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2018 DIGILAW 2376 (ALL)

Narbdeshwar v. Ram Naresh Chaudhari

2018-11-20

MANOJ MISRA

body2018
JUDGMENT : Manoj Misra, J. Heard Sri S. N. Tripathi for the petitioners; Sri Prem Prakash Sharma for the respondent; and perused the record. 2. Briefly stated the facts giving rise to this petition are as follows: Jagjeevan and Bhagwanti instituted Original Suit No.210 of 1996 against the petitioners for cancellation of sale deed dated 15.11.1991. During the pendency of the suit, Bhagwanti, who was issue less widow of Lakhan (the brother of Jagjeevan), died on 18.11.2009. Later, Jagjeevan also died on 17.12.2010. Ram Naresh Chaudhary (the respondent), by alleging that Jagjeevan had executed a registered Will dated 26.02.2010 in his favour, applied for substitution as legal representative of the deceased plaintiff. The defendants-petitioners opposed the substitution application of the respondent by claiming: (a) that the will is forged, bogus and not executed by the deceased plaintiff; (b) that the respondent was not a natural heir of the deceased plaintiffs as both plaintiffs had left no natural heir; and (c) that the defendants as purchaser of the disputed property alone could represent the estate of the deceased plaintiffs, hence the suit had abated on death of the plaintiffs. 3. By the order impugned, dated 05.07.2012, the trial court, without taking any evidence to prove execution of the Will, allowed the substitution application by observing that since there exist no dispute amongst the heirs of the deceased plaintiffs the respondent, having a registered Will in his favour, is entitled to pursue the suit as a legal representative of the deceased plaintiffs. Against the order of the trial court, Revision No.148 of 2012 was filed by the defendant-petitioners which was dismissed by impugned order dated 25.05.2013 passed by the court of Additional District Judge, Gorakhpur. While affirming the order of the trial court, the Revisional Court observed that the defendants were free to file an additional written statement disputing the Will where after an issue could be framed and decided with the suit. 4. Challenging the orders dated 05.07.2012 and 25.05.2013, initially, Writ C No.55748 of 2013 was filed. Subsequently, in view of the judgment of the Apex Court in Radhey Shyam and another Vs. 4. Challenging the orders dated 05.07.2012 and 25.05.2013, initially, Writ C No.55748 of 2013 was filed. Subsequently, in view of the judgment of the Apex Court in Radhey Shyam and another Vs. Chhabi Nath and others, (2015) 5 SCC 423 , an application was filed for conversion of the writ petition to a petition under Article 227 of the Constitution of India, which was allowed by order dated 03.11.2017 giving rise to this petition under Article 227 of the Constitution of India. 5. The learned counsel for the petitioners contended that Order 22 Rule 5 of the Code of Civil Procedure, 1908 (for short the Code or CPC) provides that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased defendant, such question is to be determined by the court. It was submitted that in the objection filed to the substitution application, the execution of the Will was questioned; it was claimed that the respondent was not natural heir of the deceased plaintiffs; and it was also claimed that the deceased plaintiffs had left no natural heir hence the suit had abated. Under the circumstances, without holding any inquiry and recording of evidence as regards valid execution of the Will, which was not probated, substitution of the respondent as legal representative of the deceased plaintiffs could not have been directed. It was urged that, as per section 68 of the Evidence Act, 1872, execution of a Will has to be proved by examination of at least one of the attesting witnesses, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. But since no evidence was recorded to prove execution of the Will, the substitution of the respondent on the basis of a Will, which was not proved, is not at all justified and the orders impugned are liable to be set aside. 6. Per Contra, the learned counsel for the respondent submitted that the Will was a registered document and no one came forward as natural heir of the deceased plaintiffs to dispute the Will therefore there was no requirement for taking evidence to prove execution of the Will. 6. Per Contra, the learned counsel for the respondent submitted that the Will was a registered document and no one came forward as natural heir of the deceased plaintiffs to dispute the Will therefore there was no requirement for taking evidence to prove execution of the Will. It was contended that the inquiry contemplated by Order 22 Rule 5 CPC is of summary nature and determination therein is only for the purpose of pursuing the suit or proceeding, hence there is no mandatory requirement to record evidence to prove execution of the Will at the stage of substitution. More so, because a person who sets up Will of the deceased party would be deemed to inter-meddle with the estate of the deceased. It was also contended that as the revisional court has given liberty to question the Will by filing additional written statement, no prejudice has been caused to the defendant-petitioners by the order impugned. He thus stated that the orders impugned call for no interference. 7. I have given thoughtful consideration to the rival submissions. 8. Before I proceed to examine the weight of rival submissions, it would be useful to examine the provisions in the Code concerning substitution of a deceased party, in particular the plaintiff. The relevant provisions in that regard are found in Rules 1, 2, 3 and 5 of Order 22 and Section 2 (11) of the Code. Rule 1 of Order 22 provides: a suit shall not abate on death of plaintiff or defendant if the right to sue survives. Rule 2 of Order 22 provides: where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Rule 3 of Order 22 provides: (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. Order 22 Rule 5 reads as follows: “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 therefor, and the Appellate Court may take the same into consideration in determining the question.” Section 2 (11) of the Code defines legal representative as follows: “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles 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; 9. A bare reading of the aforesaid provisions would show that in so far as Rules 1 and 2 of Order 22 of the Code are concerned they apply irrespective of the fact whether it is the plaintiff or the defendant who has died. Rule 3 of Order 22 of the Code deals with a situation where plaintiff(s) dies. A bare reading of the aforesaid provisions would show that in so far as Rules 1 and 2 of Order 22 of the Code are concerned they apply irrespective of the fact whether it is the plaintiff or the defendant who has died. Rule 3 of Order 22 of the Code deals with a situation where plaintiff(s) dies. Sub-Rule (1) of Rule 3 of Order 22 of the Code speaks of necessity to implead legal representative of the deceased plaintiff where the sole plaintiff dies or where the right to sue does not survive to the surviving plaintiff or plaintiffs alone where there are more than one plaintiff. Sub-Rule (2) of Rule 3 of Order 22 of the Code provides that where no application is made under sub-rule (1) within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned. Rule 5 of Order 22 of the Code provides 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. The proviso of Rule 5 of Order 22 of the Code deals with a situation where such question arises before an appellate court for determination. 10. Having noticed the relevant provisions in the Code, it would now be apposite to examine few decisions that throw light on the nature and scope of the inquiry to be held by a Court as also the procedure to be adopted for determining as to whether any person is or is not the legal representative of a deceased party. 11. In Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521 , the suit of the plaintiff was decreed by the trial court. Against the decree an appeal was filed. During pendency of the appeal, the plaintiff died. The appellant applied to substitute the plaintiff with her husband. On the other hand plaintiff's nieces and nephews claimed themselves as legatee of the plaintiff under a Will. The appellate court remitted the matter to the trial court to determine the issue. The trial court found that the plaintiff had executed two Wills. The appellate court thereafter, without determining the issue as to who would be the legal representative of the deceased plaintiff, proceeded to hear and decide the appeal. The appellate court remitted the matter to the trial court to determine the issue. The trial court found that the plaintiff had executed two Wills. The appellate court thereafter, without determining the issue as to who would be the legal representative of the deceased plaintiff, proceeded to hear and decide the appeal. The apex court after observing that a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative, allowed the appeal, set aside the order of the High Court and directed as follows: “(i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28-11-2005 recorded by the trial court and hearing the rival claimants; (ii) After such determination, the persons determined to be the persons entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased; and (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law.” 12. Before the above-quoted direction, after examining various provisions in the Code relating to substitution of legal representatives, the apex court in paragraphs 15 and 16 of its judgment, as reported, held/ observed as under: “15. 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, can it be said that the estate of the deceased is represented. 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, can it 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-à-vis other rival claimants to the estate of the deceased. 16. 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 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 makes it clear that the appeal can be heard only after the legal representatives are brought on record. (Emphasis Supplied) 13. 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 makes it clear that the appeal can be heard only after the legal representatives are brought on record. (Emphasis Supplied) 13. In Kanhiya Singh Santok Singh v. Kartar Singh, (2009) 5 SCC 155 , a suit was filed for eviction from a shop against tenant (Santok Singh) and his firm on ground of bona fide need. The suit was dismissed by the trial court against which appeal was filed, which was allowed. Santok Singh (defendant) filed second appeal. During pendency of second appeal Santokh Singh died leaving behind a widow and three sons. Two sons filed substitution application. The landlord-plaintiff opposed the application for substitution. The court rejected the application and dismissed the appeal as abated. The matter came before the apex court. Before the apex court it was urged on behalf of the plaintiff-landlord that the sons were not entitled to the benefit of tenancy of the shop as they could not show that they were ordinarily carrying on business with the deceased tenant in such premises as member of his family up to his death. The plaintiff-landlord had claimed that partition in between father and sons had already taken place therefore the sons would not fall within the definition of tenant provided by the concerned Rent Act. The sons of the deceased tenant who were the appellants before the apex court contended that there was no proper assessment of the aforesaid aspect and only bits and pieces of evidences led in the suit were utilized to reject their claim. The apex court after setting aside the order of the High Court remanded the matter back with direction to remit the issue to the trial court for taking evidence on factual aspects as to whether the appellants were in fact carrying on business with late Santok Singh at the time of his death and, thereafter, to ascertain whether the appellants are to be brought on record in the second appeal as legal representatives of late Santok Singh. The apex court took the view that such determination was necessary under Order 22 Rule 5 CPC. The relevant paragraphs 17 to 19 of the judgment, as reported, are extracted below: “17. The apex court took the view that such determination was necessary under Order 22 Rule 5 CPC. The relevant paragraphs 17 to 19 of the judgment, as reported, are extracted below: “17. The fact that one of the appellants was a manager of the disputed shop can have two meanings. The first one being that he was actually carrying on the business along with his father Santok Singh till the time of his death. The other being that the appellant Man Mohan Singh was only working as an employee in the shop of his father, his designation being that of a manager and was not a part of the same business. The High Court had overlooked this disputed question of fact and held that the three sons had separate business for which they could not fall under the category of “tenant” under the provisions of the Act. Furthermore, this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective cases and without coming to a finding on such question of fact by the court. 18. In this state of affairs, pending the disposal of the second appeal, the High Court ought to have sent the case to the trial court to determine the status of the appellants as legal representatives of late Santok Singh after permitting the parties to adduce evidence, under the provisions of Order 22 Rule 5 CPC, which deals exclusively with the determination of question as to the legal representatives of a deceased. For a proper understanding of the abovestated position, it is necessary to reproduce the provision which runs as follows: “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 therefor, and the appellate court may take the same into consideration in determining the question.” 19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh.” (Emphasis Supplied) 14. The decision rendered in Kanhiya Singh Santok Singh case (supra) was relied upon and was applied by the apex court in Ajambi v. Roshanbi, (2010) 11 SCC 168 to hold that for ascertaining whether a person is a legal representative of a deceased party under a Will, the validity and legality of the Will might have to be tested by taking evidence. The relevant paragraphs 25 to 30 of the judgment in Ajambi's case (supra), as reported, are extracted below: “25...................in our estimation, there is another issue which arises for consideration, which is as to whether the appellant could claim to be a legal representative. 26. Out of the said three issues raised herein, insofar as the question of entitlement of the appellant’s share is concerned, the same appears to be a question of law as it forms a part of the principles of Mahomedan Law. There are also some decisions of the Supreme Court touching upon the said issue. But the other two issues, namely, the status of the appellant and whether she could claim to be a legal representative along with the question as to whether the will propounded by the appellant is legal and valid and how far the same could be relied upon, are disputed questions of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order 22 Rule 5 of the Code of Civil Procedure, 1908 (for short “CPC”). 27. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the matter we consider it necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order 22 Rule 5 CPC. 28. 27. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the matter we consider it necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order 22 Rule 5 CPC. 28. The decision to act on the basis of Order 22 Rule 5 has been taken in consideration of the proposition laid down by this Court in Kanhiya Singh Santok Singh v. Kartar Singh in which the Supreme Court has held thus: “17. … The High Court had overlooked this disputed question of fact and held that the three sons had separate business for which they could not fall under the category of ‘tenant’ under the provisions of the Act. Furthermore, this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective cases and without coming to a finding on such question of fact by the court.” In para 19, this Court held thus: “19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh.” 29. We, accordingly, direct the trial court to take evidence in the manner indicated above on the two issues, namely: (1) whether the appellant could claim to be a legal representative? and (2) whether or not the will propounded by the appellant herein, namely, Smt Munira, wife of Kesarkhan Pathan, allegedly executed on 20-8-2001 and registered in the office of the Sub-Registrar on 29-8-2001 is a legal and valid document in the eye of the law? 30. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the will propounded is legal and valid and how far the same could be relied upon. 30. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the will propounded is legal and valid and how far the same could be relied upon. The trial court shall thereafter send back to this Court the records with findings and evidence that might be adduced and already on record................” (Emphasis Supplied) 15. In Mahendra Kumar v. Lalchand, (2001) 2 SCC 619 , during pendency of a civil appeal arising out of a partition suit, the respondent no.1 in the appeal, namely, Rambhabai, died. The appellant filed an application under Order 22 Rule 2 read with Section 151 CPC by contending that he was the son of the deceased respondent and was her sole legal representative therefore the name of deceased respondent be deleted from the cause title. That application was allowed. Later, another person filed an application claiming that he was legal representative of the deceased respondent as she had executed a will in his favour and since he had not been brought on record as legal representative of the deceased, the appeal be dismissed as abated. Without determining the question whether he was legal representative under the Will, the Court allowed the application and dismissed the appeal of the appellant as abated. For setting aside the abatement order, the appellant preferred an application which was rejected. The matter came before the apex court. The apex court held: “6. In our view, the order passed by the High Court holding that appeal filed by the appellant stands abated is contrary to its own order passed in appeal filed by Lalchand. It is also contrary to Order 22 Rule 5, which is as under: “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 therefor, and the appellate court may take the same into consideration in determining the question.” 7. Undisputedly, the appellant is a legal heir of his mother Rambhabai. Therefore, his right to sue survives and the appellant was entitled to be substituted as legal representative of the deceased Rambhabai. However, the question would be, whether Rambhabai has executed will dated 20-8-1980 in favour of Respondent 2, Shrikrishna, and if so, by not joining him whether the appeal would abate. Respondent 2 has not obtained probate, hence considering the procedure prescribed under the above-quoted Order 22 Rule 5, there is no question of abatement of appeal. It was for Respondent 2 Shrikrishna Chaurasia, who claims that will has been executed by the deceased Rambhabai in his favour to file proper application to be joined as party-respondent by contending that he is the legal representative as the estate has devolved upon him on the basis of the will. On such application being filed, the Court was required to determine it under Order 22 Rule 5. This legal provision was completely overlooked by the High Court and on this ground the impugned judgment and order is not sustainable. (Emphasis Supplied) 16. In Suresh Kumar Bansal v. Krishna Bansal, (2010) 2 SCC 162 , the facts of the case were that an eviction suit was filed. On death of the plaintiff his natural heirs as well as legatee under a Will had applied for substitution. The trial court held an inquiry and discarded the Will by holding it to be suspicious whereas the natural heirs were substituted. A challenge was laid by the legatee to the order of the civil court before the High Court. The High Court did not interfere with the order of the trial court by observing that the inquiry contemplated by Order 22 Rule 5 CPC is of summary nature and a decision therein does not bind as res judicata in regular proceedings therefore no case for interference was made out. The order of the civil court as well as the High Court was challenged before the Apex Court. The apex court allowed the appeal and, in paragraphs 14 to 24 of the judgment, as reported, held as follows: “14. The order of the civil court as well as the High Court was challenged before the Apex Court. The apex court allowed the appeal and, in paragraphs 14 to 24 of the judgment, as reported, held as follows: “14. Having heard the learned counsel for the parties and after going through the impugned order as well as the application for substitution of the appellant on the basis of the will alleged to have been executed by the deceased plaintiff, we are of the view that the impugned order of the High Court is liable to be interfered with and the application for impleadment filed at the instance of the appellant on the basis of the will alleged to have been executed by the deceased plaintiff must be allowed and the appellant must be impleaded in the suit along with the natural heirs and legal representatives of the deceased plaintiff, subject to grant of probate by a competent court of law. 15. It is true that in the impugned order, the High Court has made it clear that the finding regarding genuineness of the will was made only for the purpose of deciding the application for impleadment filed at the instance of the appellant. But, in our view, if at this stage, the appellant is not permitted to be impleaded and in the event an order of eviction is passed ultimately against the respondent tenant, the tenants will be evicted by the natural heirs and legal representatives of the deceased plaintiff who thereby shall take possession of the suit premises, but if ultimately the probate of the alleged will of the deceased plaintiff is granted by the competent court of law, the suit property would devolve on the appellant but not on the natural heirs and legal representative of the deceased. Therefore, in the event of grant of probate in favour of the appellant, he has to take legal proceeding against the natural heirs and legal representatives of the deceased plaintiff for recovery of possession of the suit premises from them which would involve not only huge expenses but also considerable time would be spent to get the suit premises recovered from the natural heirs and legal representatives of the deceased plaintiff. 16. 16. On the other hand, if the appellant is allowed to carry on the eviction petition along with the natural heirs and legal representatives of the deceased plaintiff, in that case a decree can be passed for eviction of the tenant when the appellant shall not be entitled to get possession from the tenants in respect of the suit premises until the probate in question is granted and produced before the court. Therefore, ultimately if the court grants a decree for eviction of the respondent tenant from the suit premises, such decree shall be passed subject to production of probate by the appellant. 17. That apart, since the question of genuineness of the will cannot be conclusively gone into by the court in a proceeding for substitution in a pending eviction suit and in view of the fact that an application was made at the instance of the appellant for impleadment as a legal representative of the deceased on the basis of the will which is yet to be probated, in our view, the best course open to the court is to allow impleadment of the appellant in the eviction proceeding, thereby permitting him to proceed with the eviction suit along with natural heirs and legal representatives of the deceased plaintiff, but in case the decree is to be passed for eviction of the tenant from the suit premises such eviction decree shall be subject to the grant of probate of the will alleged to have been executed by the deceased plaintiff. 18. At the same time, it is clear that in case the will of the deceased plaintiff is found not to be genuine and probate is not granted, the court shall proceed to grant the eviction decree in favour of Respondent 1 and not in favour of the appellant. It is well settled that in the event, the will is found to be genuine and probate is granted, only the appellant would be entitled to get an order of eviction of the respondent tenants from the suit premises excluding the claim of the natural heirs and legal representatives of the deceased plaintiff. 19. It is well settled that in the event, the will is found to be genuine and probate is granted, only the appellant would be entitled to get an order of eviction of the respondent tenants from the suit premises excluding the claim of the natural heirs and legal representatives of the deceased plaintiff. 19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. 20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. 21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. 22. If this process is followed, this would also avoid delay in disposal of the suit. 22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged will of the deceased plaintiff at this stage of the proceedings. 23. Before parting with this judgment, it is necessary to consider the decision of this Court in Jaladi Suguna v. Satya Sai Central Trust cited by the learned Senior Counsel for the appellant. In Jaladi Suguna this Court held that the intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative. 24. In view of the aforesaid discussions and in view of the decision in Jaladi Suguna, we are also of the view that in an eviction proceeding, when a legatee under a will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of the Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the Probate Court for a decision whether the will was genuine or not.” (Emphasis Supplied) 17. In Dashrath Rao Kate v. Brij Mohan Srivastava, (2010) 1 SCC 277 , a detailed inquiry to determine the legal representative of a deceased party on the basis of a Will had been held under Order 22 Rule 5 CPC, the question that arose for consideration was whether in such circumstances it would be necessary to lead fresh evidence to prove execution of the Will while deciding the suit. The apex court took the view that where for the purposes of determining as to who would be the legal representative a detailed inquiry had taken place, wherein the witnesses had been examined and cross-examined, there, in the context of that suit, the issue stood decided and no fresh determination was necessary while deciding the suit. The relevant observations to that effect are found in paragraph 29 of the judgment, as reported, which is reproduced below: “29. Therefore, it is clear that at least insofar as the suit in the present case is concerned, the question regarding the appellant’s right to represent was closed. There could be a second suit, questioning his entitlement on the basis of will, but admittedly, there is no such challenge by anybody to his status as a legatee of Sukhiabai. Insofar as the suit in the present case is concerned, the question was finally decided under Order 22 Rule 5 CPC and in the same suit it could not be reagitated. Obviously, the impugned judgment is incorrect when it holds that the appellant-plaintiff had to lead fresh evidence all over again to prove his status on the basis of the will, which was held to be proved in the enquiry under Order 22 Rule 5 CPC.” 18. Taking a conspectus of the provisions in the Code and the decisions noticed above, the legal principles that could be deduced therefrom, concerning substitution of legal representatives of a deceased party, are: (a) Where there is a dispute as to who would be legal representative of a deceased party, the Court has to first determine the issue, under Order 22 Rule 5 CPC, before proceeding further in the matter. (b) An enquiry under Order 22 Rule 5 CPC is to determine the legal representative for the purposes of pursuing the suit or proceeding and, ordinarily, such an enquiry is of summary nature. A finding returned therein would not amount to res judicata in between parties, who set up rival claim against legatee, in regular probate proceeding. But such finding would be final and operate as res judicata as regards that suit or proceeding and cannot be re-agitated at a subsequent stage in the same suit or proceeding. A finding returned therein would not amount to res judicata in between parties, who set up rival claim against legatee, in regular probate proceeding. But such finding would be final and operate as res judicata as regards that suit or proceeding and cannot be re-agitated at a subsequent stage in the same suit or proceeding. (c) Where the continuance of the suit or proceeding would depend upon decision on the issue as to whether a person is or is not the legal representatives of the deceased party, and other than that person or persons there is no one else to represent the estate of the deceased for the purposes of suing or being sued, the Court must determine the issue before proceeding further in the suit or proceeding and for that purpose, if required, may take such evidence, as may be necessary. (d) Where a person sets up a Will of a deceased party to claim substitution, and there are other natural heirs of the deceased party already on record or brought on record, to avoid unnecessary delay that might be caused on account of an inquiry as regards legality and validity of the Will, he may be impleaded along with other natural heirs of the deceased party even without a thorough enquiry as regards validity and legality of the Will, though subject to final determination of the rights of the parties in regular probate proceeding. Likewise, where a sole natural heir or one of the natural heirs of the deceased party is also a legatee of the deceased party, he may be impleaded as legal representative of the deceased party even without a thorough enquiry as regards validity or legality of the Will. (e) Where a serious dispute is raised as to whether a person is or is not a legal representative of the deceased party, either as natural heir or as legatee of the deceased party, and the suit or proceeding would abate but for impleadment of such person, the Court must decide the issue by taking evidence. And, in such cases, where the basis of the claim for impleadment is a Will, validity or legality of the Will would have to be tested after taking evidence in proof thereof. 19. Now, coming to the facts of the case, it is noticed that both plaintiffs had died. And, in such cases, where the basis of the claim for impleadment is a Will, validity or legality of the Will would have to be tested after taking evidence in proof thereof. 19. Now, coming to the facts of the case, it is noticed that both plaintiffs had died. The respondent had set up a Will to substitute himself in place of the plaintiffs. The petitioners denied execution of the Will and claimed that both plaintiffs had died issue less and the respondent was not their natural heir or legal representative and therefore the suit had abated. In such circumstances, whether the respondent was legal representative of the deceased plaintiff and entitled to pursue the suit had to be determined and such determination had to be by recording evidence as may be required by law to prove execution of a Will. 20. Admittedly, the trial court did not record any evidence to prove execution of the Will. It allowed the substitution application under the belief that since the Will was a registered document, and no other natural heir had come forward to challenge the Will, therefore substitution should be allowed. The revisional court, on the other hand, refused to interfere with the trial court's order by observing that the issue as regards validity of the Will could be raised in additional written statement and thereafter it could be dealt with as an issue while deciding the suit. 21. In my view, the approach of both the courts below is manifestly erroneous in law and against the mandate of Order 22 Rule 5 CPC for the following reasons. In a suit where both plaintiffs had died, the suit could be prosecuted only by a person who establishes himself to be legal representative of the deceased plaintiffs. Therefore, when there was serious objection of the petitioners about execution of the Will in favour of the respondent, and there was no natural heir of the plaintiffs on record who could pursue the suit or proceeding as their legal representative, the issue as to whether the respondent was a legal representative of the plaintiffs as his/their legatee, had to be determined upfront, after taking evidence, at the time of taking a decision on the substitution application, and not later, as suggested by the revisional court. Such a procedure when adopted would ensure that the defendant is not made to suffer the travails of litigation at the behest of a person on whom the right to sue does not even survive. Even otherwise, it is well settled that mere registration of a Will would not mean that the Will would not have to be proved as per law. 22. As, admittedly, the trial court did not record any evidence to prove execution of the Will, the order of substitution on the basis of the Will is unsustainable in law. 23. Consequently, and in view of the detailed discussion made above, the petition deserves to be allowed and is, accordingly, allowed. The orders dated 05.07.2012 and 25.05.2013 passed by the trial court and revisional court, respectively, are hereby set aside. The trial court shall restore the substitution application to its original number and take a fresh decision on it in accordance with law and in the light of the observations made herein above. 24. As, by an interim order passed in these proceedings, the proceedings of the court below had remained held up for the last over five years, a direction is issued upon the trial court to ensure expeditious consideration of the aforesaid substitution application. 25. There is no order as to costs.