JUDGMENT
Nagendra Rai, J.
1. This Civil Revision is directed against the order dated 30.8.2001, passed by the Munsif, Gopalganj, in Title Suit No. 423 of 1996, rejecting the petition filed by the petitioner under Order 1, Rule 10 of the Code of Civil Procedure (for short ‘the Code’) for being added as a party in place of the sole plaintiff-Banarasi Devi, who died on 13.7.2000 and allowing the substitution petition filed by opposite party No. 3 Dhrubdeo Singh (husband of the deceased-plaintiff) and substituting him in her place.
2. The factual matrix for disposal of the present revision application are the the original plaintiff Banarasi Devi filed the suit before the Munsif, Gopalganj, for declaration of title and cancellation of exchange deed dated 3.1.1994 with respect to one and half dhurs of land bearing plot No. 129, Khata No. 2, Mauza Jangaliya in the district of Gopalganj. She died on 13.7.2000. On 11.9.2000, the petitioner filed an application under Order 1, Rule 10 of the Code for being added as a party on the assertion that on 3.6.2000 she had executed a registered Will with regard to the suit land and other properties in his favour. Her husband opposite party No. 3 – Dhrubdeo Singh also filed an application under Order XXII, Rule 3 of the Code for his substitution in her place claiming to be the only surviving heir to represent her estate. Shatrujeet Rai and Shambhu Nath Rai also filed a petition on 10.7.2001 for being added as party to the suit on the assertion that they are the sister’s sons of Banarasi Devi and they are the legal representatives of her and they should be, accordingly, substituted.
3. It is an admitted position that the suit property originally belonged to one Kamala Singh, father of the original plaintiff, who died leaving behind his widow and three daughters, namely, Rajbanshi Devi, Yadubanshi Devi and Banarasi Devi (plaintiff). It is also an admitted position that said Kamala Singh executed a deed of gift on 25.6.1963 gifting two khatas one dhur land, which includes the suit land, in favour of Banarasi Devi.
4. After having considered the matter, the Court below rejected the application of the petitioner as well as that of Shatrujeet Rai and Shambhu Nath Rai and substituted the husband in place of the original plaintiff. It appears that the Court below has rejected the claim of the petitioner on the ground that his claim is based on an un-probated Will and as such the cannot be substituted and the husband being the nearest heir and legal representative in terms of Section 15(i)(a) of the Hindu Succession Act is to be substituted in place of the deceased plaintiff.
5. When there is a dispute as to who is the legal representative amongst several claimants, the matter has to be determined under Order XXII, Rule 5 of the Code, which provides, inter alia, that where the question arises as to whether any person is or is not legal representative of the deceased plaintiff or deceased defendant, such question shall be determined by the Court. Though the Court below has not stated specifically that it has determined the question under the said provision, but, as a matter of fact, the determination has been made under Order XXII, Rule 5 of the Code.
6. It is well-settled that the object of substitution of heir after the death of a party in the suit is only for the purpose of bringing the legal representative for continuing and conducting the legal proceeding. It does not decide inters dispute between the claimant nor does it operate as res judicata in a subsequent dispute between the several claimants.
7. It is an admitted position that the petitioner claimed substitution on the basis of an un probated will. The Court below rejected his claim on the ground that on the basis of the un probated will, the petitioner cannot be substituted. The said view taken by the Court below is contrary to a Division Bench judgment of this Court in the case of Suresh Singh v. Dr. Raja ram Singh reported in 1992 (2) PLJR 129, wherein it has been held that a legatee or executor of an unprobated will can institute a suit or take a defence in a suit, but his claim cannot be established in a Court of law unless and until a probate or letters of administration is granted meaning thereby that neither decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. It has been further held that a legatee or executor of Will can be substituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated will.
8. Thus, the Court below has committed a jurisdictional error in rejecting the claim of the petitioner on the said ground. His substitution will not entitled him to a decree unless he obtained a probate or letters of administration, as the case may.
9. Section 14 of the Hindu Succession Act provides that the property possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner and Section 15 of the said Act contains a provision with regard to the succession in the case of female Hindus. In a case the property was inherited by a female Hindu from her father or mother, the same will evolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the heirs of the husband, but upon the heirs of the father.
10. In this case, the property was not inherited by the original plaintiff from her father or mother, on the other hand, the same was gifted and as such the property will not devolve upon the heirs of her father, but in absence of sons and daughters, it will devolve upon the husband and the Court below rightly held so.
11. Thus, there are two claimants, namely, the husband of the deceased plaintiff (opposite party No. 3) and the petitioner on the basis of a Will, which has till not been probated or letters of administration having been granted. In such a situation, the crucial question for consideration is as to who, out of them, should be substituted as a legal heir and representative of the deceased plaintiff. As stated above, the purpose of substitution’s not to determine the rival claims between the parties, which has to be adjudicated upon in a proper proceeding and its object is only to allow a person to continue the litigation by representing the estate of the deceased. I am of the view that both of them should be substituted in place of the original plaintiff Banarasi Devi to represent her estate so as to continue and conduct the proceeding.
12. In the result, the Civil Revision is allowed and; the petitioner is also directed to be added as an heir and legal representative of the deceased plaintiff Banarasi Devi.