JUDGMENT

Abdul Hadi, J.

1. These two appeals are by the same appellants, A.S. No. 674 of 1985 arises out of the judgment and decree in O.S. No. 90 of 1981 and the 1st appellant is the 1st defendant therein. In the said suit, the plaintiff Jayaraman, who is the 1st respondent in both the appeals herein claimed 1/4th share in the suit properties described in plaint schedules B, C, D & E on the ground that the said properties are joint family properties of the family of the 1st appellant and the said Jayaraman and two other sons Parvatha Udayar and Margasahayam, who are defendants 2 and 3 in the said suit.

2. A.S. No. 1084 of 1987 arises out of O.S. No. 23 of 1982 filed by the 1st appellant against his abovesaid three sons. In the said suit, the 1st appellant claimed that the abovesaid properties belonged to him exclusively and on that footing he prayed for the relief of declaration and injunction with reference to those properties.

3. According to the 1st appellant, the said properties are his own separate properties, excepting items 5,6 and 7 of B Schedule properties which he admitted as joint family properties.

4. Since common issues were involved, both the suits were tried together and the trial court came to the following conclusions; (1) Items 4,9,14 and 16 of B Schedule do not belong to the said family at all (2) The case of 1st appellant regarding items 8,10,13 and 15 of B Schedule has not been proved and those items are the properties of the family (3). The further case of the 1st appellant that items 1 and 2 of B Schedule and items 18 and 19 of D schedule are not joint family properties was not accepted.

5. Therefore, a preliminary decree was passed by the trial Court in O.S.No.90 of 1981 with reference to (1) all the properties in B Schedule excepting the abovesaid items 4, 9, 14 and 16 therein (2) C schedule properties (3) D schedule properties and (4) items 1 to 3 in E schedule properties. Consequently O.S.No. 23 of 1982 was dismissed. Hence the abovesaid two appeals by the 1st appellant.

6. While these appeals were pending, on 12.9.1988 the 1st appellant died. But, the abovesaid Parvatha Udayar filed C.M.P.Nos.5589 and 5590 of 1989 for transposing him as the 2nd appellant in the two appeals on the ground that his father has executed a registered will Ex.B-39, dated 25.6.1985, bequeathing all his interest in the abovesaid properties to him alone. Since the truth and validity of the said will was opposed by Jayaraman, this Court passed an order dated 18.8.1989, calling for a finding from the trial court with regard to the truth and validity of the said will. Accordingly, the trial court went into the question, and after recording the evidence of both the parties on the truth and validity of the abovesaid will, has submitted its finding. As per the said finding, the abovesaid will is held to be true and valid. No doubt. Jayaraman has filed objection to the said finding. However, by order dated 20.2.1990, this Court allowed the said C.M.Ps. with the following observations:

In view of the prima facie finding given by the trial court, these petitions are to be allowed on the basis of the registered will. It is open to the parties to agitate with regard to the genuineness of the will at the time of final hearing of the appeal. The petitions are allowed with the above observation.

7. Now before me, though the learned Counsel appearing for Jayaraman contends that the said finding was erroneous, he submits that he has no objection that if the said Parvatha Udayar is only allowed to represent the deceased 1st appellant in these two appeals for the only purpose of prosecuting these appeals. But the learned Counsel for the 2nd appellant Parvatha Udayar however contends that this Court, in the light of the abovesaid finding should go into the question of genuineness and validity of the said will conclusively in this proceeding itself and give a decision accordingly. But, the learned Counsel for Jayaraman contends that the said course suggested by the learned Counsel for the 2nd appellant will not be a proper course in view of the scope of an enquiry under Order 22, Rule 5, C.P.C. under which alone the present enquiry in which the finding has been given would come, since only on the death of the original appellant, the said Parvatha Udayar, one of the respondents in both the appeals, sought to transpose himself as the 2nd appellant on the ground that he is the sole legatee under the abovesaid will executed by the original appellant and that consequently he is his legal representative. Both the counsel agree that the abovesaid finding has been given pursuant to Order 22, Rule 5, C.P.C.

8. Order 22, Rule 5, C.P.C. says that where a question arises before an appellate court as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, that court may, before determining the question direct any subordinate court to try the question and to return the record 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. The learned Counsel for Jayaraman contends that the finding given in the enquiry under Ordre 22, Rule 5, C.P.C. could be only for prosecuting the appeals. On the other hand, the learned Counsel for the 2nd appellant contends that this Court should go into the correctness of the said finding given by the court below and conclusively determine the truth and validity of the Will. In this connection he drew my attention to the recent decision in Sivagurunathan v. Balasubramanian (1988)1 L.W. 277. In the said decision, in a similar situation, it was observed as follows:

It is not possible to keep alive and relegate the controversy to a later stage or to an independent proceeding. The controversy has got to be solved in the present application only and that has got to be done conclusively and finally and not collaterally and incidentally.

The said decision also arose in a suit for partition where a preliminary decree for partition had been made and the suit was at the stage of passing of a final decree. One Swaminatha Pillai who continued the said suit and whose share was countenanced as 2/5th of the estate, died after the preliminary decree. The trial court, dealing with the question as to who was his legal representative, based on the rival contentions of the parties, before it on the basis of two alleged wills said to have been executed by the said Swaminatha Pillai, passed an order in favour of one of the claimants and against the said order, the aggrieved party came on revision to this Court and this Court in the said decision observed as follows:

However, Mr. B. Kumar, learned Counsel for the respondent would submit that an enquiry into the question as to who should be brought on record as the legal representative of a deceased party to the litigation is of a summary nature and and order thereon decides only a matter which is collateral an incidental to the decision of the suit and such a decision would not operate as res judicata as between the parties and the aggrieved party can seek independent proceedings to establish his rights. I am unable to accept this line of thinking by the learned Counsel for the respondent on the facts of this case for the simple reason, here the claimants are sharers to the estate and the suit is one for partition and the question as to who is entitled to what share must be decided giving a quietus to the controversy in this suit itself and it is not possible to relegate the controversy for a full-fledged decision to some other proceeding as the learned Counsel for the respondent would suggest. It is true that the mere admission of person as a legal representative of a deceased party for the purposes of further prosecution of the suit will not conclusively establish his right as such if that legal and factual question is one of the main or vital issues in the suit itself and the decision in the application to bring on record the legal representatives is only collateral to the decision in the suit. In such a case, the controversy has got to be left open for a decision in the suit itself. The court itself can make it clear that there is no conclusiveness about the order bringing on record the legal representative and relegating the controversy for a decision in the main suit itself. Here, as stated above, the suit is one for partition. The question as to who should be the legal representative of a sharer and what share the parties would be entitled to are all main and vital issues in the suit itself. The preliminary decree has been passed. The stage for passing the final decree has come. It is not possible to keep alive and relegate the controversy to a later stage or to an independent proceeding. The controversy has got to be solved in the present application only and that has got to be done conclusively and finally and not collaterally and incidentally.

9. But, I find a Division Bench of this Court has held in Pakkran v. Pathumma 25 M.L.J. 279, as follows:

The question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be regarded as one of the questions arising for decision in the suit itself. It is really a matter collateral to the suit and one that has to be decided before the suit itself is proceeded with. The Civil Procedure Code does not provide for an appeal against an order deciding the question though the repealed C.P.C. did. The view is in accordance with the opinion of the Bombay and Allahabad High Courts. See Balabai v. Ganesh (1902) I.L.R. 27 Bom. 162 and Purushotam Rao v. Janki (1905) I.L.R. 28 Bom. 109.

[Emphasis supplied]

Further, a Full Bench of this Court has also held in Venkatakrishna Reddi v. Krishna Reddi A.I.R 1926 Mad. 586 (KB.), that no appeal lies against the order passed under Order 22, Rule 5, C.P.C. In view of these two decisions, one by a Division Bench and another by a Full Bench, I am unable to share the view of the learned Judge, who decided the case in the above referred to Sivagurunathan v. Balas-ubramaniam, (1988)1 L.W. 277. Further, in Koneridoss v. N.Subbiah Naidu , also, a learned single Judge of this Court has held as follows distinguishing an earlier Division Bench judgment of this Court in Appavoo Pillai v. Vijayambal . "The enquiry made under Order 22, Rule 5, C.P.C. is only summary in character. Even though witnesses might be examined in support of the contention of either party to that proceeding, still the proceeding is only summary in character. Then, dealing with the above said Appavoo Pillai v. Vijayambal , the learned Judge who decided the above said Koneridoss v. N. Subbiah Naidu , observes as

follows:

In the above decision, the Division Bench has observed that the decision of the court regarding who among the rival claimants is the legal representative would operate as constructive res judicata in a subsequent suit. But that is a case where the dispute as to who is the legal representative of a deceased person arose in execution proceeding. Therefore the decision of the court regarding who among the rival claimants was the legal representative become an appealable order by virtue of Section 47, C.P.C. It should be noted that under Section 47(3) where a question arises as to whether any person is or is not a representative of the party such question shall for the purpose of that section be determined by the court. Therefore if an executing court decides as to who among the rival claimants is the legal representative of a party, that decision is appealable. In Rangaswami Naicker v. Rangammal ,

Venkataraman, J. has also taken the same view. Even though the Division Bench which decided Appavoo Pillai v. Vijayambal , had not stated so. I am clearly of the view that because the order regarding legal representative in that case was appealable, the Division Bench has held that under such circumstances it would operate as res judicata in a subsequent suit. If such a view is not taken of the above decision of the Division Bench it would be going counter to the decision of this Court in, Pakkran v. Pathumma 25 M.L.J. 279, already referred to which is also a decision by a Division Bench. When there is a Bench decision directly on the point, a subsequent Bench, unless it is a larger Bench cannot possibly take a different view.

In this way, the said Appavoo Pillai v. Vijayambal , has been distinguished in Koneridoss v. N.Subbiah Naidu . I also think that the learned Judge is right in so distinguishing Appavoo Pillaiv. Vijayambal . No doubt, the position of Section 47, C.P.C. is little different now after the amendment of C.P.C. in 1976. Any order passed under Section 47, C.P.C. was formerly a decree within the meaning of Section 2(2) C.P.C. and hence an appeal itself would lie against the decree. But, now after the 1976 amendment, it is not a decree, and is appealable only if it falls under Section l04(1), C.P.C. Otherwise only a revision would lie. However, on that ground alone an order under Order 22, Rule 5, C.P.C. cannot be equated with an Order under Section 47(3), C.P.C. At the time when fruit of any decree has to be given to the decree-holder, it has necessarily to be conclusively determined whether any party claiming to be the representative of the decree-holder is entitled to claim the fruit of the decree. Therefore the determination under Section 47(3), C.P.C. is a conclusive one and cannot be called a summary determination as it is the case in enquiry under Order 22, Rule 5, C.P.C. Further, it must also be noted the term used in Section 47(3), C.P.C is 'representative' of a party while the term used in Order 22, Rule 5, C.P.C is 'legal representative' of a deceased plaintiff or a deceased defendant. This latter term 'legal representative' has been given a specific definition in the C.P.C, while it is not so in the case of the term 'representative'. The term 'legal representative' is defined under Section 2(11), C.P.C. According to the said definition, the said term means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Thus, even a person who intermeddles with the estate of the deceased comes under the definition. So, when a party to a proceeding dies, even a person who intermeddles with the estate of the deceased party could be brought on record as legal representative for prosecuting the proceeding further without allowing it to be abated. But this legal position cannot be attributed to the term 'representative' used in Section 47(3), C.P.C, so, on this ground, I distinguish the above referred to Appavoo Pillai v. Vijayambal , from the present case.

10. I may also add that S. Natarajan, J. as he then was, has expressed the same view as that of the view expressed in the above referred to Pakkran v. Pathumma, 25 M.L.J. 279 in Krishnakumar v. N.C. Naidu , thus:

It is needless to say that though a duty is cast by Rule 5 of Order 22 on the court to determine who is the legal representative of a deceased plaintiff or deceased defendant, there need not be a comprehensive and exhaustive enquiry to determine the person who could be properly designated the legal representative of a deceased party in a pending action, for the simple reason that any decision so rendered by a Court in pursuance of an enquiry under Order 22, Rule 5, C.P.C. has its inherent limitations. The recognition of a rival contender as the legal representative of a deceased party in a pending action is only to facilitate the early disposal of the pending action. Any recognition of right given by a court in such a proceeding will not confer rights on the recognised representative in the estate or property of the deceased person, nor will such a finding operate as res judicata in subsequent proceedings. The very fact that no appeal is provided from an order passed under Order 22, Rule 5, C.P.C. will go to show that the order cannot be characterised as one 'finally decided by a Court' as contemplated in Section 11, C.P.C.

Further, a Full Bench of Punjab and Haryana High Court in Mohinder Kaur v. Piara Singh , also has expressed the same view and reiterated that the appointment of a legal representative is only for the purpose of the proceeding in question. In this connection, it has observed thus:

At least one of the reasons that the appointment of a legal representative is only for the purposes of that suit alone noted by us above, has met the approval of the Supreme Court in Daya Ram v. Shyam Sundari .

So, the Supreme Court also has approved this position. In feet, in the said Supreme Court decision, viz., the above referred to Daya Ram v. Shyam Sundari , the Supreme Court approved this

Court's decision reported in Kair Mohideen v. Muthu Krishna Ayyar (1903) I.L.R. 26 Mad. 230, particularly the following passage in the above referred to Kair Mohideen v. Muthu Krishna Ayyar (1903) I.L.R. 26 Mad. 230:

...there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party....

(emphasis supplied)

11. Further, even though in the present case, even though enquiry was held by the trial court on the truth and validity of the abovesaid will in an elaborate manner, examining several witnesses, and a finding has been given after analysing the legal position also, it must be noted that there are admittedly other heirs to the deceased who is said to have executed the will, viz., his five daughters, who were not given an opportunity to participate in the said enquiry. So, for this reason also, it cannot be said that the finding arrived at therein is conclusive.

12. In the light of the above discussion I feel that I am bound to follow the view expressed in the Division Bench of this Court in the above referred to Pakkran v. Pathumma, 25M.L.J. 279 and in the Supreme Court in the abovesaid Daya Ram v. Shyam Sundari , approving the abovesaid Daya Ram v. Shyam Sundari , above referred passage in Kair Mohideen v. Muthu Krishna Ayyar (1903) I.L.R. 26 Mad. 230, rather than the view expressed by Nainar Sundaram, J., in the above referred to Sivagu-runathan v. Balasubramaniam (1988)1 L.W.277.

13. Anyway, in view of the above referred to order dated 20.2.1990 in the abovesaid C.M.P.No.5589 and 5590 of 1989 that it is open to the parties to agitate, with regard to the genuineness of the will, at the time of final hearing of the appeal, and since both the parties also have advanced their rival arguments before me on the abovesaid finding. I may also go into the said question even for coming to a prima facie conclusion thereto, only to find out whether the said Parvatha Udayar can represent the deceased appellant in this appeal as his legal representative. In this regard, the learned Counsel for Parvatha Udayar initially drew my attention, to Jayaraman's own evidence as P.W.I before the trial court in its enquiry regarding the execution of the Will and also Exs.B-40 and B-41 marked in the said enquiry. Ex.B-41, dated 29.9.1987 is the notice given by the deceased 1st appellant Nallathambi Udayar to the said Jayaraman and the other son Margasahayam. In Ex.B-41, it is specifically stated as follows:

(Editor: The text of the vernacular matter has not been reproduced.

required.)

The trial Judge also points out that to Ex.B-41, notice, Jayaraman and the 3rd defendant did not send any reply. Further the learned Judge points out that at the time when Ex.B-41 was marked, there was no objection from Jayaraman and that there was no cross-examination also by Jayaraman regarding Ex.B~41. All these apart, I also find that Jayaraman as P.W.I in the enquiry regarding the will, admitted that the signature found in Ex.B-40 the postal acknowledgment for having received Ex.B-41 notice is his further, the said P.W.I has admitted that Nallathambi Udayar himself conducted the case without anybody's aid. Further, he also deposed that in the Court he gave evidence with clarity and that he also came to High Court climbing the staircase therein himself, Further, the attestor to the abovesaid Ex. A-39 will as D.W.3 has also given evidence regarding the execution of the Will. Likewise, D.W.2, the scribe also has given evidence.

14. No doubt, the learned Counsel for Jayaraman contends that the will is unnatural, since it disinherits all the other children of Nallathambi Udayar, excepting the legatee. But, on that ground alone, the will cannot be held to be not true and valid, particularly in the light of the abovesaid Ex.B-41 and the evidence given by P.W.I (Jayaraman) himself. In the circumstances, I hold that for the purpose of prosecuting these appeals alone, the abovesaid Parvatha Udayar is taken as the legal representative of the deceased appellant.

15. Then, the only question to be decided further in these two appeals, is, whether the decision of the Court below that the abovesaid properties are joint family properties, is correct or not. So far as items 5,6 and 7 of B Schedule, Nallathambi Udayar himself has admitted that they are joint family properties. Then, with reference to items 8,10 to 13 and 15, the trial Court has held that there is no evidence to establish that the said items originally belonged to Nallathambi Udayar's mother. So, the Court below held that these items are also joint family properties. The learned Counsel for the 2nd appellant Parvatha Udayar also fairly represents that since no evidence was produced regarding the above aspect by Nallathambi Udayar, the said finding regarding the abovesaid items, does not call for any interference by this Court. Accordingly, they are also held to be joint family properties.

16. However, the learned Counsel for the 2nd respondent contends that the trial Judge committed a mistake in simply accepting the evidence of P.W.I and holding that items 1 and 2 and B Schedule belongs to the family. Further, according to him, the trial Court also committed an error in holding in paragraph 41 of its judgment that items 18 and 19 of D schedule properties are ancestral properties. He points out that as per the plea in the plaint it is only 4.28 acres of dry land and 0.98 acres of wet land in B schedule are the ancestral properties and that C and D schedule properties were purchased from the nucleus from B schedule properties. Further, according to him, against the said plea and against the sale deed under which the said items 18 and 19 were purchased, viz., Ex.B-8, dated 27.6.1922, the court below decided the said question erroneously, when there is no oral evidence on the side of the plaintiff that the said items are the ancestral properties.

17. But, the learned Counsel for Jayaraman drew my attention to paragraphs 47 and 42 of the judgment of the trial court. There, the learned Judge observes that the family admittedly was an agriculturist family, that Nallathambi Udayar did not plead that he purchased the properties from out of the income from any other business or avocation, that no evidence has been let in that the said Nallathambi Udayar had any other income of his own and that since Nallathambi Udayar got more than 5 acres from his ancestors, it could not be accepted that he worked as a cooly and purchased the properties.

18. The learned Counsel for Jayaraman also drew my attention to the decisions in M. Girimallappa v. R. Yellappagouda A.I.R. 1959 S.C. 906 and Krishnan v. Ramaswami (1984)2 M.L.J. 133, relied on by the court below. In the above referred to Krishnan v. Ramaswami (1984)2 M.L.J. 133, it was observed as follows:

Though Mari Mudaliar had purchased the property in his individual name, the fact remains that he was the manager of a joint family at the time of the purchase. Therefore, this is not a case where the property has been purchased by a junior member of a Hindu joint family in his name or by a female member of a joint family in her names. That is an important fact which has to be taken note of. Two things emerge from the evidence, namely, that Mari Mudaliar was the head of the family and second, the family was possessed of certain items of properties, obviously, those properties must have been yielding income as otherwise, it would not have been possible for Mari Mudaliar to maintain a family consisting of seven or eight members. Therefore, even though the respondents have not proved what was the income derived from the joint family property and what amount would have remained as surplus after the expenses of the joint family had been met, there is a high degree of possibility that there must have been some surplus and that the properties must have been yielding adequate income for supporting all the members of the family. In such circumstances, there is certainly scope for inferring that there should have been a certain amount of surplus, and from out of the surplus the suit property might have been purchased.

19. In view of the above features and the decisions cited, I do not think that the finding of the Court below regarding the joint family character of the above referred to properties can be interfered with.

20. In the result, A.S. No. 674 of 1985 is dismissed. Consequently A.S.No.1084 of 1987 is also dismissed. However, in the circumstances of the case, there will be no order as to costs.