The legal heirs of a deceased husband can be brought on record as opponents or respondents in an appeal filed by the wife against a decree of divorce obtained by the husband, and the sisters of the deceased husband, who are Class-II heirs, can be brought on record as legal representatives since they are intermeddlers within the meaning of Section 2(11) of the Code of Civil Procedure.

1. THE present application has been made by the appellant-wife in the pending appeal being F. A. No. 18 of 1999 for bringing legal representatives of the sole respondent Subodh Kumar Ghosh, who was the husband of the appellant. The Trial Court having allowed the application of the husband for divorce and having got decree in respect thereof, the appeal was preferred by the wife against the said judgment and decree. It appears that during the pendency of the appeal the husband respondent died intestate on 29th October, 2003.

2. ACCORDING to the petitioner the said husband died intestate leaving behind the appellant as a sole surving Class-I heir of the schedule under section 8 of the Hindu Succession Act and accept the petitioner. The deceased also left behind his father Jogendra Nath Ghosh and his three sisters, namely, Mina ghosh, Gita Das Gupta (nee Ghosh) and Rani Das (nee Ghosh) as his legal representatives. In the present application prayer is being made for substituting and/or adding the said legal representatives of the deceased husband in place and stead of deceased and to bring them on record as respondents.

After considering the application and hearing the parties it appears to this Court that ostensible simple application legally involves very interesting and important question of law.

3. SINCE in the matrimonial appeal the respondent husband has died, one may reasonably wonder how there can be any substitution or addition of any person as respondent therein.

4. WE, however, need not be troubled with an investigation into such question any further as our attention has been drawn by the learned Counsel appearing for the petitioner to the decision of the Supreme Court in the case of Yallawwa vs. Shantavva, reported in AIR 1997 SC 35, by which the Supreme Court has clinched the issue and pronounced the position of law in no uncertain terms.

In paragraph 8 of the said reported it has been held by the Supreme court that after a decree of divorce is obtained by the petitioning husband against his wife she has right to file an appeal and such appeal does not abate on account of the death of the respondent-husband whether such death takes place prior to the filing of appeal or pending the appeal, and in such a case legal heirs of the deceased husband can be brought on record as opponents or respondents by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirmed either in appeal or under Order 9 Rule 13,cpc.

5. SUCH being the position in law the petition is not upheld. The appellant is certainly entitled to bring on records the other heirs of the husband.

6. AN affidavit has been filed apparently on behalf of Jogendra Nath Ghosh father of the deceased but affirmed by one of the sisters Smt. Gita Das Gupta contending inter alia, that the father can be brought into record, but the sister, cannot be so long the father is alive. The sister being Class-II heiress cannot be gone into.

The learned Counsel appearing on behalf of the petitioner, however, submits that the application which he had made is not for merely bringing the heirs on record by the legal representatives.

7. OUR attention has been drawn to section 2 (11) of the Code of Civil procedure, wherefrom it appears that legal representative also includes a person who is an intermeddle with the estate of the deceased.

8. IT has been submitted that the sister although may not be immediate heiress being Class-II heirs are suddenly intermeddles inasmuch as the sisters are certainly interested in denying the status to the appellant as wife and now widow of the deceased.

It has been submitted that a matrimonial suit is in the nature of a declaration of status also and in such a suit anybody who wants to deny the status of a person as wife suddenly comes within the meaning of intermeddlers.

9. AFTER considering the respective submissions of respective parties