Judgment 1. Appellants have filed I.A. No. 1924 of 2003 under Order XXII Rule 2 of the Code of Civil Procedure (in short, CPC) stating therein that respondent No. 1 Shri Krishna Kumar Singh died on 28.12.2002 without leaving any surviving son and daughter and his wife had predeceased him. Appellant No. 1 is his Bhabhi and appellant No. 2 is his niece. Similarly, respondent No. 2 is his Bhabht and respondent No. 3 is his niece. The further case of appellants is that respondent No. 2 Smt. Laxmi Devi alias Lakhmina Devi died in the year 2000, the exact date of her death could not be known even after inquiry and her only legal heir is her daughter Smt. Radha Devi who is already on record as respondent No. 3 and to the knowledge of appellants there is no other legal heir of deceased respondents 1 and 2. As all the heirs of respondents 1 and 2 are already on record there is no question of any abatement. Prayer has been made for expunging the names of respondents 1 and 2 from the records as the right to sue survives. 2. By filing counter affidavit to the above petition respondent No. 3 has opposed the prayer of appellants on the ground that no doubt respondent no. 1 Shri Krishna Kumar Singh died on 28.12.2002 but he died leaving behind his only heir and legal representative Mritunjay Kumar Singh, son of Ram Ayodhya Singh, resident of village Sinha, P.S. Sinha, District-Bhojpur. The further case of respondent No. 3 is that respondent No. 1 Shri Krishna Kumar Singh on 30.12.1987 had executed a registered deed of gift bequeathing his entire property in favour of Mritunjay Kumar Singh who came in possession of gifted property and when Shri Krishna Kumar Singh was examined as DW-16, he, in his evidence, stated that he gifted his entire property in favour of Mritunjay Kumar Singh who came in possession thereof and the deed of gift is on record as Ext. G/1 and in the judgment of Trial Court it is mentioned that Krishna Kumar Singh stated that he had gifted his entire property to his grandson Mritunjay Kumar Singh. G/1 and in the judgment of Trial Court it is mentioned that Krishna Kumar Singh stated that he had gifted his entire property to his grandson Mritunjay Kumar Singh. According to the respondent No. 3, Mritunjay Kumar Singh is the sole heir or legal representative of deceased respondent No. 1 Krishna Kumar Singh but appellants having full knowledge of the gift made in favour of Mritunjay Kumar Singh by respondent No. 1 Krishna Kumar Singh did not take any step for substituting the name of Mritunjay Kumar Singh in place of respondent No. 1 Krishna Kumar Singh, therefore, this appeal stood abated. 3. Learned counsel appearing on behalf of respondent No. 3 has argued that respondent No. 1 Krishna Kumar Singh on 30.12.87 executed a registered deed of gift bequeathing his entire property in favour of Mritunjay Kumar Singh who came in possession of the property and after the death of respondent No. 1 Krishna Kumar Singh, his sole heir and legal representative is Mritunjay Kumar Singh and according to section 2 (11) C.P.C. "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles 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". Relying upon a decision of the Supreme Court in the case of Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique (AIR 1989 Supreme Court 1589) it has been argued that because Mritunjay Kumar Singh is now in possession of entire property of respondent No. 1 Krishna Kumar Singh on the basis of a deed of gift executed in his favour he is legal representative of Krishna Kumar Singh. The facts of the case relied upon by learned counsel of respondent No. 3 were different from the facts of the present case. In that case a widow acquired Meera Rights under the Portugees Law of Inheritance, according to which, she got half share in the estate left by her deceased husband and on these facts it was held that the widow represented the estate of her deceased husband. From the certified copy of decree it appears that Title Suit No. 190 of 1986 was filed on 20.12.86. From the certified copy of decree it appears that Title Suit No. 190 of 1986 was filed on 20.12.86. It is the own case of respondent No. 3 that respondent No. 1 Krishna Kumar Singh executed a deed of gift in favour of Mritunjay Kumar Singh on 30.12.87 meaning thereby during the pendency of the suit. 4. Learned counsel of appellants has argued that there is no question of abatement in the present case because if the contention of respondent No. 3 that respondent No. 1 Krishna Kumar Singh on 30.12.87 had executed a deed of gift in favour of respondent No. 3 which is not admitted valid by appellants is taken for consideration, even then it will be a case of devolution of interest during the pendency of the suit and it will be covered by Order XXII Rule 10 CPC which does not provide automatic abatement as provided under Rule 3 and 4 of Order XXII CPC. He has relied upon a decision of Supreme Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and others ( AIR 2001 SC 2552 ). 5. In the above case relied upon by the learned counsel of appellants the Supreme Court has held as follows : "6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest is devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The Legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record." 6. In view of the above discussions prayer of appellants for expunging the names of respondent Nos. 1 and 2 is allowed. Let the names of respondent No. 1 and 2 be expunged. 7. I.A. No. 1924 of 2003 stands disposed of.