The right to sue survives even after the death of one spouse if a decree of divorce has been passed against the other spouse, and the legal heirs of the deceased spouse can be substituted as respondents in the appeal.

S.K.Chattopadhyaya, J.

1. An interesting question has arisen in this case as to whether after decree of divorce is passed, ex-parte or bipartite against either of the spouses, the right to sue survive for the spouse against whom such decree has been passed by the Court even after the death of either of the spouses.

2. Mr. Laik and Mr. Banerjee, learned Counsel appearing for the respective parties, have frankly admitted that they could not lay hand on any decision of this Court, either for or against the proposition. However, whereas Mr. Banerjee, learned Counsel appearing for the appellant, has strongly relied on the decision in the case of Vadalasetti Sanjayamma V/s. Badalasetti Nagamma, , for his contention that even after the death of either of the spouses, during pendency of the appeal against a judgment of dissolution or divorce, the right to sue/survives and thus, legal heirs of the deceased spouse can be substituted, Mr. Laik, Counsel for the deceased-respondent, relying on a judgment of the Bombay High Court In the case of Suhas V. Manohar Pande V/s. Nanohar Shamrao Pande. reported In -- , urged that a judgment of divorce being a judgment of personem, after the death of the husband, as In the present case, the appeal filed by the wife automatically abates.

3. Before considering the points involved, the facts of the case may be granted in short. The deceased-husband got a decree for divorce against the appellant-wife by filing a petition under Sec. 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) and ground for divorce was that the wife voluntarily deserted the husband and stayed elsewhere for more than two years and finally she declined to stay with the husband. The trial Court, accepting the allegations of the husband, granted the judgment of divorce on 13.8.87, which has been impugned by the appellant-wife in the instant appeal by filing the same In the year, 1988. During pendency of the appeal, by filing a petition, one Nand Kumar Dey, brother of the deceased-husband, informed this Court about the death of sole respondent. This petition was placed for orders and on that occasion Mr. Laik, the counsel for the sole-respondent urged before the court to order dismissed of the instant appeal as the same has been abated on the death of one of the spouses namely, the respondent-husband.

4. In the case of Vadalasetti (supra), the point for consideration was as to whether after the death of one of the spouses any legal representative of the deceased can be lmpleaded for continuing the proceeding under Sec. 13 of the Act and as to whether a petition under Order XXII, Rule 4 of the Code of Civil Procedure, is applicable to the proceeding under the Act. A learned Single Bench of the Andhra Pradesh High Court, noticing various decisions of different High Courts as well as of the Supreme Court, has held that the Judgment dissolving the marriage is a judgment in rem and will not merely involve the personal status of the wife, but would involve her property rights and as such, legal heirs of the deceased spouse can be substituted.

5. The Division Bench of the Bombay High Court in the case of Suhas Manohar Panda (supra), in my view, has not differed with the decision of the Andhra Pradesh High Court, inasmuch as the said High Court has also held that the provisions of Order XXII of the Code will also be applicable in a proceeding under the Act. However, their Lordships were of the view that if the right to continue the appeal does not survive and the sole respondent having died then the appeal as a natural consequence must abatement has to be dismissed and no fresh duit could be brought on the same cause of action. Thus, this decision of the Division Bench also does not support the contention raised by Mr. Laik.

6. In the case of Ramsarup Das V/s. Rameshwar Das , the question arose as to whether In a case where the plaintiff suing to establish his personal right entitling him to possession of the prope