The appeal was filed challenging the judgment and decree dated 6th June, 1987 and 14th July, 1987 passed by the 5th Additional District Judge, Indore in Civil Suit No.2 of 1972.
Against the said judgment and decree, appellant preferred First Appeal No.
That appeal was dismissed as abated on the ground that legatee under the Will executed by Rambhabai was number joined as party respondent.
It was for the respondent No.2 Shrikrishna Chourasia, 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 companytending that he is legal representative as the estate has devolved upon him on the basis of the Will.
Pending passing of final decree a document dated 7th July, 1961 was introduced by alleging that her son Appellant has relinquished all his rights and share in the property in her favour.
The trial companyrt held that appellant has relinquished his share by the said document and, therefore, final decree was passed holding that Rambhabai and Respondent No.1, Lalchand were having equal share in the said properties.
For setting aside the said abatement order the appellant preferred the aforesaid application which was rejected, hence this appeal.
She died on 9.11.1995.
However, in First Appeal No.80 of 1987 the application for dismissal of appeal as abated was dismissed and applicant was permitted to be impleaded as respondent No.2.
However, the question would be, whether Rambhabai has executed Will dated 20th August, 1980, in favour of Respondent No.2, Shrikrishna, and if so, by number joining him whether the appeal would abate?
80 of 1987.
Therefore, his right to sue survives and appellant was entitled to be substituted as legal representative of deceased Rambhabai.
Respondent No.2 has number obtained probate, hence companysidering the procedure prescribed under the above quoted Order XXII Rule 5, there is numberquestion of abatement of appeal.
A preliminary decree was passed in the said suit holding that appellant and his mother will get equal share i.e. 50 50 percent, in the property left by Dhanna Lal father of Lalchand.
During the pendency of the said appeal appellants mother Rambhabai died.
Undisputedly, the appellant is a legal heir of his mother Rambhabai.
Thereafter, respondent No.2, Shrikrishna S O Jitendra Kumar Chaurasia, filed an application in the High Court that he is L.R. of deceased Rambhabai as she has executed Will on 20th August, 1980 in his favour and as he has number been brought on record as legal representative of deceased in pending appeals, the same be dismissed as abated.
69 of 1987 and Lalchand preferred First Appeal No.
To that effect Lalchand also filed an application in the First Appeal which was also allowed by order dated 17th January, 1996.
On 13th March, 1997 both the appeals were placed before the companyrt and companyrt allowed the application and dismissed the appeal filed by the appellant as abated.
On such application being filed, the Court was required to determine it under Order XXII Rule 5.
That said document was denied by the appellant and the evidence was recorded by the trial companyrt.
The Suit was filed by Rambhabai for partition of the properties claiming to be joint family properties between herself, the appellant and respondent Lalchand S o Dhanna Lal Mahajan.
That application was allowed by order dated 1st February, 1996.
In both these appeals deceased Rambhabai was respondent No.1.
The appellant filed an application for substitution under Order XXII Rule 2 read with Section 151 P.C. companytending that he was the son of deceased Rambhabai and was the sole legal representative and the name of respondent No.1, Rambhabai, be deleted from the cause list.
283 of 1998 for setting aside the abatement order passed in First Appeal No.
It is also companytrary to order XXII Rule 5, which is as under Determination of question as to legal representative Where a question arises as to whether any person is or is number 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 companysideration in determining the question.
The appellant Mahendra Kumar filed M.C.C. No.
Phukan, J. LITTTTTTTJ Leave granted.
69 of 1987.
