Married Daughter Cannot Continue In Deceased Mother’s Appeal Of Maintenance Under Hindu Adoption & Maintenance Act: Bombay HC

The Division Bench of Justice Ravindra V. Ghuge and Justice Y.G. Khobragade held that the right to maintenance, in this case, was in personam and not in rem, and the right to sue does not survive in favor of the married daughter of a deceased woman in the matter of maintenance.

"...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," the Bench held.

The applicant, who was the married daughter of the original appellant and respondent, filed the present application under Order 22 Rule 1 & 2 of the Code of Civil Procedure seeking permission to be brought on record as the legal heir of her deceased mother-appellant in the appeal for enhancement of maintenance.

The legal issue that fell for consideration was whether the right to sue survived/lies with the legal heirs of the deceased appellant in the appeal for enhancement of maintenance under the personal law, i.e., Hindu Adoption and Maintenance Act.

Advocate S. B. Ghatol Patil appeared for the Applicant and Advocate S.S. Bora appeared for the Respondent.

The Court recorded that the right to claim maintenance is an individual prerogative right granted under the personal law, the Hindu Adoption and Maintenance Act. It is not a proprietary right that devolves to the legal heirs of the wife or husband. Order 22 Rule 1 states that the death of the plaintiff or defendant does not cause the suit to abate if the right to sue survives. The phrase "right to sue survives" in this context refers to the right to seek relief.

The Court referred to the case of Goutami Devi Sitamony v. Madhavan Sivrajan (AIR 1977 (Ker) 83), wherein the the Full Bench held that rights intimately connected with the individuality of the deceased would not survive.

The term "Right in rem and right in personam" was considered by the Supreme Court in the case of R. Viswanathan v. Syed Abdul Wajid (1963 AIR 1). The right in Rem presupposes a duty to recognize the right imposed on all people in general, while a Right in Personam presupposes a duty imposed on a specific person or class of persons. Relying on this precedent the Court stated that-

“the rights may be either in personam or in rem. A claim-right in personam co-relates to a duty of a person, while claim-rights in rem corelate to duties in principle incumbent on everyone. A right enjoyed by one thus co-relates to a duty cast on the part of others.”

In the case of M. Veerappa .v. Evelyn Sequeira and ors., AIR 1988 SC 506, the Supreme Court had held that when a plaintiff dies during the pendency of a suit or appeal, the plaintiff's position is reverted to the original status before the trial court. However, this doctrine does not apply if the injury caused to the deceased had tangibly affected his estate or had caused an accretion to the wrongdoer's estate. The Court also referred to the cases of Rustomji Devabji v. W.H. Nurse (AIR 1921 Mad 1) and Ratanlal v. Baboolal to support this principle.

In Krishan Singh .vs. Mathura Ahir, AIR 1980 S.C. 707, it was clarified that the right to sue means the right to bring a suit asserting the same relief that the deceased plaintiff had ascertained at the time of their death.

The Court concluded that in the present case, the applicant, being the married daughter of the deceased appellant and respondent, sought to be brought on record as a legal representative for enhancement of maintenance under the Hindu Adoption and Maintenance Act. However, she has the right to recover arrears of maintenance granted in a previous judgment and order against her father/respondent after obtaining a succession certificate from the competent court of law.

Consequently, the application was rejected, and the appeal was abated.

Cause Title: Jayshree & Ors. v. Satyendra

Click here to read/download the Order