ORDER : This Civil Revision Petition challenges a decretal order dated 12.10.2007 passed in I.A.No.610 of 2002 in O.S.No.1039 of 1979 on the file of the learned II Additional Subordinate Judge, Tiruchirappalli. 2. An interesting issue arises in this case. O.S. No. 1039 of 1979 was filed by one Ganapathi arraying K.M. Subramania Pillai and Pappal as 1st and 2nd defendants respectively. Ganapathy was the son of K.M. Subramania Pillai through his first wife. Pappal was the fourth wife of K.M. Subramania Pillai and the couple had had no issues. Various disputes had arisen between the first defendant and other family members and a partition had been effected on 12.05.1930 between Subramania Pillai and his uncle relating to ancestral joint family properties. 3. The plaintiff herein claimed a share in the properties of his father. The prayer in the suit is for partition and separate possession of a share in the suit properties, which, according to the plaintiff, amounted to one half. 4. The suit was decreed in favour of the plaintiff and as against the decree and judgment, Pappal preferred an appeal before the High Court in A.S. No. 463 of 1982. The appeal was disposed of on 09.09.1987, holding that the plaintiff, Ganapathy was entitled to 3/4th share in the suit properties and Pappal to 1/4th. 5. Pappal subsequently come to know about a Will dated 20.08.1979 executed by Subramania Pillai and filed a Review Petition before the Madras High Court in C.M.P. No. 8990 1992 contending entitlement to + share of the properties. Ganapathy had, in the meantime, filed I.A. No. 189 of 1982 seeking a final decree, before the Subordinate Court, Tiruchirappalli. 6. The review petition was allowed and the decree was modified restricting Ganapathy's share to ½ as against s originally ordered. Ganapathy passed away during the pendency of the review petition and his wife Malathi had been impleaded in the capacity of his legal heir. 7. Out of the blue, in the year 2002, a third party by name Suresh Kumar, filed an affidavit dated 10.03.2002 under Order 1 Rule 10 and Section 151 of the C.P.C seeking his impleadment as a necessary party to the suit proceedings and stating that Pappal had, being of sound mind, executed a registered Will dated 29.10.1987 prior to her demise on 24.12.2001. According to Suresh Kumar, he was a legatee under the Will that had been duly executed, attested and registered, entitled to succeed to the share of Pappal under the same. On the aforesaid basis the said Suresh Kumar sought impleadment in the proceedings. 8. A counter was filed by Malathi, the revision petitioner herein and legal heir of Ganapathy, the original plaintiff, objecting to the prayer of Suresh Kumar on the ground that it was frivolous and misconceived. 9. According to Malathi, by virtue of being the wife of Ganapathy, the original plaintiff and the daughter-in-law of Supramania Pillai, since deceased, she was entitled to the entire suit property pursuant to the order in review petition dated 29.04.1992. Pappal, the fourth wife of Subramania Pillai had died issueless and thus, the entitlement of ½ share by virtue of the order in the review petition would also devolve on Malathi. 10. The new-found Will dated 29.10.1987 was vehemently opposed as being fabricated. Malathi also argued that even assuming that Suresh Kumar was a legatee under the Will, he was not a legal heir of Pappal and since the Will was itself under a cloud, he could agitate his rights only by way of a separate suit, if at all. 11. According to Malathi, the provisions of Order 1 Rule 10 of C.P.C. would be inapplicable in the present case since the deponent Suresh Kumar was admittedly only a legatee and not a legal representative. Malathi relied upon the preliminary decree dated 10.12.1981 stating that upon passing of the preliminary decree, right to sue would not survive upon a legatee, even assuming that Suresh Kumar was one. The prayer for impleadment of Suresh Kumar was however, allowed by the learned II Additional Subordinate Judge, Tiruchirappalli, holding him to be a necessary party, by impugned order dated 12.10.2007, against which the present CRP has been filed. 12. Heard Mr. AR.L. Sundaresan, learned senior counsel for the petitioner. Notice was issued to the respondents that has been duly served by way of paper publication. The name of the respondents have also been duly printed, despite which there is no appearance on their behalf. Service is thus deemed sufficient. 13. The facts as narrated above emanate out of the pleadings filed that are on record. It is not in dispute that Suresh Kumar is not a legal heir of Pappal. He does not aver so. The name of the respondents have also been duly printed, despite which there is no appearance on their behalf. Service is thus deemed sufficient. 13. The facts as narrated above emanate out of the pleadings filed that are on record. It is not in dispute that Suresh Kumar is not a legal heir of Pappal. He does not aver so. In fact, his case is itself, as may be seen from his affidavit dated 10.03.2002, only that he is a legatee under Pappals' Will. 14. Order 1 Rule 10 of the C.P.C. addresses a situation where a suit has been filed in the name of a wrong plaintiff and the measures to be taken in such a case by striking off or adding parties. Sub-Rule 4 provides for the amendment of the plaint when a defendant is added to the suit proceedings. 15. I am of the view that the provisions of Order 1 Rule 10 are wholly inapplicable in the present case. On the other hand, the provisions of Order 22 Rule 4 of C.P.C, would apply and read thus:- '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 defendants 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. ........' 16. The provisions of Order 22 Rule 4 provide for any person to be made a party to a suit who carries the status of legal representative. Suresh Kumar claims only to be a legatee. The question whether all legatees would be legal representatives is one that has not been addressed in the impugned order probably for the reason that the provisions were not adverted to. 17. Furthermore, the Will in this case, based on which Suresh Kumar claims to be a legatee, is itself seriously in dispute. The question whether all legatees would be legal representatives is one that has not been addressed in the impugned order probably for the reason that the provisions were not adverted to. 17. Furthermore, the Will in this case, based on which Suresh Kumar claims to be a legatee, is itself seriously in dispute. The application of Order 22 Rule 4 is conditional upon the undisputed veracity and genuineness of the status of the person claiming to be a legal representative. Only upon such adjudication can one determine whether Suresh Kumar is a necessary or even appropriate party to the proceedings. 18. The impugned order proceeds on the basis that 'there is a Will in the name of the petitioner' without reference to the serious dispute regarding the document at the threashhold by the respondent, the petitioner herein. Section 68 of the Indian Evidence Act requires proof of execution of the document prior to admissions of the same in the proceedings. Thus, it was necessary for the Will to have been proved prior to the learned Judge coming to the aforesaid conclusion. Section 68 reads thus:- '68. Proof of execution of document required by law to be attested.’” If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]..' 19. It was thus, incumbent upon the learned Judge to have, as a preliminary position, directed the party producing and relying upon the Will to prove the same as a genuine document. 20. Order 22 Rule 4(2) states that a defence may be set forth by the party in the case of death of defendant appropriate to his character as legal representative of deceased defendant. The presumption thus is that the person so impleaded is a legal representative. Such presumption would flow only if the Will itself was a genuine document. 20. Order 22 Rule 4(2) states that a defence may be set forth by the party in the case of death of defendant appropriate to his character as legal representative of deceased defendant. The presumption thus is that the person so impleaded is a legal representative. Such presumption would flow only if the Will itself was a genuine document. This has not been established in the present case. The conclusion of the learned Subordinate Judge to the effect that all parties who pray impleadment should be so impleaded cannot also be countenanced. He further observes that such impleadment will not prejudice the proceedings in any manner. This conclusion is clearly premature insofar as the impleadment of a party on the basis of a non-genuine document, as is the claim of the petitioner herein, would certainly prejudice the parties. 21. The CRP is allowed and the impugned order is set aside. The learned Judge will first adjudicate upon the genuiness of the document and take a decision only thereafter, and consequentially upon the impleadment of Suresh Kumar. The entire exercise will be completed within 30 days from the date of receipt of this order. No Costs. Consequently, connected miscellaneous petition is closed.