1. The Writ petitioner was ordered to retire compulsorily on 28th October, 1975. Pending the writ petition, he died on 7th September, 1978. His spouse in the application stated she is the legatee under the last testament of the deceased executed 6th March, 1978. In the bequest she claims gratuity, pensions, postal cumulative deposit amounts, personal effects and immovable properties of the deceased. She, therefore, seeks to come on record in the writ petition. The application is resisted, inter alia, on the ground that it is not for this Court to interpret the testament of the deceased in Art. 226 proceedings. The petitioner should approach a civil court if she claims any right under the Will.
2. A learned single Judge of this Court directed the petition be heard by a Division Bench and consider the theory of 'rehabilitation of a dead man' in this application. Whether or not in a service writ petition LR application is maintainable was considered in Venkatachary v. State of A.P. 1969 (1) An. W.R. 1 in that it was shown how a relief in Art. 226 is different from relief in a suit and it was explained in a writ petition personal rights are dealt. The cause, therefore does not service the death of civil servant. Third parties including the legal representatives cannot seek relief as a successor even if there is infraction of any of their rights. Individual rights of such persons should be referred to a suit. The ratio in the case was reiterate in P. V. Sarma v. S. C. Railways Employees Co-operative Credit Society A.I.R. (1977) A.P. 319 to the same effect 'It is well settled that where the right is purely personal the right to sue does not survive, Actio Personalis Mortitur cum Persona.'
3. Similar question was considered by Rajasthan High Court in Keshavpuri v. Union of India 1980 (1) S.L.R. 215. That Court agreed with the view taken by this Court. The Punjab High Court in Manmohan Anand v. State of Punjab (1972) S.L.R. 852 and Gujarat High Court in Ibrahim Bhai v. State [1969-II L.L.J. 67] took a different view. These two cases were considered in the two decisions of this Court. The Allahabad case in Jagdish Prasad v. United Provinces Govt. 0044/1956 : AIR1956All114 arose in a suit, therefore strictly not on the point at issue.
4. The order of reference is 'theory of rehabilitation' may be considered by a Division Bench. Because of reference, we have allowed the learned counsel for the petitioner to argue to find out whether it is possible for this Division Bench to agree with the view taken by the Gujarat and Punjab High Courts. We mean no disrespect to the learned single Judge, who made the reference, if we hold the issue does not require any further consideration in this Court. Following the view of this Court, the petition are dismissed. No costs. No leave to Supreme Court.