JUDGMENT : Vivek Singh Thakur, J. CMP (M) No. 1586, 1587 of 2019 & CMP No. 10696 of 2019 These applications have been filed by Ranveer Chand who is son of late Bhandari Lal (defendant No. 1) and late Khayala Devi (plaintiff) and is already on record as respondent-defendant No. 1(a) alongwith other legal heirs of deceased Bhandari Ram, brought on record as such on application filed by Khayala Devi during her life time on death of Bhandari Ram. Now Khayala Devi has expired. 2. Application CMP (M) No. 1587 of 2019 has been filed under Order 22 Rule 1, 3 and 9 of the Code of Civil Procedure for bringing on record Ranvir Chand (applicant) as legal representative of plaintiff Khayala Devi after setting aside abatement if any. 3. Application CMP (M) No. 1586 of 2019 has been filed under Section 5 of the Limitation Act for condonation of delay in filing CMP (M) No. 1587 of 2019. 4. CMP No. 10696 of 2019 has been filed under Order 1 Rule 10 and 23 Rule 1A of the Code of Civil Procedure for transposition of Ranvir Chand (applicant), as appellant, claiming him sole legal heir of deceased appellant-plaintiff Khayala Devi, who has been brought on record as respondent No. 1(a) by late Khayala Devi, after death of defendant No. 1 Bhandari, being his legal heir. 5. Plaintiff Khayala Devi was wife of Bhandari (defendant No. 1) and defendant No. 2 Somu Ram was brother of Bhandari. Legal heirs of Bhandari and Khayala Devi are common. 6. Civil Suit No. 99 of 2005 was filed by Khayala Devi for declaration that she had become owner of the land comprised in Khasra No. 666/517, situated in Phati Mohal, Kothi Khokan, Tehsil and District Kullu alongwith residential house situated over it to the extent of half share by claiming that the said land alongwith house was given by defendant No. 1 to her about 60 years back in lieu of maintenance and by virtue of operation of law, i.e. Section 14 of the Hindu Succession Act she had become absolute owner of the said property, and, therefore, gift deed dated 21.4.2005 purported to have been executed by Bhandari Lal in favour of defendant No. 2, was null and void with further prayer to restrain the defendants from creating any charge over the suit land and dispossessing the plaintiff from it. Aforesaid Civil Suit was dismissed by the Trial Court on 26.3.2008. 7. Civil Appeal No. 18 of 2008, preferred by plaintiff Khayala Devi was dismissed on 24.8.2009. Thereafter, present appeal was preferred by her in September, 2009. 8. Defendant No. 1 Bhandari had expired on 3.9.2010, whereafter, on application filed by Khayala Devi (plaintiff), vide order dated 11.4.2021 passed in CMP (M) No. 218 of 2011, legal heirs of Bhandari including applicant Ranveer Chandwere permitted to be brought on record. 9. Plaintiff Khayala Devi and defendant No. 1 Bhandari were having two sons namely Ranvir Thakur (Ranveer Chand) and Sher Chand Thakur and one daughter Vidya Thakur. Sher Chand had expired prior to death of Bhandari, leaving behind his wife Dr. Shashi and daughters Dr. Navedita and Ms.Shivani. At the time of death of Bhandari Lal, his surviving legal heirs were Khayala Devi (wife), Ranvir Thakur (son), Vidya Devi (daughter) and legal heirs of pre-deceased Sher Chand Thakur i.e. Dr. Shashi (daughter-in-law) alongwith Nivedita and Shivani (granddaughters). Khayala Devi was plaintiff/appellant who had filed suit against Bhandari Lal. Therefore, rest of legal heirs, in furtherance to order dated 11.4.2011 were arrayed as defendants/respondents No. 1(a) to 1(e). 10. After service of respondents No. 1(a) to 1(e), respondent No. 1(a) Ranvir Thakur (applicant herein) engaged Mr. Sunil Chaudhary, Advocate to represent him, who filed Power of Attorney on his behalf. Similarly, respondents No. 1(b) to 1(e) were also served and Mr. Ashok Sood, Advocate had put in appearance on their behalf. Later on, after designation of Mr. Ashok Sood, as Senior Advocate, learned counsel appearing on behalf of respondents No. 1(b) to 1(e), from the office of Mr. Ashok Sood expressed his inability to represent them, in absence of Power of Attorney, for want of instructions and thereafter fresh notices were directed to be issued to these respondents vide order dated 6.8.2018. 11. Plaintiff Khayala Devi expired on 20.4.2019, whereafter these applications have been preferred by Ranvir Thakur for his substitution/transposition as plaintiff/appellant in place of his deceased mother Khayala Devi. 12. In the plaint, it was alleged that defendant No. 1 Bhandari Lal was in control and influence of his daughter-in-law Kaushalya Devi as well as defendant No. 2 Somu, brother of defendant No. 1 and under their influence he started living separately from plaintiff Khayala Devi, but alongwith his daughter-in-law and granddaughters. Kaushalya Devi is wife of Ranveer. 13. 12. In the plaint, it was alleged that defendant No. 1 Bhandari Lal was in control and influence of his daughter-in-law Kaushalya Devi as well as defendant No. 2 Somu, brother of defendant No. 1 and under their influence he started living separately from plaintiff Khayala Devi, but alongwith his daughter-in-law and granddaughters. Kaushalya Devi is wife of Ranveer. 13. In written statement filed jointly by defendants No. 1 and 2, it was alleged that plaintiff Khayala Devi and Ranvir were giving merciless beatings to defendant No. 1 to compel him to transfer his entire holdings in their favour and, therefore, defendant No. 1 Bhandari was compelled to left his house and live separately in village Bhuntar. It was further stated in the written statement that, however, defendant No. 1 Bhandari had again joined the company of Khayala Devi and Ranvir after executing Will dated 13.3.2002 in favour of Ranvir, but despite that they did not change their behavior, but became more cruel and defendant No. 1 was turned out from the house in the month of November, 2003 by Ranvir and thereafter defendant No. 1 started residing separately at different place in rented accommodation with his daughter-in-law and four granddaughters (wife and daughters of Ranveer) and consequently he revoked earlier Will and executed fresh Will on 31.12.2003 in favour of his brother defendant No. 2, daughter Vidya Thakur and two daughters of pre-deceased son Sher Chand Thakur and four daughters of Ranvir Chand. 14. Learned counsel for contesting respondents have opposed the prayer made by the applicant on the ground that keeping in view the nature of plaint and claim set up by plaintiff Khayala Devi, right to sue does not survive in favour of Ranvir Chand or any other legal heirs and, therefore, these applications deserve to be dismissed and further that applicant was arrayed as respondent/defendant No. 1(a) after death of Bhandari, but at that time he did not object to the same and, therefore, now, his prayer for his substitution or transposition as plaintiff being legal heir of Khayala Devi, is not sustainable as he cannot blow hot and cold together because either he has to claim his right as a legal heir of defendant No. 1 or plaintiff whose interests are in clash with each other. 15. 15. Claim of the applicant is that, as apparent from the pleadings, Ranvir was living with his mother Khayala Devi in the suit property and was intermeddling with the same during life time of his mother and thereafter also he is in possession of the property in dispute, and further that after arraying him as respondent No. 1(a) he had approached the Advocate and had narrated entire facts of the case, but he was never advised by the Advocate to object his impleadment as respondent No. 1(a) and being a common man, applicant Ranvir was not having ability to visualize the effect of arraying or substituting him as respondent/defendant No. 1(a). It has been further submitted that in CMP (M) No. 218 of 2011 not only applicant Ranvir, but his mother Khayala Devi (plaintiff) was also reflected as legal heirs of defendant No. 1 Bhandari, to be substituted in place of defendant No. 1, but she was not substituted as she was opponent of defendant No.1 in present lis. It has been further submitted that considering the pleadings of the parties in the plaint as well as written statement, it can be inferred that Ranvir was living with his mother Khayala Devi, as defendant No. 1 in his written statement had categorically stated that Khayala Devi and Ranvir were beating and maltreating defendant No. 1 for transferring the property in dispute in their favour and Ranveer had turned out him (Bhandari) from house. 16. Ranvir is one of legal heirs of Khayala Devi. Plaintiff and defendant No. 1 were husband and wife and they are having common legal heirs. Ranvir is one of their legal heirs. Bhandari Lal had executed gift deed as well as Will with respect to his property in exclusion of some legal heirs, whereas his wife plaintiff was claiming half share of the property referred in the plaint as an absolute owner. In case of her claim is accepted by the Court, after her death, such property is to be devolved upon her legal heirs. Therefore, right to sue survives for the legal heirs and Ranvir is one of the legal heirs and, therefore, he has a right to maintain the prayer for his impleadment/transposing as plaintiff/appellant. 17. In case of her claim is accepted by the Court, after her death, such property is to be devolved upon her legal heirs. Therefore, right to sue survives for the legal heirs and Ranvir is one of the legal heirs and, therefore, he has a right to maintain the prayer for his impleadment/transposing as plaintiff/appellant. 17. Further claim of Ranveer that he is entitled for inheriting entire property of Khayala Devi, is not to be decided in present applications or in present suit as in present suit claim of Khayala Devi is to be adjudicated and in case her suit is decreed, then, because of her death, the property has to be devolved upon all legal heirs or some of them or one of them on the basis of Will or other valid instrument if any, executed by her and in absence of any such instrument/deed, the property shall devolve upon all surviving legal heirs according to their right to inherit the same. 18. In applications filed under Order 22 or under Order 1 Rule 10 of the Code of Civil Procedure, question of entitlement of the property amongst the legal heirs is not to be decided. Therefore, the issue, as to whether Ranvir is entitled for inheritance of property of Khayala Devi or not, is not being decided in these applications. However, in the given facts and circumstances, he is permitted to be brought on record as appellant No. 1(a) being legal representative of deceased plaintiff/appellant, only for the purpose of continuation of the appeal and his right as well as rights of other legal heirs of Khayala Devi on any dispute arising between them, are to be adjudicated in separate appropriate proceedings and for allowing Ranvir to be arrayed as a legal representative of deceased Khayala Devi, shall not create any right, interest or entitlement in his favour in the suit property as he is being impleaded/substituted/transposed only for continuation of present appeal by arraying him on behalf of all legal representative of Khayala Devi, entitled to inherit her property. 19. In view of above discussion, for above observation, these applications are allowed and Ranvir is permitted to be substituted in place of Khayala Devi as her legal representative for the purpose of continuation of appeal by transposing him from respondent No. 1(a) to appellant No. 1(a), after setting aside abatement and condoning the delay, if any. 20. 19. In view of above discussion, for above observation, these applications are allowed and Ranvir is permitted to be substituted in place of Khayala Devi as her legal representative for the purpose of continuation of appeal by transposing him from respondent No. 1(a) to appellant No. 1(a), after setting aside abatement and condoning the delay, if any. 20. Accordingly name of Ranveer as respondent No. 1(a) stands deleted by transposing and impleading him as appellant No. 1(a). Applications are allowed and disposed of in the aforesaid terms. CMP No. 10697 of 2019 1. This application has been filed seeking permission to delete respondents No. 1 (c) to 1(e) on the ground that after passing order dated 6.8.2018 by the court to serve these respondents, they could not be served despite repeated attempts by taking appropriate steps. It has been submitted that deletion of these respondents will not cause any prejudice to other respondents and will not hamper their lawful interest in any manner, as these respondents are grand-daughters of deceased Bhandari Lal, who are well settled and are neither showing any interest to impart instructions to their counsel nor accepting service through Court notices since last 9 months till filing of application. 2. It has also been submitted that deletion of these respondents would smooth the progress of advancing substantial justice to all the parties more specially keeping advance age of appellant, i.e. 93 years. 3. This application has been filed in August, 2019 through applicant Ranvir Chand, whereas Khayala Devi had expired on 20.4.2019. Therefore plea taken that appellant is 93 years old is not correct as she was not alive at the time of filing this application. Otherwise it is not a valid ground for deletion of necessary party. It appears that there is complete non application of mind in drafting and filing this application. 4. The application is misconceived as no necessary party to the lis, having right and interest in the property is to be deleted for want of service. These respondents are not only legal heirs of defendant No. 1 Bhandari Lal, but also plaintiff Khayala Devi and they were arrayed as party on the application filed by Khayala Devi during her life time after death of defendant No. 1 Bhandari Lal, therefore, they are necessary party to the lis for proper final and complete adjudication of the matter. 5. 5. Taking into consideration pleadings in the application, I do not find any merit in this application and accordingly the same is dismissed.