JUDGMENT Binod Kumar Roy, J. The petitioner is aggrieved by an order rejecting her petition dated 29.9.1986 by which she had prayed to expunge the name of defendant no. 3 from the plaint. 2. The petitioner (Plaintiff) filed the suit in question for eviction of the opposite party no. 1 and 2 (Defendant nos. 1 and 2) on the grounds of default, personal necessity as well as for recovery of arrears of rent showing them as defendant 1st party. She alleged that defendant no. 3, Nathuni Sah, her father in law was married with Lakshminia Devi, the only issue of one Bali Sah. Ball Sah had kept the plaintiffs mother and father in laws in his own house where the plaintiffs husband was born and brought up. In the year 1949 Bali San purchased an old house in the name of Lakshminia. Lakshminia, with the advice of her husband, Defendant no. 3, transferred the said house to her daughter in law the plaintiff by a registered deed of gift dated 24.9.1971 and she came in possession of the said property. Her name was also mutated. She stated paying rent. She also started dealing with the property. In March, 1977 the southern portion of the house was given in tenancy to Defendant no. 1. Defendant no. 1 along with his wife, defendant no 2, and their children started residing therein from 1st March, 1979. As per the terms of the tenancy defendant no. 1 also started paying rent of every month by the last day but rent till September, 1983 was only paid. Defendant no. 1 and 2 are thus liable for eviction. The plaintiff has got four sons and two daughters. Her sons are sitting idle and the suit premises is also required for doing business by them. The plaintiff also impleads defendant 2nd party as such by way of abundant caution. 3. The defendant no. 3, however, alleged that the deed of gift dated 4.9.1971 was a farzi and showy transaction executed in the name of his daughter in law whose name was also allowed to be mutated to give a colour so that the deed of gift could not be declared farzi by the money lenders. In fact on 5.5.1968 he had given the disputed property to defendant no. 2, though orally, in mortgage and on 15.2.1984 also executed a sale deed. In fact on 5.5.1968 he had given the disputed property to defendant no. 2, though orally, in mortgage and on 15.2.1984 also executed a sale deed. He also alleged that his son had become a bad character and to save the property the deed of gin for that reason also executed as farzi. 4. Defendant nos. 1 and 2 (Opp. party nos. 1 and 2) denied relationship of landlord and tenant asserting that the property in question was in mortgage with defendant no. 2 which was later on purchased. Thus the suit is liable to be dismissed. They also asserted that the deed of gift was farzi of defendant no. 3 in the name of the plaintiff. 5. Defendant no. 3 died on 3.1.1986. The petitioner filed an application dated 29.9.1986 for expunging his name. Defendants 1st party filed a rejoinder and opposed the prayer of expunction. 6. The learned Munsif by the impugned order rejected the petition aforementioned on two grounds (i) Heirs of Defendant no. 3 were not substituted within time prescribed. (ii) Defendant no. 3 had dubbed his deed of gift as showy and farzi and therefore he was a necessary party. He also held the suit as having abated. 7. Mr. Ganpati Trivedi, learned counsel for the petitioner assailing the impugned order submits as follows : (i) The learned Munsif has completely misconceived the legal position emerging out of sections 122 and 123 of the Transfer of Property Act. He failed to appreciate that unless the gift deed is set aside by defendant no. 3 he could not have transferred the property in question during the pendency of the suit in favour of defendant no. 2 and thus the transfer made in favour of defendant no. 2 was null and void. The deed of gift was not only registered but handed over to the petitioner. In the said view of the matter, it could not be collaterally challenged by defendant no. 3 as sham and farzi or its validity. Even the plea that the deed of gift was sham and farzi, in view of the Benami Transactions (Prohibition) Act, 1988, which is retroactive in its character, is no longer entertain-able. (ii) The learned Munsif has also failed to appreciate that in the suit in question, which was under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the title of the petitioner qua defendant no. (ii) The learned Munsif has also failed to appreciate that in the suit in question, which was under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the title of the petitioner qua defendant no. 3 was not involved rather it was a suit simpliciter for eviction of defendant nos. 1 and 2 on the grounds of personal necessity and default contemplated under section 11 of the Act. In the said view of the matter, defendant no. 3 was merely a proforma party as stated in the plaint. (iii) In any view of the matter, the court below has completely misconceived the meaning of the word legal representative defined under section 2 (11) of the Code of Civil Procedure which means a person who intermeddles with the estate of the deceased, and Defendant no. 2 having claimed herself to have acquired the property from defendant no. 3 by virtue of the sale deed, being already on the suit there was no question of abatement of the suit. No estate of defendant no. 3 having been left out from the purview of the suit the prayer of the petitioner to expunge the name of the defendant no. 3 was absolutely justified. 8. Mr. Narmadeshwar Jha, learned counsel for the opposite parties submits as follows: (i) The provisions of the Benami Transactions (Prohibition) Act has got no application in this case and in the instant case the question of benami is not involved. (ii) It does not appear from the impugned order that the original deed of gift was handed over to the plaintiff petitioner and thus this submission should not be considered by this court. Besides, the validity of the gift has to be decided in the suit itself along with its farzi character. (iii) The sub mission that the defendant no. 2 comes within the purview of the word legal representative and thus there was no question of abatement is correct and the court below has committed an error in rejecting the petition of the petitioner. 9. The third submission of Mr. Jha, which is his concession, in my view, is correct. The word legal representative defined under sub-section (11) section 2 of the Code means a person who has intermeddled with the estate of the deceased which the defendant no. 2 claims herself to be on the basis of her sale deed. 9. The third submission of Mr. Jha, which is his concession, in my view, is correct. The word legal representative defined under sub-section (11) section 2 of the Code means a person who has intermeddled with the estate of the deceased which the defendant no. 2 claims herself to be on the basis of her sale deed. I, therefore, need not decide the other submissions to avoid prejudice of the parties at the trial. 10. Thus the order in question is vitiated account of an apparent jurisdictional error. It is accordingly set aside and this application is allowed. 11. The learned Munsif is directed to proceed with the hearing of the suit in accordance with law after expunging the name of defendant no. 3. In view of the fair attitude of Mr. Jha, there shall be no order as to costs.