D. K. Seth, J.
1. The order dated 3rd July, 1999 passed by the learned District Judge, Gorakhpur passed in Misc. Appeal No. 6 of 1999 reversing the order dated 21st December, 1998 passed by the learned Civil Judge. Junior Division in Original Suit No. 314 of 1981 has since been challenged in the writ petition under Article 227 of the Constitution of India.
2. Mr. S. S. Tripathi, learned counsel for the petitioner contends that the suit was brought by one Smt. Brij Raji. On the death of Brij Raji, her daughter Smt. Shanti Devi was substituted as heir within the meaning of Section 171 of the U. P. Zamindari Abolition & Land Reforms Act, 1950. Thereafter, the said Shanti Devi died. The husband had filed an application for substitution. The learned trial court dismissed the said application on the ground that the husband was not her heir in view of Section 172 of the said Act, In support of the claim, the husband produced a registered Will executed by Smt. Brij Raji. Mr. Tripathi contended that there was no whisper about the Will when Smt. Shanti Devi was substituted on the death of Brij Raji. The Will has been brought subsequently by the husband, therefore, there is every likelihood of the Will being suspicious and ingenulne, therefore, the right claimed by the husband under Section 174 of the Act cannot be allowed to be a ground for substitution of the husband in the proceedings. Therefore, the learned trial court had rightly rejected the application by an order dated 21st December. 1998. The revisional court however, had overlooked the proposition of Section 172 of the said Act. It had committed an illegality and irregularity in exercise of its Jurisdiction in overlooking the said provision and relied upon Section 174 of the said Act. Therefore, the order dated 3rd July, 1999 is liable to be set aside.
3. I have heard Shri S. S. Tripathi, learned counsel for the petitioner at length.
4. Section 171 of the Act prescribes an order of succession different from the order of succession under the natural law by which a bhumidhar or assami is governed. Admittedly, in the present case the plaintiff Smt. Brij Raji was a Hindu governed by Hindu Succession Act. By reason thereof, had succession been open, in that event, the husband of Smt. Shanti Devi could have staked his claim to be substituted. But by reason of Sections 171 and 172 of the U. P. Z.A. and L.R. Act he could not stake his claim to be substituted in the proceeding. However, he can come in by reason of Section 174 of the U. P. Z.A. and L.R. Act, provided he claims that Shanti Devi succeeded not by intestate succession but by testamentary succession, viz., through a Will or under Section 172 (2) (a) (ii) or Section 172 (4) of the said Act. By reason of Section 174, if Smt. Shanti Devi had claimed right on the basis of Will, in that event, the husband of Smt. Shanti Devi could claim his stake as provided in the said Act.
5. In the present case, the Will has been relied upon. The said Will is alleged to be a registered one. It was so found by the revisional court.
6. Mr. Tripathi raises a question that while allowing substitution, the Court is bound to look into the right of the parties seeking to be substituted and decide the issue on the basis of interpretation of Sections 171, 172 and 174 having regard to the existence of the Will. According to him, the alleged Will had to be overlooked since Smt. Shanti Devi was not substituted on the strength of the Will and the Will was not disclosed earlier. Since Smt. Shanti Devi was substituted under Section 171 of the Act, therefore, now it is not open to her husband to claim succession under Section 174 by reason of the Will allegedly executed by Smt. Brij Raji in favour of Smt. Shanti Devi which was not pleaded by her.'
7. The question in fact is a question, which is related to the merit of the case. While dealing with substitution application it is not necessary to deal with the merit of the case. It is only to be seen whether person staking his right can be substituted or not. In order to decide the question, intricate question of taw and the decision as to the validity of the Will is not necessary to be gone into. In the present case, the owner of the land was Smt. Brij Raji. Section 171 apparently has no manner of application in the succession in respect of the property left by a woman. It is not pleaded that the substitution opened through Smt. Brij Raji after the U. P. Z. A. and L. R. Act had come into force. If the succeslson of Brij Raji is open under Section 172 (2) (a) (ii) or under Section 174, in that event, if there is no Will, still then the husband could have staked his claim since Section 171 had no manner of application, as discussed hereafter.
8. Section 171 deals with succession to a male whereas Section 172 deals with succession to a woman. Sub-section (1) of Section 172 deals with succession to a woman who inherits the property after the date of vesting as (a) widow of male lineal descendant, mother or father's mother (b) daughter, son's daughter, sister, half sister by same-father. Sub-section (2) (a) deals with succession to a woman who inherited the property before vesting as in clause fa) or (b) of sub-section (1) either (i) a life estate or (ii) absolutely under any personal law. If such inheritance is covered under subsection (2) (a) (ii) then future succession to the estate will be governed under Section 174. Otherwise it Will be governed under Section 171. But sub-section (1) will not be attracted if the succession to the woman is opened under Section 174.
9. Succession under Section 174 opens after the date of vesting to a woman, other than those mentioned in Section 171 or 172. If a woman succeeds to a woman under Section 174, such woman successor then comes under Section 172 (1) when succession will open after her.
10. It is not known, nor there is anything on record nor as to whether Smt. Brij Raji had inherited under Section 172 (1) or under Section 172 (a) (i) or (ii). If it was under Section 172 (2) (a) (ii), then Section 174 would have been attracted. Otherwise, Section 171 would have been attracted. In none of the cases except under Section 172 (2) (a) (ii) the daughter Smt. Shanti Devi could inherit. Inasmuch as in such case, the property would go to lineal descendant of the last male Bhumidhar. If there were no male lineal descendant of the last male Bhumidhar referred to in Section 171 then the succession would open under Section
11. General Order of succession is always sub-servient to succession inter vivos. If it is by testamentary or non-testamentary, the same will override the general order of succession. It is not contended that the Bhumidhari right invoked in this case is non-transferable. It is not contended that Smt. Brij Raji had no power to bequest. Section 169 permits bequest by a Bhumidhar with transferable right. Whereas Section 170 prohibits bequest by Will a non-transferable Bhumidhari right.
12. In this case, a photocopy of the Will executed by Smt. Brij Raji on 23rd November, 1984 is on record. Smt. Shanti Devi could not have succeeded unless it was under Section 172 (2) (a) (ii) or under a Will. Thus apparently it presupposes that Smt. Shanti Devi succeeded under Section 174. But then these are questions on the merit of the case, which can be decided only on the basis of the materials that might be brought on record by the parties in the form of evidence. It is always open to decision at the hearing. While deciding the question under Order XXII of the Code of Civil Procedure, it is tentative for the purpose of the proceeding thereunder. It cannot operate as res Judicata at the subsequent stage despite Rule 5. Order XXII of the Code.
13. Then again Order XXII of the Code requires substitution of the legal representative. Legal representative as defined in Section 2 sub-section (ii) of the Code--"includes any person who intermeddles with the estate of the deceased." That apart, from the legal heirs or a person representing in law the deceased, a person Intermeddling with the estate of the deceased, even representing the estate without law, is also a legal representative for the purpose of Order XXII of the Code. Section 4, sub-section (24A) of the U. P. General Clauses Act, 1897 has adopted the definition of representative as that of Section 2(ii) of the Code.'
14. In the present case, the petitioner has made out a case that as husband of Smt. Shanti Devi, he was looking after the property and that he is continuing to do so after her death. Thus, even if it is presumed that he is not the legal heir or not representing in-law the estate, he is definitely intermeddling with the estate. As such intermeddler, he is still a legal representative in view of the definition in Section 2(ii) of the Code and Section 4 (24A) of the U. P. General Clauses Act, 1897.
15. Thus the petitioner appears to be a person eligible for substitution under Order XXII of the Code in the present case as is apparent on the materials disclosed.
16. Now it is time to consider the impact of Order XXII, Rule 5 of the Code. Order XXII. Rule 5 of the Code requires the Court to decide the question who is or are the legal representatives of the deceased. But the said determination does not require elaborate enquiry. Such a view was taken by the Madras High Court in the case of Krishna Kumar v. N. G. Naidu, AIR 1975 Mad 174. An adjudication in the course of proceeding to substitute legal representatives does not make the legal representative heirs as such. The finding should be construed to have given only for the prosecution of the proceeding. It is not a decision on merits. It cannot operate as res Judicata. It was so held in the case of Sakhtivel v. H. S. Govindan. (1988) 2 Ren CJ 647 by the Madras High Court. Similar view was taken by the Madras High Court in the case of Muniappa Nadar v. K. V. Doraipandi, AIR 1988 Mad 117.
17. The Rajasthan High Court had also taken the same view as that of Madras High Court in the case of Kalu Ram v. Charan Singh, AIR 1994 Raj 31 that the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not legal representative for the purpose of proceeding before the Court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on litigation and is not an imposter. In case of rival claimants, it may also be necessary to decide that out of the rival claimants, who really is the person entitled to represent the estate for the purpose of a particular proceeding. Even that determination does not result in determination of inter se right to succeed to the property of the deceased and that right has to be established in independent proceedings in accordance with law. In the said case, in a suit for specific performance of contract of sale the transferor died leaving his widow who too died during the proceeding. One stranger on the strength of an unprobated Will sought to be impleaded in the suit. He was allowed to be substituted in place of the widow.
18. Punjab High Court had also taken the same view that the decision in a proceeding under Order XXII, Rule 5 of the Code does not operate as res Judicata. It was so held by the Full Bench of the Punjab High Court in the case of Mohinder Kaur v. Piara Singh, AIR 1981 Punj 130. Following the said decision the Punjab High Court in the case of S. Charanjtt Singh v. Bhatinder Singh. AIR 1988 Punj 123 had held that when two categories of legal representatives one set claiming under a Will and another as natural and non-testamentary successors claim to be impleaded, the proper course is to implead both.
19. The Himachal Pradesh High Court had also taken the same view in the case of Nisapati v. Gayatri, AIR 1982 HP 8 holding inter-alia, that in such an enquiry the question that a petitioner is an exclusive heir may be left open. Enough if he is found to be representing the estate of the deceased to the extent of a fractional share.
20. Whereas the Apex Court in the decision in the case of Annupama Pruthi v., Rajen Bal, AIR 1988 SC 2041 did not deviate and did not take a contrary view than those cited above. Though it had held that once an order of substitution was made at the instance of A substituting A. B. C as legal representatives, then A cannot be permitted to say that only. A and M are to be substituted and not B and C on the strength of a Will found.
21. But then the question to be decided under Order XXII is confined to the scope and ambit of Order XXII. The scope and ambit of Order XXII is related to the carriage of the proceedings to the extent who is to carry on the proceedings. It does not determine the rights of the parties or even persons claiming as legal representatives. The definition of legal representative as defined in Section 2(ii) of the Code of Civil Procedure includes a person who intermeddles with the estate of the deceased. Thus, it is only a proceeding for ascertaining as to who is the legal representative eligible to continue the lis. The scope of enquiry under Order XXII cannot surpass the purpose and object for which Order XXII is prescribed. It cannot be stretched to the extent of determining the lis between the parties on merits by deciding title. Thus the provision of Rule 5 of Order XXII relating to determination of the question as to legal representative is confined only to the extent of determining the legal representative for the purpose of carriage of the proceeding and representing the its or the estate even though he may be a intermeddler. It does not determine the rights of the parties. Even if it is so determined, the same would be wholly outside the scope of final determination in the suit where the question is involved. The question remains open to be decided in appropriate proceeding either in the suit itself or in a separate suit or proceeding as the case may be,. The substitution does not preclude the parties to establish their respective right during the course of hearing of the suit where it could be so permitted within the scope and ambit on materials to be produced by adducing evidence oral or documentary. Even if a legal representative is excluded still then he has a right to apply for being added as a party to a proceeding if he is so advised depending on the facts and circumstances of the case.
22. However, the Calcutta High Court in the case of Rabindra Nath Das v. Santosh Kumar, AIR 1975 Cal. 381 had taken the view that an order under Order XXII is not in the nature of interlocutory order and is conclusive and binding. With great respect and humility, I am unable to agree with the reasoning of the said decisions in view of the discussion made above particularly in view of my agreement with the decision of the High Courts of Madras. Punjab, Rajasthan. Himachal Pradesh as cited above.
23. Thus it appears that the revisional court had correctly appreciated the law. Non-reference to Sections 171 and 172 which is absolutely not applicable in the present case, cannot be said to have vitiated the decision.
24. Be that as it may, for the purpose, of deciding the question of substitution, the Court is not required to enter into the intricate question of law or validity of the Will on the strength of which substitution is claimed. The validity of the Will involves intricate question of law relating to succession or inheritance which are subject matter to be gone in the trial on the basis of the material produced before it by the parties. Therefore, at this stage the contention as raised by Mr. Tripathi cannot be gone into. All the questions are kept open to be agitated and decided in the suit or otherwise. The observation made by the revisional court or by this Court are ail tentative for the purpose of deciding the question of substitution and shall not have any impact on the decision on merit--either on law or on fact.
25. For all these reasons, the petition under Article 227 of the Constitution of India fails and is , accordingly dismissed. However, there will be no order as to cost.