonial proceeding viz. a petition for restitution of conjugal rights in the Court of the Civil Judge, Dhule. This proceeding was compromised. The wife submitted to a decree and it appears that for a few months there was actual cohabitation. Again, according to the husband, in January 1970 the wife became unwell and on 14-9-1971 Hindu Marriage Petition No. 10~ of 1.971was filed by the husband against the wife which was ultimately tried by the learned Civil Judge, Senior Division, Dhule. The husband had sought divorce on number of grounds. He has also sought judicial separation. All the allegations in the petition were denied by the wife. Necessary issues were framed. Evidence was led and ultimately the Court held as disproved the allegations of crueIty and desertion. It, however, held as proved that the respondent-wife was incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. This issue was thus answered in favour of the husband. The technical pleas raised on behalf of the wife based on the provisions contained in Order 23 and Order 2 of the Civil Procedure Code were negatived. Similar pleas as to delay and the husband taking advantage of his own wrong were also rejected and a decree of divorce dissolving the marriage was ultimately passed on 22-3-1976.

3. The aggrieved wife preferred an appeal to the District Court at Dhule. The said appeal came to be numbered as Civil Appeal No. 69 of 1976. It transpires that during the pendency of the said appeal the respondent husband (original petitioner) died on 8-7-1977. A rather piquant situation arose and the advocate for the appel1ant wife brought on record as the husband's heir and legal representative the child Pratibha. Subsequently in the appeal Ex. 32 (a purshis for compromise) was filed, but the same was not acted upon. Ultimately, the appeal came to be considered by the Assistant Judge who held that upon the death of the husband the heirs could not be brought on record and he also rejected the further argument that by reason of the death of the husband the original petition must be deemed to have abated. In the view of the learned Assistant Judge it was the wife's appeal which had abated. In his opinion, the order passed earlier on Ex. 25 bringing the heir of the husband pratibha on record was not a proper order. Accordingly, the learned Assistant Judge dismissed the appeal formally as iI1 his- opinion it abated on the death of the husband.

4. The aggrieved wife has filed this Second Appeal. As the legal posi-tion was not clear and as I wanted effective representation on both sides, I requested Mr. Dalvi to appear as amicus curiae and both Mr. Panse and Mr. Dalvi have rendered great assistance to me.

5. Before adverting to the two authorities referred to by the learned Assistant Judge it may be observed that a very curious position would arise if the view of the learned Assistant Judge were to be accepted as the correct view. In this case the wife has been found to be of unsound mind an

Click Here to Read the rest of this document