Judgment :- These two appeals are by the same appellants, A.S.No.674 of 1985 arises the judgment and decree in O.S.No.90 of 1981 and the 1st appellant is the 1st defendant therein. In the said suit, the plaintiff Jayaraman, who is the 1st respondent in both appeals herein claimed l/4th share in the suit properties described in plaint schedules B, & E on the ground that the said properties are joint family properties of the family of the appellant and the said Jayaraman and two other sons Parvatha Udayar and Margasahayam, who are defendants 2 and 3 in the said suit. 2. A.S.No.1084 of 1987 arises out of O.S.No.23 of 1982 filed by the 1st appellant against above said three sons. In the said suit, the 1st appellant claimed that the above properties belonged to him exclusively and on that footing he prayed for the relief declaration and injunction with reference to those properties. 3. According to the 1st appellant, the said properties are his own separate properties, excepting items 5, 6 and 7 of B Schedule properties which he admitted as joint properties. 4. Since common issues were involved, both the suits were tried together and the trial came to the following conclusions; (1) Items 4, 9, 14 and 16 of B Schedule do not belong the said family at all (2) The case of 1st appellant regarding items 8, 10, 13 and 15 Schedule has not been proved and those items are the properties of the family (3). further case of the 1st appellant that items 1 and 2 of B Schedule and items 18 and 19 schedule are not joint family properties was not accepted. 5. Therefore, a preliminary decree was passed by the trial Court in O.S.No.90 of 1981 reference to (1) all the properties in B Schedule excepting the above said items 4, 9, 16 therein (2) C schedule properties (3) D schedule properties and (4) items 1 to schedule properties. Consequently O.S.No.23 of 1982 was dismissed. Hence the above two appeals by the 1st appellant. 6. While these appeals were pending, on 12.9.1988 the 1st appellant died. But, the said Parvatha Udayar filed C.M.P.Nos.5589 and 5590 of 1989 for transposing him as the appellant in the two appeals on the ground that his father has executed a registered Ex.B-39, dated 25.6.1985, bequeathing all his interest in the above said properties alone. 6. While these appeals were pending, on 12.9.1988 the 1st appellant died. But, the said Parvatha Udayar filed C.M.P.Nos.5589 and 5590 of 1989 for transposing him as the appellant in the two appeals on the ground that his father has executed a registered Ex.B-39, dated 25.6.1985, bequeathing all his interest in the above said properties alone. Since the truth and validity of the said will was opposed by Jayaraman, this passed an order dated 18.8.1989, calling for a finding from the trial court with regard truth and validity of the said will. Accordingly, the trial court went into the question, after recording the evidence of both the parties on the truth and validity of the above will, has submitted its finding. As per the said finding, the above said will is held to and valid. No doubt Jayaraman has filed objection to the said finding. However, by dated 20.2.1990, this Court allowed the said C.M.Ps. with the following observations: “In view of the prima facie finding given by the trial court, these petitions are to be on the basis of the registered will. It is open to the parties to agitate with regard genuineness of the will at the time of final hearing of the appeal. The petitions are with the above observation.” 7. Now before me, though the learned counsel appearing for Jayaraman contends that said finding was erroneous, he submits that he has no objection that if the said Parvatha Udayar is only allowed to represent the deceased 1st appellant in these two appeals only purpose of prosecuting these appeals. But the learned counsel for the 2nd appellant Parvatha Udayar however contends that this Court, in the light of the above said should go into the question of genuineness and validity of the said will conclusively proceeding itself and give a decision accordingly. But the learned counsel for the 2nd appellant Parvatha Udayar however contends that this Court, in the light of the above said should go into the question of genuineness and validity of the said will conclusively proceeding itself and give a decision accordingly. But, the learned counsel for Jayaraman contends that the said course suggested by the learned counsel for the 2nd appellant be a proper course in view of the scope of an enquiry under O.22, Rule 5, C.P.C. which alone the present enquiry in which the finding has been given would come, since on the death of the original appellant, the said Parvatha Udayar, one of the respondents both the appeals, sought to transpose himself as the 2nd appellant on the ground that the sole legatee under the above said will executed by the original appellant and consequently he is his legal representative. Both the counsel agree that the above finding has been given pursuant to O.22, Rule 5, C.P.C. 8. O.22, Rule 5, C.P.C. says that where a question arises before an appellate court whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, that court may, before determining the question direct any subordinate try the question and to return the record together with evidence, if any, recorded at trial, its findings and reasons therefor and the appellate court may take the same consideration in determining the question. The learned counsel for Jayaraman contends the finding given in the enquiry under O.22, Rule 5, C.P.C. could be only for prosecuting appeals. On the other hand, the learned counsel for the 2nd appellant contends that Court should go into the correctness of the said finding given by the court below Conclusively determine the truth and validity of the Will. In this connection he drew my attention recent decision in Sivagurunathan v. Balasubramanian, (1988)1 L. W.277. In decision, in a similar situation, it was observed as follows: "It is not possible to keep alive and relegate the controversy to a later stage independent proceeding. The controversy has got to be solved in the present application and that has got to be done conclusively and finally and not collaterally and incidentally." The said decision also arose in a suit for partition where a preliminary decree for had been made and the suit was at the stage of passing of a final decree. The controversy has got to be solved in the present application and that has got to be done conclusively and finally and not collaterally and incidentally." The said decision also arose in a suit for partition where a preliminary decree for had been made and the suit was at the stage of passing of a final decree. One Swaminatha Pillai who continued the said suit and whose share was countenanced as 2/5th of the died after the preliminary decree. The trial court, dealing with the question as to who legal representative, based on the rival contentions of the parties, before it on the two alleged wills said to have been executed by the said Swaminatha Pillai, passed in favour of one of the claimants and against the said order, the aggrieved party revision to this Court and this Court in the said decision observed as follows: "However, Mr.B.Kumar, learned counsel for the respondent would submit that an enquiry the question as to who should be brought on record as the legal representative of a party to the litigation is of a summary nature and order thereon decides only which is collateral an incidental to the decision of the suit and such a decision operate as res judicata as between the parties and the aggrieved party can seek independent proceedings to establish his rights. I am unable to accept this line of thinking by the counsel for the respondent on the facts of this case for the simple reason, here the are sharers to the estate and the suit is one for partition and the question as entitled to what share must be decided giving a quietus to the controversy in this and it is not possible to relegate the controversy for a full-fledged decision to some proceeding as the learned counsel for the respondent would suggest. It is true that admission of person as a legal representative of a deceased party for the purposes prosecution of the suit will not conclusively establish his right as such if that legal and question is one of the main or vital issues in the suit itself and the decision in the to bring on record the legal representatives is only collateral to the decision in the such a case, the controversy has got to be left open for a decision in the suit itself can make it clear that there is no conclusiveness about the order bringing on legal representative and relegating the controversy for a decision in the main Here, as stated above, the suit is one for partition. The question as to who should legal representative of a sharer and what share the parties would be entitled to are and vital issues in the suit itself. The preliminary decree has been passed. The passing the final decree has come. It is not possible to keep alive and relegate controversy to a later stage or to an independent proceeding. The controversy has solved in the present application only and that has got to be done conclusively and not collaterally and incidentally." 9. But, I find a Division Bench of this Court has held in Pakkran v. Pathumma, 25 as follows: "The question whether a person should be admitted as the legal representative of a plaintiff to continue a suit cannot be regarded as one of the questions arising for the suit itself. It is really a matter collateral to the suit and one that has to be decided the suit itself is proceeded with. The Civil Procedure Code does not provide for against an order deciding the question though the repealed C.P.C. did. The accordance with the opinion of the Bombay and Allahabad High Courts. See Ganesh, (1902) I.L.R. 27 Bom. 162 and Purushotam Rao v. Janki, (1905) I.L.R. 28 [Emphasis supplied] Further, a Full Bench of this Court has also held in Venkatakrishna Reddi v. Krishna A.1.R 1926 Mad. 586 (F.B.). that no appeal lies against the order passed under O.22, C.P.C. In view of these two decisions, one by a Division Bench and another by a Full am unable to share the view of the learned Judge, who decided the case in referred to Sivagurunathan v. Balasubramaniam, (1988)1 L.W. 277. 586 (F.B.). that no appeal lies against the order passed under O.22, C.P.C. In view of these two decisions, one by a Division Bench and another by a Full am unable to share the view of the learned Judge, who decided the case in referred to Sivagurunathan v. Balasubramaniam, (1988)1 L.W. 277. Further, in Koneridoss v. N.Subbiah Naidu, (1974)2 M.L.J. 253: A.I.R. 1975 Mad. 124, also, a single Judge of this Court has held as follows distinguishing an earlier Division judgment of this Court in Appavoo Pillai v. Vijayambal, A.I.R 1973 Mad. 64. “The made under O.22, Rule 5, C.P.C. is only summary in character. Even though witnesses be examined in support of the contention of either party to that proceeding, still proceeding is only summary in character.” Then, dealing with the above said Appavoo v. Vijayambal, A.I.R. 1973 Mad 64, the learned Judge who decided the above said v. N.Subbiah Naidu, (1974)2 M.L.J. 253: A.I.R. 1975 Mad 124, observes as follows: “In the above decision, the Division Bench has observed that the decision of the regarding who among the rival claimants is the legal representative would operate constructive res judicata in a subsequent suit. But that is a case where the dispute as is the legal representative of a deceased person arose in execution proceeding. Therefore decision of the court regarding who among the rival claimants was the legal representative become an appealable order by virtue of Sec.47, C.P.C. It should be noted that under (3) where a question arises as to whether any person is or is not a representative party such question shall for the purpose of that section be determined by the Therefore if an executing court decides as to who among the rival claimants is the representative of a party, that decision is appealable. In Rangaswami Naicker v. Rangammal, (1968)2 M.L.J. 610 : A.I.R. 1969 Mad 271, Venkataraman, J. has also taken the same Even though the Division Bench which decided Appavoo Pillai v. Vijayambal, 85 L.W. A.I.R 1973 Mad 64, had not stated so. I am clearly of the view that because the regarding legal representative in that case was appealable, the Division Bench has held under such circumstances it would operate as res judicata in a subsequent suit. I am clearly of the view that because the regarding legal representative in that case was appealable, the Division Bench has held under such circumstances it would operate as res judicata in a subsequent suit. If view is not taken of the above decision of the Division Bench it would be going counter decision of this Court in, Pakkran v. Pathumma, 25M.LJ. 279, already referred to which also a decision by a Division Bench. When there is a Bench decision directly on the point, subsequent Bench, unless it is a larger Bench cannot possibly take a different view. In this way, the said Appavoo Pillai v. Vijayambal, A.I.R. 1973 Mad. 64, distinguished in Koneridoss v. N.Subbiah Naidu, (1974)2 M.L.J. 253.A.I.R. 1975 Mad also think that the learned Judge is right in so distinguishing Appavoo Pillai v. Vijayambal, A.I.R 1973 Mad 64. No doubt, the position of Sec.47, C.P.C. is little different now after amendment of C.P.C. in 1976. Any order passed under Sec.47, C.P.C. was formerly a within the meaning of Sec.2(2) C.P.C. and hence an appeal itself would lie against decree. But, now after the 1976 amendment, it is not a decree, and is appealable falls under Sec.l04(l), C.P.C. Otherwise only a revision would lie. However, on that alone an order under 0.22, Rule 5, C.P.C. cannot be equated with an Order under Sec.47(3), C.P.C. At the time when fruit of any decree has to be given to the decree-holder,necessarily to be conclusively determined whether any party claiming to representative of the decree-holder is entitled to claim the fruit of the decree. Therefore determination under Sec.47(3), C.P.C. is a conclusive one and cannot be called a determination as it is the case in enquiry under O.22, Rule 5, C.P.C. Further, it must noted the term used in Sec.47(3), C.P.C. is ‘representative’ of a party while the term O.22, Rule 5, C.P.C. is legal representative’ of a deceased plaintiff or a deceased defendant: This latter term ‘legal representative’ has been given a specific definition in the C.P.C., it is not so in the case of the term ‘representative’. The term ‘legal representative under Sec.2(11), C.P.C. According to the said definition, the said term means a person in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. The term ‘legal representative under Sec.2(11), C.P.C. According to the said definition, the said term means a person in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Thus, even a person who intermeddles with the estate deceased comes under the definition. So, when a party to a proceeding dies, even a who intermeddles with the estate of the deceased party could be brought on record representative for prosecuting the proceeding further without allowing it to be abated. this legal position cannot be attributed to the term ‘representative’ used in Sec.47(3), so, on this ground, I distinguish the above referred to Appavoo Pillai v. Vijayambal, 1973 Mad. 64 (D.B.), from the present case. 10. I may also add that S.Natarajan, J. as he then was, has expressed the same view of the view expressed in the above referred to Pakkran v. Pathumma, 25 M.L.J. Krishnakumar v. N.C.Naidu,A.I.R 1975 Mad. 174: (1974)2 M.L.J. 158, thus: “It is needless to say that though a duty is cast by Rule 5 of O.22 on the court to determine who is the legal representative of a deceased plaintiff or deceased defendant, there be a comprehensive and exhaustive enquiry to determine the person who could be designated the legal representative of a deceased party in a pending action, for the reason that any decision so rendered by a Court in pursuance of an enquiry under O.22, 5, C.P.C. has its inherent limitations. The recognition of a rival contender as the representative of a deceased party in a pending action is only to facilitate the early of the pending action. The recognition of a rival contender as the representative of a deceased party in a pending action is only to facilitate the early of the pending action. Any recognition of right given by a court in such a proceeding confer rights on the recognised representative in the estate or property of the person, nor will such a finding operate as res judicata in subsequent proceedings fact that no appeal is provided from an order passed under O.22, Rule 5, C.P.C. will show that the order cannot be characterised as one ‘finally decided by a Court contemplated in Sec.11, C.P.C.” Further, a Full Bench of Punjab and Haryana High Court in Mohinder Kaur v. Piara A.I.R 1981 P. & H. 130, also has expressed the same view and reiterated appointment of a legal representative is only for the purpose of the proceeding in this connection, it has observed thus: “At least one of the reasons that the appointment of a legal representative is only purposes of that suit alone noted by us above, has met the approval of the Supreme Daya Ram v. Shyam Sundari, A.I.R. 1965 S.C. 1049.” So, the Supreme Court also has approved this position. In feet, in the said Supreme decision, viz., the above referred to Daya Ram v. Shyam Sundari, A.I.R. 1965 S.C. 1049, Supreme Court approved this Court ’ s decision reported in Kair Mohideen v. Muthu Ayyar, (1903) I.L.R 26 Mad 230, particularly the following passage in the above referred Kair Mohideen v. Muthu Krishna Ayyar, (1903) I.L.R. 26 Mad 230: “....there can be no hardship in a provision of law by which a party dying during pendency of a suit, is fully represented for the purpose of the suit, but only for that by a person whose name is entered on the record in place of the party.........” (emphasis supplied) 11. Further, even though in the present case, even though enquiry was held by court on the truth and validity of the above said will in an elaborate manner, examining several witnesses, and a finding has been given after analysing the legal position must be noted that there are admittedly other heirs to the deceased who is said executed the will, viz., his five daughters, who were not given an opportunity to participate in the said enquiry. So, for this reason also, it cannot be said that the finding arrived therein is conclusive. So, for this reason also, it cannot be said that the finding arrived therein is conclusive. 12. In the light of the above discussion I feel that I am bound to follow the view expressed the Division Bench of this Court in the above referred to Pakkran v. Patkumma, 25 M.L.J. and in the Supreme Court in the above said Daya Ram v. Shyam Sundari, A.I.R 1965 1049, approving the above said Daya Ram v. Shyam Sundari, A.I.R 1965 S.C. 1049, referred passage in Kair Mohideen v. Muthu Krishna Ayyar, (1903) I.L.R 26 Mad 230, than the view expressed by Nainar Sundaram, J., in the above referred to Sivagurunathan Balasubramaniam, (1988)1 L. W.277. 13. Anyway, in view of the above referred to order dated 20.2.1990 in the above C.M.P.No.5589 and 5590 of 1989 that it is open to the parties to agitate, with regard genuineness of the will, at the time of final hearing of the appeal, and since both the also have advanced their rival arguments before me on the above said finding. I may into the said question even for coming to a prima facie conclusion thereto, only to whether the said Parvatha Udayar can represent the deceased appellant in this appeal legal representative. In this regard, the learned counsel for Parvatha Udayar initially attention, to Jayaraman’s own evidence as P.W.I before the trial court in its regarding the execution of the Will and also Exs.B-40 and B-41 marked in the said Ex.B-41, dated 29.9.1987 is the notice given by the deceased 1st appellant Nallathambi Udayar to the said Jayaraman and the other son Margasahayam. In Ex.B is specifically stated as follows: The trial Judge also points out that to Ex.B-41, notice, Jayaraman and the 3rd defendant not send any reply. Further the learned Judge points out that at the time when Ex.B marked, there was no objection from Jayaraman and that there was no cross-examination also by Jayaraman regarding Ex.B-41. In Ex.B is specifically stated as follows: The trial Judge also points out that to Ex.B-41, notice, Jayaraman and the 3rd defendant not send any reply. Further the learned Judge points out that at the time when Ex.B marked, there was no objection from Jayaraman and that there was no cross-examination also by Jayaraman regarding Ex.B-41. All these apart, I also find that Jayaraman as the enquiry regarding the will, admitted that the signature found in Ex.B-40 the acknowledgment for having received Ex.B-41 notice is his further, the said P.W.I admitted that Nallathambi Udayar himself conducted the case without anybody Further, he also deposed that in the Court he gave evidence with clarity and that came to High Court climbing the staircase therein himself, Further, the attestor to the said Ex.A-39 will as D.W.3 has also given evidence regarding the execution of Likewise, D.W.2, the scribe also has given evidence. 14. No doubt, the learned counsel for Jayaraman contends that the will is unnatural, disinherits all the other children of Nallathambi Udayar, excepting the legatee. But, ground alone, the will cannot be held to be not true and valid, particularly in the light above said Ex.B-41 and the evidence given by P.W.I (Jayaraman) himself. circumstances, I hold that for the purpose of prosecuting these appeals alone, the said Parvatha Udayar is taken as the legal representative of the deceased appellant. 15. Then, the only question to be decided further in these two appeals, is, whether decision of the Court below that the above said properties are joint family properties, correct or not. So far as items 5, 6 and 7 of B Schedule, Nallathambi Udayar himself admitted that they are joint family properties. Then, with reference to items 8,10 to 15, the trial Court has held that there is no evidence to establish that the said originally belonged to Nallathambi Udayar’s mother. So, the Court below held that items are also joint family properties. The learned counsel for the 2nd appellant Udayar also fairly represents that since no evidence was produced regarding the aspect by Nallathambi Udayar, the said finding regarding the above said items, does for any interference by this Court. Accordingly, they are also held to be joint properties. 16. So, the Court below held that items are also joint family properties. The learned counsel for the 2nd appellant Udayar also fairly represents that since no evidence was produced regarding the aspect by Nallathambi Udayar, the said finding regarding the above said items, does for any interference by this Court. Accordingly, they are also held to be joint properties. 16. However, the learned counsel for the 2nd respondent contends that the trial committed a mistake in simply accepting the evidence of P.W.1 and holding that items 2 and B Schedule belongs to the family. Further, according to him, the trial Court committed an error in holding in paragraph 41 of its judgment that items 18 and schedule properties are ancestral properties. He points out that as per the plea in the it is only 4.28 acres of dry land and 0.98 acres of wet land in B schedule are the properties and that C and D schedule properties were purchased from the nucleus schedule properties. Further, according to him, against the said plea and against deed under which the said items 18 and 19 were purchased, viz., Ex.B-8, dated 27.6.1922, the court below decided the said question erroneously, when there is no oral evidence side of the plaintiff that the said items are the ancestral properties. 17. But, the learned counsel for Jayaraman drew my attention to paragraphs 47 and the judgment of the trial court. There, the learned Judge observes that the family was an agriculturist family, that Nallathambi Udayar did not plead that he purchased properties from out of “”the income from any other business or avocation, that no evidence has been let in said Nallathambi Udayar had any other income of his own and that since Nallathambi got more than 5 acres from his ancestors, it could not be accepted that he worked as and purchased the properties. 18. The learned counsel for Jayaraman also drew my attention to the decisions M.Girimallappa v. R.Yellappagouda, A.I.R. 1959 S.C. 906 and Krishnan v. Ramaswami, (1984)2 M.L.J. 133 , relied on by the court below. In the above referred to Krishnan Ramaswami, (1984)2 M.L.J. 133 , it was observed as follows: “Though Mari Mudaliar had purchased the property in his individual name, the fact that he was the manager of a joint family at the time of the purchase. In the above referred to Krishnan Ramaswami, (1984)2 M.L.J. 133 , it was observed as follows: “Though Mari Mudaliar had purchased the property in his individual name, the fact that he was the manager of a joint family at the time of the purchase. Therefore, this a case where the property has been purchased by a junior member of a Hindu joint his name or by a female member of a joint family in her names. That is an important which has to be taken note of. Two things emerge from the evidence, namely, Mudaliar was the head of the family and second, the family was possessed of certain of properties, obviously, those properties must have been yielding income as otherwise, would not have been possible for Mari Mudaliar to maintain a family consisting of eight members. Therefore, even though the respondents have not proved what income derived from the joint family property and what amount would have remained surplus after the expenses of the joint family had been met, there is a high possibility that there must have been some surplus and that the properties must have yielding adequate income for supporting all the members of the family. circumstances, there is certainly scope for inferring that there should have been amount of surplus, and from out of the surplus the suit property might have purchased.” 19. In view of the above features and the decisions cited, I do not think that the Court below regarding the joint family character of the above referred to properties be interfered with. 20. In the result, A.S.No.674 of 1985 is dismissed. Consequently A.S.No.1084 of also dismissed. However, in the circumstances of the case, there will be no order as Appeals dismissed.