IMPORTANT POINTS
(1) Abatement of suit – Provisions of Order 22 Rule 1 & 2 CPC would apply only to case of creation, transfer or devolution of interest in nature of property and if the right to sue does not survive, there can be no question of bringing legal representatives on record.
(2) Maintenance – Right to claim maintenance under personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in personal nature – No right to sue survives to married daughter to claim for enhancement of maintenance in respect of deceased – Applicant has right to recover arrears of maintenance granted under Judgment against her father/Respondent after obtaining succession certificate from competent court of law.

ORDER

Y.G. Khobragade, J.—Heard the learned counsel appearing for the applicant and the Non-applicant, at length.

2. The applicant who is married daughter of the original Appellant and Respondent has filed present application under Order 22 Rule 1 & 2 of Code of Civil Procedure seeking permission to bring her on record being legal heir of her deceased mother-appellant in an appeal for enhancement of maintenance.

3. The legal issue which falls for consideration is that, whether the right to sue survives/lies with the legal heirs of deceased appellant in the appeal for enhancement of maintenance under the personal law i.e. Hindu Adoption And Maintenance Act?

4. The learned counsel appearing for the applicant canvassed that the present applicant is a married daughter of the deceased Appellant and Respondent. The marriage of her mother/Appellant and her father/Respondent solemnized on 06.12.1977. Initially, the marital relations between the appellant and respondent were cordial, but subsequently said relations became strained. Therefore, her mother (Appellant) and father (Respondent) started residing separately. Her Mother (Appellant) had filed petition bearing Petition-C No. 11/2017 under section 18 of the Hindu Adoption and Maintenance Act, 1956 before the Family Court, Nanded and prayed for maintenance @ Rs.1.50 lakhs per month. After conclusion of the trial, on 4th February, 2021, the learned Family court was pleased to pass the judgment and order and partly allowed said petition, directing the present Respondent (husband) to pay Rs.10,000/- per month. Due to dissatisfaction with grant of meager amount of maintenance, the appellant filed appeal under Section 19 of the Family Courts Act and prayed for enhancement of maintenance to the tune of Rs.1.50 lakhs. However, during pendency of the appeal, the appellant died on 13.05.2023. 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.

5. Per contra, the learned counsel appearing for the respondent (husband) canvassed that, the right to claim maintenance under the Hindu Adoption and Maintenance Act is restricted to legally wedded wife and children. 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. Hence, prayed for rejection of the application.

6. The learned counsel appearing for the respondent relied on case the case of Annaduri v. Jaya, 2023 OnLine Mad 2604, wherein it has been held that claim of arrears of maintenance of deceased wife is heritable right of legal heirs, however, right of future is not transferable. He further relies on case of Yallawa Vs. Shantavva, (1977) 11 SCC 159, wherein it has been observed that, so far as the contention of maintainability of the application of respondent-wife is concerned, it must be kept in view that petition of divorce was moved by the husband for getting his marriage with the respondent dissolved by a decree of divorce on the ground that the respondent deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. It is also to be kept in view that such petition for divorce can be moved either by the husband or the wife, as the case may be. To that extent it is certainly a personal cause of action based on one or more matrimonial misconducts alleged in the petition against the erring spouse. Consequently, in such proceedings before any decree comes to be passed if either of the spouses expires pending the trial then the personal cause of action would die with the person. Such civil proceedings would not aba