ORDER
Bilal Nazki, J.
1. In a suit for declaration that divorce deed be declared null and void, following issues were framed :–
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the suit is liable to be dismissed due to non-joinder of necessary party? OPD
3. Whether the suit is to be stayed Under/Section 10, C.P.C. OPD
4. Whether the Divorce deed/Farkhati is null and void ? OPP
5. Whether the suit has not been properly
valued for purposes of court fee and jurisdiction? OPD.
2. The issues were decided by the learned trial court and this revision petition has been filed against the said order and three main grounds have been taken in this revision petition;
(1) That the Divorce deed was executed between the plaintiff-non-applicant and her husband. Since the husband has died, it would be a suit against a dead person, which is not maintainable.
2. The second ground of attack is that the defendants in the suit were not parties to the Divorce deed, therefore, the suit could not have been filed against them.
3. Thirdly it was averred that the suit is to be stayed in view of the fact that a prior suit was pending before some other court.
3. I have gone through the order of the learned trial court and the record.
4. Coming to the third objection first, in their written statement, the present petitioner has said that, “That the matter in issue is directly and substantively involved in another suit filed earlier by the plaintiff against the same defendants and which is pending disposal before the learned Munsiff, Jammu, hence this suit is not maintainable.”
5. No particulars of the suit have been given. On the other hand the learned trial Court has found that a suit was pending between the parties, which had been decided earlier, therefore, he decided this issue against the defendants on the ground that Section 10, C.P.C. was not applicable. Now in revision a plea has been taken that there is another suit before some court, particulars of which have not been given in the revision petition.
6. Coming to the first and second ground of attack, I find that the divorce deed between the plaintiff and her late husband is the bone of contention. There appears to be a deed of divorce executed by the late husband of the plaintiff which the plaintiff has challenged after the death of her husband. If the plaintiff able to show to the court that the divorce deed was not valid, she would certainly be entitled to have a share in the property of her deceased husband. On the other hand, if she fails in her plea which she has taken up in the suit and the divorce deed is held to be genuine and legal, she may be deprived of a share in the property of her late husband. Therefore, it is important for the plaintiff to have the matter tried by a competent court of law. The divorce between the spouses decides the rights of the person concerned who outlives the other with regard to the property of the deceased spouse, therefore, if a spouse has died and there is a divorce deed and it is challenged within the period of limitation, the suit would be maintainable, even if the spouse is dead, because with the death of a spouse, the matter does not come to an end but the living spouse looses the right in the property of the deceased spouse.
7. Now the only question to be determined would be as against whom such a suit can be filed and in my view all those persons are necessary party to such a suit who are likely to get benefited by the property by receiving a share in the property of the deceased to the exclusion of the living spouse, because if the divorce deed is held to be illegal and invalid it is at the cost of such persons that the living spouse may get a share in the property of the deceased spouse. On the other hand, if the divorce deed is held to be legal and valid, the living spouse may get a share in the property of dead spouse.
8. In these circumstances, do not find the suit between the parties is not maintainable. It is not a suit against a dead person, but only against those who are potential beneficiaries of the divorce deed.
9. The petitioners have taken another plea that they were not party to the divorce deed, therefore, they could not be parties to the suit as well. Petitioner, admittedly were not party to the divorce deed and they could not be parties to the divorce deed, but since they are likely beneficiaries of the divorce deed, therefore, they are necessary parties to the suit.
10. For the reasons given, I do not find any merit in this revision petition which is accordingly dismissed.