( 1 ) RULE. Mr. B. K. Damani, learned counsel, waives service of Notice of Rule for the respondents. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the matter is being heard and finally decided, today. ( 2 ) THIS petition has been preferred under Articles-226 and 227 of the Constitution of India, challenging order dated 14th August, 2008 passed by the learned Principal Senior Civil Judge, Jam-Khambhaliya, rendered below applications at Exh. 16 and Exh. 22, filed under the provisions of Order-1 Rule-10 of the Code of Civil Procedure ("the Code" for short) for bringing on record the heirs and legal representatives of deceased Champaben Lalji Vashram, defendant No. 9, in Special Civil Suit No. 3/2005. ( 3 ) THE brief factual background necessary for the decision of the petition is that, the respondent No. 3 in the petition is the original plaintiff who instituted the above-mentioned suit, for partition of the ancestral property belonging to late Shri Lalji Vashram. Smt. Champaben who was impleaded as defendant No. 9 in the said suit, was the daughter of deceased Lalji Vashram. She expired on 4. 9. 2004, at London. The petitioner, being the son, heir and legal representative of deceased Champaben, preferred the application at Exh. 22 in the suit, for impleadment as the legal heir and representative of deceased Champaben. The respondents Nos. 1 and 2 in the petition, are the sons of the nephew of deceased Champaben. According to respondents Nos. 1 and 2, Champaben had executed a Will on 21. 11. 2002, at the United Kingdom, in respect of her share in the suit property, bequeathing it to them. The respondents Nos. 1 and 2 also filed an application for impleadment, in the capacity of heirs and legal representatives of deceased Champaben, being Exh. 16. The Trial Court heard both the applications at Exh. 16 and Exh. 22 together, and allowed them both by passing a common order dated 14th August, 2008. The Trial Court observed in the said order that at this stage, it would be difficult to decide whether the petitioner or respondents Nos. 16. The Trial Court heard both the applications at Exh. 16 and Exh. 22 together, and allowed them both by passing a common order dated 14th August, 2008. The Trial Court observed in the said order that at this stage, it would be difficult to decide whether the petitioner or respondents Nos. 1 and 2 are the legal heirs and representatives of deceased Champaben, therefore, both the applications are allowed, and the question of who is the true legal heir and representative will be decided at the time of final hearing of the suit. Aggrieved by the above-mentioned order passed by the Trial Court, the petitioner has approached this Court, by filing the petition. Mr. Vivek N. Mapara, learned counsel for the petitioner has submitted that, the petitioner is the son and legal representative of deceased Champaben and the Trial Court ought to have decided the question regarding the legal heir and representative of deceased Champaben at the very outset. Undoubtedly the petitioner being the son of the deceased, is her heir and legal representative. By allowing both the applications and keeping the question of heirship open, a manifest error of law has been committed by the Trial Court, while passing the impugned order. It is further submitted that though the petitioner, being the son and legal heir of deceased Champaben has been impleaded, the application at Exh. 16 filed by the Respondents Nos. 1 and 2 ought to have been rejected. In any case, this issue should have been determined by the Trial Court at the time of deciding both the applications, as per the settled position of law. Referring to the provisions of Order-22 Rule-5 of the Code, it is further submitted by the learned counsel for the petitioner that, looking to the said provisions of law, the conflicting claims of the petitioner and Respondents Nos. 1 and 2 should not have been left open by the Trial Court and the impugned order, having been passed without considering the relevant provisions of law, is illegal and erroneous. The learned counsel for the petitioner has further contended that the Will, on the basis of which the respondents Nos. 1 and 2 are claiming to be the heirs and legal representatives of deceased Chmpaben is a suspicious document, therefore, the Court below has committed error in allowing the application at Exh. 16 filed by the said respondents. The learned counsel for the petitioner has further contended that the Will, on the basis of which the respondents Nos. 1 and 2 are claiming to be the heirs and legal representatives of deceased Chmpaben is a suspicious document, therefore, the Court below has committed error in allowing the application at Exh. 16 filed by the said respondents. The learned counsel for the petitioner has relied upon certain judgments in support of the proposition that the Trial Court ought to have determined the question regarding the legal heir and representative of deceased defendant No. 9 at the very outset, rather than allowing both the applications, and keeping this question open till the final decision of the suit. The judgments cited by Mr. Vivek N. Mapara are as under:- (1) Jaladi Suguna (Dead) through L. Rs. V. Satya Sai Central Trust and Ors. , AIR 2008 SC 2866 . (2) Mrs. Mary Joyce Poonacha v. M/s. K. T. Plantations Private Limited, 1996 AIHC 1590. (3) Karamjit Kaur and Anr. v. Gurbant Singh and Ors. , IV (2003) CLT 32. (4) Ram Prakash and another v. Smt. Shamkari and others, AIR 1968 Punjab and Haryana 293 (Vol. 55 C. 58 ). (5) Smt. Chandra Kala and thers v. Kanak Mal and Others, AIR 2003 Rajasthan 306. (6) State Trading Corporation of India Ltd. v. K. V. Vaidyalingam and others, AIR 1978 Madras 294. (7) Chandaben Himatsinh Bhalia v. Bhatt Chaandrakant Motilal and others, 1986 GLH (UJ) 23. On the basis of the above submissions, and relying upon the principles of law enunciated in the above-mentioned judgments, it is urged by the learned counsel for the petitioner that the impugned order may be quashed and set aside, and the petition, allowed. ( 4 ) ON the other hand, Mr. B. K. Damani, learned counsel for the respondents has submitted that respondents Nos. 1 and 2 are the heirs and legal representatives of deceased Champaben by virtue of the Will, as the deceased has bequeathed her share of the suit property to them. It is further submitted that the deceased Defendant No. 9 had executed a Release Deed, relinquishing her right in her share of the property in favour of her brother, the application filed by the petitioner at Exh. 22, ought to have been rejected by the Trial Court. It is further submitted that the deceased Defendant No. 9 had executed a Release Deed, relinquishing her right in her share of the property in favour of her brother, the application filed by the petitioner at Exh. 22, ought to have been rejected by the Trial Court. The learned counsel for the respondents has supported the impugned order by contending that the Trial Court has rightly impleaded the respondents Nos. 1 and 2 as heirs and legal representatives of deceased Chmapaben, by passing the impugned order. ( 5 ) I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order, judgments cited at the Bar, and other documents on record. ( 6 ) A perusal of the application at Exh. 16, a copy of which is available at running page No. 11 of the petition, discloses that it has been filed by respondents Nos. 1 and 2, under the provisions of Order-1 Rule-10, though the prayers made in the said application are for impleadment in the suit, as heirs and legal representatives of deceased defendant Champaben. However, the application at Exh. 22 filed by the petitioner does not mention the provisions of law under which it has been filed. The prayers made therein are for impleadment in the suit, being the son and heir and legal representative of deceased defendant Champaben. This leaves no manner of doubt that the prayers in the application relate to the provisions of Order-22 Rule-4 of the Code. The Court has decided both the applications together by passing the impugned order. The opening lines of paragraph No. 2 thereof of the said order makes it clear that the Trial Court has treated both the applications as having been filed under the provisions of Order-1 Rule-10, even while observing that the said applications have been filed for impleadment in the suit as the heirs and legal representatives of deceased Champaben. While passing the impugned order, the Trial Court has specifically observed that there is no doubt regarding the fact that the petitioner, who has filed Exh. 22, is the son of deceased Champaben and the respondents Nos. 1 and 2, (applicants of Exh. 16) claim to be the legal heirs of deceased Champaben, on the basis of a Will. While passing the impugned order, the Trial Court has specifically observed that there is no doubt regarding the fact that the petitioner, who has filed Exh. 22, is the son of deceased Champaben and the respondents Nos. 1 and 2, (applicants of Exh. 16) claim to be the legal heirs of deceased Champaben, on the basis of a Will. Having said so, the Trial Court goes on to state that at this stage, the issue in controversy between the parties regarding who is the true legal heir, cannot be decided, therefore, both the applications came to be allowed. The reasons recorded in the impugned order are to the effect that evidence is to be led in the suit, and it would be in the interest of justice, if the petitioner as well as respondents Nos. 1 and 2 are impleaded at this stage and the question as to who is the real heir and legal representative of deceased Champaben can be decided at a later stage, as to do so now would delay the proceedings. The Trial Court also observed that such an order would not prejudice the rights of any party. On the basis of the above reasoning, the Trial Court has allowed both the applications at Exh. 16 and Exh. 22, by passing the impugned order. ( 7 ) IN order to decide the issues arising in the petition, it would be fruitful to advert to the provisions of Order-22 Rules-4 and 5 of the Code, which are reproduced herein below:-Order-XXII, Rule-4 "4. Procedure in case of death of one of several defendants or of sole defendant.- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. [ (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who was failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved. ] 4a. Procedure where there is no legal representative. xxxxxxxxxxx xxxxxxxxx 5. ] 4a. Procedure where there is no legal representative. xxxxxxxxxxx xxxxxxxxx 5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: [provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question]" The provisions of Rule-4 Sub-rule (1) stipulate that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. In the present case, Champaben was defendant No. 9 in the suit, and she expired pending suit. The petitioner, therefore, made the application at Exh. 22, being the son of Champaben. The respondents Nos. 1 and 2 preferred the application at Exh. 16, for being impleaded as heirs and legal representatives of Champaben, on the basis of the Will regarding her share of the property, executed in their favour. Though the application preferred by the respondents Nos. 1 and 2 mentions that it has been filed under the provisions of Order-1 Rule-10 of the Code, the prayers made therein indicate that it is essentially an application for being impleaded as heirs and legal representatives of deceased defendant No. 9. Such an application could only have been filed under the provisions of Order-22 Rule-4, and ought to have been treated and decided as such, in spite of the nomenclature given to it. On the other hand, the application at Exh. 22, though does not mention the provisions of law under which it has been filed, is, similarly, an application for impleadment of the petitioner, being the son and legal heir and representative of deceased defendant No. 9. Undoubtedly, this application would also fall under the provisions of Order-22 Rule-4 (1 ). On the other hand, the application at Exh. 22, though does not mention the provisions of law under which it has been filed, is, similarly, an application for impleadment of the petitioner, being the son and legal heir and representative of deceased defendant No. 9. Undoubtedly, this application would also fall under the provisions of Order-22 Rule-4 (1 ). Further, the provisions of Order-22, Rule-5 make it clear that where a question arises as to whether any person is, or is not, the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. In the present case, instead of determining the question regarding who is the true legal heir and representative of deceased Champaben, the Trial Court has taken the easy way out by allowing both the applications and impleaded the petitioner as well as respondents Nos. 1 and 2 as party defendants to the suit, (all claiming to be the heirs and legal representatives of the deceased defendant No. 9) without determining this question. In my considered view, the procedure adopted by the Trial Court, is in divergence with settled principles of law. In Jaladi Suguna (Dead) through L. Rs. V. Satya Sai Central Trust and Ors. (Supra), the Supreme Court has dealt at length with a similar question, and has laid down certain principles of law which are reproduced hereinbelow:- "9. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal. 10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal. 10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased. (emphasis as per reported judgment)11. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record. (emphasis in bold supplied, underlining as per reported judgment)12. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was bequeathed by will, and represent the estate of the deceased Suguna as intermeddlers. They want to continue the contest to the appeal. When Suguna - the first respondent in the appeal before the High Court died, the proper course for the High Court, was first to decide as to who were her legal representatives. For this purpose the High Court could, as in fact it did, refer the question to a Subordinate Court under the proviso to Rule 5 of Order 22 CPC, to secure findings. After getting the findings, it ought to have decided that question, and permitted the person/s who are held to be the legal representative/s to come on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. Only then there would be representation of the estate of the deceased respondent in the appeal. The appeal could be heard on merits only after the legal representatives of the deceased first respondent were brought on record. But in this case, on the dates when the appeal was heard and disposed of, the first respondent therein was dead, and though rival claimants to her estate had put forth their claim to represent her estate, the dispute as to who should be the legal representative was left undecided, and as a result the estate of the deceased had remained unrepresented. The third respondent was added as the legal representative of the deceased first respondent only after the final judgment was rendered allowing the appeal. That amounts to the appeal being heard against a dead person. That is clearly impermissible in law. We, therefore, hold that the entire judgment is a nullity and inoperative. " ( 8 ) SIMILAR principles of law have been enunciated in the other judgments cited at the Bar by the learned counsel for the petitioner. It is, therefore, a settled position of law that where there is a dispute between the parties as to who are the legal representatives of the deceased plaintiff or deceased defendant, it is incumbent upon the Court to adjudicate this issue and determine this question at the very outset, and not leave it open without determination till the final decision of the suit. The suit can only be heard on merits if the estate of the deceased plaintiff or deceased defendant (in this case deceased defendant No. 9) is represented by the legal heirs and representatives. Postponing the determination of this question would result in rendering the estate of the deceased defendant unrepresented. The provisions of Order 22 Rule 5 of the Code are mandatory in nature and the Trial Court ought to have determined the question of who is the heir and legal representative of deceased defendant No. 9 at the time of deciding the application at Exh. 22 and Exh. 16. The very premise on which the impugned order has been passed is, in my view, erroneous and not in accordance with the provisions of law and settled legal position. 22 and Exh. 16. The very premise on which the impugned order has been passed is, in my view, erroneous and not in accordance with the provisions of law and settled legal position. The prayers made in the applications, rather than the nomenclature given to them ought to have been considered and the applications should have been decided as per the relevant provisions of the Code, applicable to such applications. For the aforestated reasons, and as the impugned order, inasmuch as it has been passed without determining the question as to who are the real heirs and legal representatives of deceased Champaben is manifestly erroneous, the interference of this Court under its supervisory jurisdiction, is clearly warranted. ( 9 ) IT is made clear, that this Court has not gone into the merits of the case regarding the rival claims of the parties, and submissions relating to this aspect that have been advanced by the learned counsel for the respective parties, are not being dealt with. ( 10 ) ACCORDINGLY, the impugned order is quashed and set aside. The matter is remanded to the Trial Court to hear the applications at Exh. 16 and Exh. 22 afresh, and pass appropriate orders, in accordance with law, after hearing the parties. The petition is partly-allowed, as above. Rule is made absolute to the above extent. There shall be no order as to costs.