SHRI USHA CHARAN NASKAR Vs. SMT. NIVA NASKAR

JUDGEMENT

(1.) This application raised an important point in the disposal of Matrimonial causes. The respondent Smt. Niva Naskar claiming to be the legally married wife of one Usha Charan Naskar (since deceased) instituted a suit for divorce inter alia on the grounds of cruelty and desertion. In the said suit, the husband Usha Charan Naskar (since deceased) denied his marriage with the plaintiff/respondent. Specific defence was taken by Usha Charan Naskar (since deceased) that he was never married to the plaintiff/respondent and in fact, the present applicant was his legally married wife. Issues including the grounds of cruelty and desertion were framed by the trial Court. Out of those issues, two of which are important for the decision of this application, run as under:-

(2.) Before we proceed further, we may keep it on record that Smt. Jharna Haider, the applicant herein was, however, not made a party in the said matrimonial proceeding, although issue involving the marriage between the applicant - Smt. Jharna Haider and the deceased Usha Charan Naskar was framed. The trial Court on the aforesaid issue regarding the marriage between Usha Charan Naskar (since deceased) and the plaintiff/respondent came to a conclusion that there was a valid marriage between the plaintiff/respondent and the deceased Usha Charan Naskar. So far as the other issue was concerned, the trial Court, however, held that in view of the finding arrived at by it on the question of validity of the marriage between the plaintiff/respondent and the said Usha Charan Naskar (since deceased), issue regarding the marriage between the applicant Smt. Jharna Haider and Usha Charan Naskar (since deceased) need not be gone into. So far as the grounds of divorce between the plaintiff/respondent and the deceased Usha Charan Naskar were concerned, the suit was decreed by the trial Court. Usha Charan Naskar (since deceased) preferred an appeal against the aforesaid decree for divorce. Usha Charan Naskar (since deceased) died during the pendency of this appeal. Now on the death of Usha Charan Naskar, Smt. Jharna Haider claiming to be the wife of Usha Charan Naskar . I (since deceased) has made this application for her addition and/or substitution in place of the deceased Usha Charan Naskar that is to say, by filing this instant application, the applicant has sought for leave of the Court to continue with the appeal. The question that has now arisen for our decision is whether the applicant should be permitted to continue with this appeal on the footing that she is vitally interested in the proceedings in this appeal, that is to say whether she should be permitted to continue with the appeal when Usha Charan Naskar who was the appellant in this appeal had died.

(3.) In our view, in the facts and circumstances of the case, the applicant Smt. Jharna Haider must be permitted to continue with the appeal. It is true that at the present stage, Smt. Jharna Haider, the applicant cannot be considered to be an heir of the deceased Usha Charan Naskar (since deceased) because her marriage with Usha Charan Naskar (since deceased) is disputed and not admitted by the plaintiff/respondent, although Usha Charan Naskar (since deceased) in his defence in the trial Court admitted that he had married the applicant. Order 22 of the Code of Civil Procedure deals with deaths, marriage and insolvency of parties. Order 22 Rule 4 of the Code of Civil Procedure provides a procedure to be adopted in case of death of one of several defendants or of sole defendant. Rule 4(I) of Order 22 of the Code of Civil Procedure says that where one or two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased-defendant to be made a party and shall proceed with the suit. From a plain reading of Order 22 Rule 4 of the Code of Civil Procedure, it is quite apparent that a legal representative can make an application on the death of one I or more defendants or on the death of sole defendant. "Legal Representative" has been defined in Sec. 2 sub-section (11) of the Code of I Civil Procedure which means a person who in law represents the estate of a deceased person, and includes any person who inter meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. On a conjoint reading of Order 22 Rule 4 and Sec. 2 sub-section (11) of the Code of Civil Procedure which defines "Legal Representative", we have no hesitation in our mind to hold that only a legal representative can be substituted on the death of a defendant or the appellant as the case maybe. Let us first consider whether in the facts and circumstances of the case, the applicant can be considered to be a "Legal Representative". As noted herein earlier, a "Legal Representative" means a person who in law represents the estate of a deceased person and includes any person who inter meddles with the estate of a deceased person. In our view, the applicant can be considered to be a "Legal Representative" as the husband admitted the applicant as his legally married wife who in law must represent the estate of the deceased and who inter meddles with the estate of the estate Therefore, in our view, as a "Legal Representative", the applicant can be added or substituted in place of the deceased Usha Charan Naskar. I Even assuming that the applicant" cannot be considered to be a "Legal Representative" of the deceased, then also in the facts and circumstances of the case, we are of the firm opinion that the applicant must be added in the present appeal in the exercise of our power under Order 1 Rule 10 read with Sec. 151 of the Code of Civil Procedure. It is true that a matrimonial cause comes to an end on the death of one of the spouses as the said cause is of personal nature. But, in the present case, admittedly, the status of the plaintiff/respondent is involved along 11 with the applicant. If the applicant is allowed to proceed with the appeal and at the time of hearing of the appeal if it is found in appeal that the finding of the trial Court as to the validity of the marriage between the plaintiff/respondent and Usha Charan Naskar (since deceased) was not correct that is to say there was no valid marriage between the plaintiff/respondent and Usha Charan Naskar (since deceased), the question of granting a decree for divorce to the plaintiff/respondent on the grounds of cruelty and desertion will not arise at all, although the applicant was not made a party in the matrimonial suit and in fact, an issue was raised by the Court as to whether there was any marriage between the applicant and the deceased Usha Charan Naskar. If the applicant succeeds after being added in the appeal then the marriage as claimed by the plaintiff/respondent would be rendered invalid. In that event, the suit filed by the plaintiff/respondent would be dismissed and it would be open to the applicant to take appropriate steps in respect of the estate of the deceased Usha Charan Naskar on a declaration that she was a legally married wife of the deceased Usha Charan Naskar. If that suit is filed by the applicant, the question of adding or contesting the said suit by the plaintiff/respondent would not arise at all in view of the fact that in the present appeal, the respondent was found not to be a legally married wife of the deceased Usha Charan Naskar. Therefore, we are of the view that the applicant was vitally interested in representing the litigation that is the First Appeal. On the other hand, if the appeal is allowed to be abated, in that case, the decree passed by the trial Court would remain valid and it would not be open to the applicant to challenge the said decree in any colateral proceeding in view of Sec. 41 of the Evidence Act. Therefore, in our view, in the peculiar facts and circumstances of the case and in view of the admitted fact that the deceased Usha Charan Naskar himself in his written statement a admitted the applicant as his wife and denied the marriage between him and the plaintiff/respondent, we are of the view that the present applicant must be added in the present appeal. Accordingly, we allow this application and permit the applicant to proceed with this appeal in accordance with law. There will be no order as to costs. Bhattacharjee, J. : I agree.