# Munni Lal And Others v. Board of Revenue and Others

- **Citation:** (2019) 1 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Writ - B No. 502 of 1994
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munni-lal-and-others-v-board-of-revenue-and-others-44401
- **Pages:** 10

## Headnote

Reforms Act, 1950- Sections 229B
and 209 - Code of Civil Procedure,
1908-Order-XXII Rule 5 and OrderXLI Rule 25. The court should retain
the session of this appeal to itself
and remand the case to the trial
court as provided under order XLI
rule 25 for holding an inquiry and on
receipt of the finding, finally decide
the appeal.
Whether it is open to a court where more
claims than one are setup for substitution
in case of a deceased party, to permit
multiple parties with rival claims or
interest to be substituted in place of the
original plaintiff/respondent/appellant, or
the Court is obliged to adjudicate the
issue under order XXII Rule 5 and decide
in favour of one of them?- (Paras 10 to
17)

Allowed. (E-6)

## Text

1 All. Munni Lal And Others Vs. Board of Revenue and Others
1059
Appeal by this Court, has been held to be
inoperative and illegal. The ex parte
decree dated 16.03.1981, passed in
Original Suit no.355 of 1970 reads as
under:

"िमिी कम िमि प्रभतिमिीगण के भिरुद्ध एकपक्षीय
रूप से एकपक्षीयcost सभहत भडक्री भकयम जमतम है। िमि सां०384
सन्1965 में िमिी के भिरुद्ध पमररत की गयी भडक्रीयमाँ अिैिमभनक
और प्रिमिहीन घोभषत की जमती है।"

15. Now, the application for
mutation out of which these proceedings
arise has been moved on the foot of the
decree passed in Original Suit no.384 of
1965, and all subsequent proceedings
arising out of the said decree, including
execution. Once the decree passed in the
said suit, and resultantly all consequential
proceedings are rendered void by dint of
ex parte decree dated 16.03.1981 passed
in suit no.355 of 1970, no rights based on
the decree passed in Original Suit no.384
of 1965, or any consequential proceedings
can be claimed by the petitioners,
including the right to mutation of their
names in the revenue records. The Deputy
Director of Consolidation, Parayagraj
(then
Allahabad),
therefore,
rightly
construed the rights of the parties to
mutation of their names by proceeding on
the basis of the ex parte decree dated
16.03.1981 passed in Original Suit no.355
of 1970, and rightly reversed the orders
granting mutation in favour of the
petitioners under Section 12, based on a
decree that has now been held inoperative
and illegal, by means of the ex parte
decree
dated
16.03.1981
passed
in
Original Suit no.355 of 1970.

16. The position of law about an ex
parte decree is clear that so long as an ex
parte decree remains intact, it is as much a
decree as one on merits. It carries the
same force. In this connection, it may be
gainful to refer to the decision of the
Supreme Court in Vijay Singh v. Shanti
Devi, (2017) 8 SCC 837, where their
Lordships have held:

"12. ............ There is no manner
of doubt that an ex parte decree is also a
valid decree. It has the same force as a
decree which is passed on contest. As
long as the ex parte decree is not recalled
or set aside, it is legal and binding upon
the parties."

17. It goes without saying that if the
decree dated 16.03.1981 is set aside in any
competent
proceedings,
including
the
pending Application under Order IX Rule 13
CPC, the petitioners' right to seek mutation
or to the restoration of their mutation, if
already made would revive. But as of date,
till the decree passed in Original Suit no.355
of 1970, remains operative, no fault can be
found with the impugned order passed by the
Deputy Director of Consolidation, declining
to grant mutation in favour of the petitioners,
reversing the two authorities below, who
granted mutation in favour of the petitioners.

18. In the result, there is no force in this
petition. It stands dismissed. Costs easy.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - B No. 502 of 1994

Munni Lal And Others ...Petitioners
Versus
Board of Revenue and Others
 ...Respondents
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Triveni Shankar, Sri Awadesh Kumar

Counsel for the Respondents:
---

A. U.P. Zamindari Abolition and Land
Reforms Act, 1950- Sections 229B
and 209 - Code of Civil Procedure,
1908-Order-XXII Rule 5 and OrderXLI Rule 25. The court should retain
the session of this appeal to itself
and remand the case to the trial
court as provided under order XLI
rule 25 for holding an inquiry and on
receipt of the finding, finally decide
the appeal.
Whether it is open to a court where more
claims than one are setup for substitution
in case of a deceased party, to permit
multiple parties with rival claims or
interest to be substituted in place of the
original plaintiff/respondent/appellant, or
the Court is obliged to adjudicate the
issue under order XXII Rule 5 and decide
in favour of one of them?- (Paras 10 to
17)

Allowed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Awadhesh Kumar, learned
Advocate holding brief of Sri Triveni
Shankar,
learned
counsel
for
the
petitioners, Sri Rajesh Kumar, learned
Standing Counsel appearing on behalf of
respondent nos.1 & 2. No one appears for
respondent
no.3,
Gaon
Sabha
or
respondent nos.4, 5 & 6.

2. This writ petition has been filed
challenging an order dated 14.12.1993
passed by the Board of Revenue, U.P. at
Allahabad in Second Appeal no.44/197677, whereby the Board have ordered that
upon death of Raja Ram (respondent no.1
to the appeal), his daughters, Smt.
Parbatia
and
Smt.
Phulbatia,
be
substituted in his place, and by the same
order one Kariman (respondent no.6 to
this petition) has also been permitted to be
substituted in place of deceased Raja
Ram, in the second appeal aforesaid.
Kariman has been permitted to be
substituted on the basis of the last will and
testament said to have been executed by
Raja Ram in favour of Kariman.

3. The question that arises for
consideration in this petition is: Whether
it is open to a Court where more claims
than one are set up for substitution in
place of a deceased party, to permit
multiple parties with rival claims or
interest to be substituted in place of the
original plaintiff/ respondent/ appellant,
or the Court is obliged to adjudicate the
issue under Order XXII Rule 5 CPC, and
decide in favour of one of them?

4. The second appeal before the
Board arises from a suit under Section
229B and Section 209 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act (for short ''the Act') relating
to certain lands situated in Village Nigai,
Pargana
Agori,
Tehsil
Robertsganj,
District
Mirzapur
(now
district
Sonebhadra). The property subject matter
of the suit comprises plot nos.1642/0-150, 1647/2-4-0, 1648/1-13-0, 1649/5-14-0,
1657/2-0-0, 1658/0-5-0, 1641/2040/3-190, totalling seven gata numbers, area 1610-0. The said property is hereinafter
referred to as the ''suit property'. The
petitioners are the plaintiffs in the suit,
that was instituted by their father against
defendants, Raja Ram, the State of U.P.
and
the
Gaon
Sabha,
seeking
a
declaration that the suit property wherein
1 All. Munni Lal And Others Vs. Board of Revenue and Others
1061
name of defendant no.1 to the suit, Raja
Ram has been recorded by mistake, be
expunged and the first defendant be
dispossessed from the suit property by a
decree of ejectment.

5. It is the plaint case that the
original plaintiff, Ramkesh, father of the
petitioners, was sirdar in possession of
the suit property. Ramkesh had two
brothers, Ram Lakhan and Ram Bilas,
both of whom died issueless. As such,
Ramkesh was the sole heir, entitled to
succeed to the estate of his deceased
brothers, Ram Lakhan and Ram Bilas. It
is further averred in the plaint that the
name of defendant no.1 to the suit, Raja
Ram, was wrongly recorded over the suit
property. It was also averred in the plaint
that at a time when the plaintiff was
minor, he gave the suit property to
defendant no.1 on a crop sharing basis to
cultivate.
Thereafter,
defendant
no.1
withdrew his possession, which was
handed over to the plaintiff. The first
defendant had no concern with the suit
property. Somehow, the Lekhpal illegally
got his name recorded in the remarks
column, compelling the plaintiff to file
the suit.

6. The suit was contested by Raja
Ram, the defendant, who is the sixth
respondent to this petition, by filing a
written statement. He denied the plaint
allegations and asserted that he is in
possession over the suit property since
before the date of vesting. He urged that
his right matured, and he had acquired
title under Section 210 of the Act. It was
also argued that the plaintiff's case of
settlement of the suit property on a crop
sharing basis was incorrect. The suit was
time barred. The plaintiff was not sirdar
or in possession of the suit property. It
was also pleaded that during record
operations, it was defendant no.1, Raja
Ram, who was found in possession. The
Trial Court dismissed the suit by its
judgment and decree of 21st December,
1974. The plaintiff appealed the Trial
Court's judgment and decree.

7. The Additional Commissioner,
before whom the appeal came up for
determination, on 18.09.1976 affirmed the
Trial Court's decree and dismissed the
appeal. An appeal from the appellate
decree was carried to the Board of
Revenue by the original plaintiff, that is to
say, Ramkesh, being Second Appeal
no.44 of 1976-77, District Mirzapur
(presently
district
Sonebhadra).
The
appeal was admitted to hearing. Pending
this
appeal,
the
original
plaintiff,
Ramkesh, passed away and so did Raja
Ram,
original
defendant
no.1.
The
petitioners filed a belated substitution
application on 23.10.1992, along with a
delay condonation application. It is
common ground between parties that the
substitution application made by the
petitioners in the pending second appeal,
seeking to be substituted in place of their
father, the original plaintiff, Ramkesh was
granted, and they were substituted in his
stead. So far as the deceased defendant,
Raja Ram is concerned, he is survived by
three daughters, one of them Raimati had
died long back. Raja Ram is said to have
executed a will in favour of Kariman son
of Nand Lal (son of deceased Raimati). It
was further brought on record that in the
survey record operations, name of Munni
Lal, Babu Lal and Vikram (the writ
petitioners),
who
were
found
in
possession of the suit property were
recorded
as
bhumidhar
under
the
guardianship of their mother, Chhaiwa,
and the name of Raja Ram recorded in
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
class-9 was struck off on the basis of an
order dated 04.03.1992, passed in Misc.
Case no.1038.

8. The application of Kariman sought
to substitute him in place of Raja Ram to
prosecute the appeal. After the aforesaid
substitution application was filed on behalf
of Kariman, who was residing in the village
where the suit property is situate, the name
of the petitioners came to be recorded
during the record operations as already said.
Kariman entered into a compromise with
the petitioners. A compromise was filed
before the Board on 02.11.1992. By an
order dated 05.11.1992, the Board of
Revenue sent the compromise before the
Trial Court for verification. It is pleaded in
the writ petition that along with the
compromise, an application under Order
XXIII, Rule 3B CPC, was also filed by the
petitioners to compromise the matter
through their next friend and mother,
Chhaiwa. The compromise was duly
verified
on
10.03.1993.
Once
the
compromise dated 10.02.1993 was verified,
Smt. Parvatia and Phulmatia, the two
daughters of the deceased of defendant,
Raja Ram, filed an application for
substitution, as well as an application
seeking abatement of the appeal and
striking off the name of Kariman from the
array of parties to the second appeal before
the Board. The will executed by the late
Raja Ram in favour of Kariman was
impugned in the application made by his
daughters. Now, before the Board an
objection was filed by the petitioners to the
substitution sought by Smt. Parvatia and
Phulmatia.

9. The application for substitution
on behalf of daughters of Raja Ram was
resisted by the petitioners, and also by
Kariman. The petitioners filed an application
on 08.11.1993 before the Board, along with
the original will dated 08.09.1991, executed
by Raja Ram in favour of Kariman with a
prayer to direct the Trial Court to take
evidence and to decide the genuineness of
the will, as well as the question as to who
were
the
actual
heirs
and
legal
representatives of Raja Ram, in accordance
with the provisions of Order XXII, Rule 5
CPC. The said application was moved on
08.11.1993. The controversy that, thus,
emerged in the pending appeal before the
Board of Revenue is that the deceased, Raja
Ram had executed a will in favour of
Kariman, the son of a pre-deceased daughter,
who had also been substituted. The question
was about his right to represent the deceased
defendant, Raja Ram in the second appeal, a
right which the daughters of the deceased
defendant, Smt. Parvatia and Phulmatia,
claimed as his lawful heirs and legal
representatives. The Board of Revenue
despite an application being made requesting
that the question as to who is the legal
representative of deceased defendant Raja
Ram, without deciding the question aforesaid
at all, permitted Smt. Parvatia and Phulmatia
to be substituted, also as heirs in place of the
defendant along with Kariman, the grandson
of defendant, Raja Ram, by means of the
impugned order dated 14.12.1993.

10. It appears that the Board,
though, without saying so expressly, has
proceeded on foot of the reasoning that
where more than one or multiple and rival
claims to substitution are brought, a
substitution permitted in itself not being
decisive of the right of parties to a
beneficial interest in the estate of the
deceased, or the property, all the rival
claims to substitution ought to be allowed.

11. Learned counsel for the
petitioners has pointed out that this course
1 All. Munni Lal And Others Vs. Board of Revenue and Others
1063
of action is not in accordance with law.
He has invited the attention of this Court
to the provisions of Order XXII Rule 5
CPC, that read thus:

"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."

12. Sri Rajesh Kumar, learned
Standing Counsel has defended the order
passed by the Board of Revenue and said
that since an order of mutation does not
decide the entitlement of parties, the
petitioners cannot urge that any prejudice
is caused by the order impugned passed in
the substitution matter. He points out that
permitting all persons who claim to be
legal representatives of the deceased
defendant to be substituted, would enable
the Court to ultimately consider the case
of each one of them, and thus, eschew
multiplicity of litigation, that may arise in
consequence of refusal to a particular
party.

13. In support of his contention,
learned counsel for the petitioners has
placed reliance upon a decision of the
Supreme Court in Jaladi Suguna (Dead)
through L. Rs. v. Satya Sai Central
Trust & others, (2008) 8 SCC 521,
where in paragraph 15 of the report, it has
been held:

"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. 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."

14. Learned counsel for the
petitioners, Sri Awadhesh Kumar further
placed reliance in support of the aforesaid
position of law upon a decision of the
Supreme Court in Mahanth Satyanand
@ Ramjee Singh vs. Shyam Lal
Chauhan, 2018 (141) RD 225, where the
question in the context of facts involved,
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
has been considered by their Lordships in
paragraphs 5, 7, 8, 9, 10 & 11 of the
report, which read thus:

"5. The main contention of the
appellants is that the High Court has
committed a grave error of law by allowing
both the impleadment applications preferred
by the rival contenders staking claim to be the
genuine legal representatives of the deceased,
without determining the question under the
prescribed provisions of law as to who is the
legal representative of the deceased appellant.
The High Court's order is not in consonance
with the provisions of Order 22 Rule 5 of
CPC and it is unjust that instead of deciding
the paramount question, the High Court had
simply passed the order entitling both the
contenders to raise their respective arguments
in the subject matter of Suit. The order of the
High Court is perverse, not in the interest of
justice and contrary to the settled principles of
law.

7. Then the issue that crops up for
consideration is, what is the course to be
adopted by the Court when such an
applications are filed before the Court.

8. The procedural aspect to be
followed when an application is filed
under Order 22 Rule 5, CPC is no longer
res integra as this Court in Jaladi Suguna
(deceased) through Lrs. v. Satya Sai
Central Trust, (2008) 8 SCC 521, has
interpreted Order 22 Rule 5 of CPC in the
following terms:

"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 provisions of Rule IV and V of
Order XXII 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.

 .........

Though
Rule
V
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)
1 All. Munni Lal And Others Vs. Board of Revenue and Others
1065

9. Perceiving the present case in
the above framework, the High Court,
after
noticing
that
two
individual
applicants have claimed to be the chelas
of the deceased Mahanth and were
contending to be his legal representatives,
has rightly by an order dated 2nd July,
2008
referred
the
matter
to
the
Subordinate
Judge,
Bhabhua
for
determination under Order 22 Rule 5 of
CPC. Accordingly, the trial Court decided
the question and sent back the matter with
its report dated 4th December, 2008.
Before the High Court, the rival contender
has filed an objection and in response to
the same, the other applicant has filed his
counter affidavit. Thereafter, the High
Court, instead of deciding on merits the
question of legal representative of the
deceased out of the two contenders, has
simply substituted both the contenders in
the place of the deceased appellant before
it.

10. Apparently, the issue of
bringing on record the legal representative
in a pending appeal has to be dealt with in
a manner prescribed under the provisions
of Order 22 Rule 5. From the context of
the settled legal position, it is clear that
when a question arises before the Court in
a pending matter as to who will come on
record as the legal heir of the deceased,
the Court shall, before proceeding to
decide
with
the
substantive
issues
involved in the case, first and foremost,
shall
decide
who
is
the
legal
representative of the deceased. It is also
well settled that when a party dies at the
stage of second appeal and there are rival
contenders claiming to be the legal
representatives of the deceased, as in the
present case, there is a burden cast upon
the Court to first decide as to who is the
legal representative of the deceased.
Without doing so, the Court cannot
proceed with the disposal of the case on
hand. At the same time, the Court cannot
make all the contenders as parties. The
aspect of deciding legal representative
cannot also be postponed with a view to
decide the same at the time of final
disposal of the appeal on merits. It is
significant that the statute has clearly
mandated that if the question of deciding
the legal representative of a legatee arises
before an appellate Court, it may direct
the subordinate Court to make enquiries
by leading evidence if any through the
process of trial and record its finding as to
who is the legal representative. After
considering the finding recorded by the
trial Court, the appellate Court can decide
and
bring
on
record
the
legal
representative of the deceased.

11. It is indisputable that the
procedural laws are meant to advance
justice. A procedure contemplated under
the code which is mandatory in nature
shall not be skipped or ignored by the
Courts. Whereas, in the instant case, the
High Court's approach has diluted the
purport of Order 22 Rule 5 of the CPC
and is contrary to the law laid down by
this Court in Jaladi Suguna (supra). Such
an approach of the High Court cannot be
sustained."

15. This question had also fallen for
consideration of their Lordships of the
Supreme
Court
in
Karedla
Parthasaradhi
vs.
Gangula
Ramanamma (D) and others, (2014) 15
SCC 789, where it has been held, directly
relating to the issue under consideration
here, as under:

"25. The question as to whether
a
particular
person
is
a
legal
representative of a deceased plaintiff or
defendant is required to be decided by the
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
court as per procedure prescribed in Order
22 Rule 5 CPC which reads 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."

31. Now in such situation
arising in a case, we have two options.
First, to remand the case to the High
Court which in turn will remand the case
to the trial court to decide the application
filed by K. Sanjiva Rao under Order 22
Rule 4 as provided in proviso to Order 22
Rule 5 CPC and depending upon the
inquiry report, will decide the appeal and
second, this Court should retain the
session of this appeal to itself and remand
the case to the trial court as provided
under Order 41 Rule 25 read with Order
22 Rule 5 proviso for holding an inquiry
and on receipt of the finding, finally
decide the appeal in the light of finding so
recorded by the trial court.

32. Having given our anxious
consideration to this question, we are of
the considered view that second course
suggested above seems to be more
appropriate. It is for the reason that firstly,
retaining the session of the appeal and
inviting findings from the trial court
would save time, avoid incurring cost and
curtail stages of litigation and secondly,
the litigation which is pending since 1985
would come to an end early and lastly by
taking such recourse, no prejudice of any
nature would cause to any parties because
so far as other issues on merits are
concerned, we have already decided and
lastly, the expression "appellate court"
occurring in Order 41 Rule 25 read with
Order 22 Rule 5 proviso would not only
include the first appellate court, but also
include the second appellate court and this
Court, once this Court has granted leave
to file appeal to the appellant. In such
event, this Court being the last appellate
court, can always exercise the powers
available under Order 41 Rule 25 read
with Order 22 Rule 5 proviso CPC and
especially when the High Court as the
first appellate court failed to exercise such
powers for proper determination of rights
of the parties."

16. The issue has also been considered
by this Court in Narbdeshwar and others vs.
Ram Naresh Chaudhari, 2019 (143) RD
440, where principles with regard to a claim to
substitution, particularly based on a will and
the obligation to decide it under Order XXII
Rule 5 CPC, has been laid down. It is held in
Narbdeshwar and others (supra) as follows:

"22. 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 representative(s) 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
1 All. Munni Lal And Others Vs. Board of Revenue and Others
1067
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.

(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
representative(s) 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."

17. In the present case what emerges
from the facts is that the two substitution
applications
of
two
sets
of
legal
representatives, each claiming in them the
right to represent the estate of the
deceased defendant, Raja Ram in the
pending appeal before the Board was in
question. One of them was a grandson,
claiming
through
a
pre-deceased
daughter,
who
propounded
a
will,
whereas the other set of claim was from
the daughters of deceased defendant, Raja
Ram, who claimed on the basis of
intestacy. The Board of Revenue by a
casual order and without the least
consideration
or
adherence
to
the
provisions of Order XXII Rule 5 CPC,
proceeded
to
allow
both
sets
of
applications, and substituted both sets of
legal representatives without deciding the
question at all as to who was entitled to
represent the estate of the deceased
defendant, Raja Ram in the pending
second appeal, and to be substituted in his
place, in accordance with law.

18. In the circumstances, the proviso
to Rule 5 of Order XXII, would require
the matter to be remitted to the Trial
Court for undertaking an inquiry limited
to the purpose of deciding the pending
applications for substitution as to who
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
was entitled to represent the estate of the
deceased, and be substituted in place of
the deceased defendant, Raja Ram in the
pending second appeal. That of course
would be done by the Trial Court by
taking necessary evidence to judge the
parties' rival claims, with a finding
returned to the Board. But all this has not
been done, and by an order surreptitiously
made the substitution applications filed by
both sets of persons claiming to be legal
representatives of the deceased defendant,
Raja Ram have been allowed. This course
of action is patently illegal and the
impugned order passed by the Board of
Revenue cannot, therefore, be sustained.

19. The writ petition succeeds and is
allowed.
The
impugned
order
dated
14.12.1993 passed by the Board of Revenue,
U.P.
at
Allahabad
in
Second
Appeal
no.44/1976-77, Ramkesh vs. Raja Ram and
others, relating to District Mirzapur (now
Sonebhadra) is hereby quashed. The Board
of Revenue is directed to remit the matter to
the Trial Court as regards the entitlement to
represent
the
estate
of
the
deceased
defendant, Raja Ram in the pending appeal
before it, with a direction that after taking
such evidence as may be required, findings
with reasons be returned to the Board. This
exercise, the Board shall ensure, is completed
within a period of three months from the date
this order is produced before the Board. The
Board, after taking into consideration the
findings returned by the Trial Court under the
proviso to Order XXII Rule 5 CPC, shall pass
appropriate orders on the applications for
substitutions made on behalf of the two sets
of applicants before it, and thereafter
proceed with the appeal, hearing the
party brought on record in place of
deceased defendant, Raja Ram. Costs
easy.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - B No. 34173 of 1997

Smt. Amarwati ...Petitioner
Versus
D.D.C. Bulandshahr And Others
 ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri Dushyant Singh, Sri
Rajesh Kumar Sharma, Sri Ram Kishor
Pandey, Sri S.K. Singh, Sri M.C. Singh.

Counsel for the Respondents:
C.S.C., Sri Ayub Khan, Sri H.N. Sharma,
Sri Jai Singh Chandel, Sri Mahesh Chand,
Sri Pankaj Mishra, Sri R.K. Rai, Sri Rahul
Sahai, Sri Rajesh Kumar.

A. U.P. Consolidation of Holdings
Act- Section 9A (2) - Objection filed-
claiming succession on the basis of
the last will and testament - validity
of the will challenged on the ground
of inequitable distribution and also
that the will is not free from all
doubts-Section
68
of
Indian
Evidence Act-Section 63 of Indian
Succession Act (para 15). Doctrine of
approbation
and
re-approbation.
(Para 16)

B. Code of Civil Procedure, 1908-
Order XLI Rule 31-the judgment
pronounced would not be vitiated for
the mere formality of non-framing of
an issue. (Paras 17 & 18)

C. Power of DDC to examine any
finding, whether of fact or law,
recorded
by
any
subordinate
authority, and also includes the