Rakesh Kumar Gupta v. Ravindra Kumar Gupta & Ors.

B.K. Narayana, J.:-

Heard Mr. M. A. Khan, learned Senior Advocate assisted by Mr. Virendra Mishra, learned counsel for the appellant and Mr. Deepak Seth, learned coun­sel appearing on behalf of respondents.

2. The appellant Rakesh Kumar Gupta has preferred the present First Appeal From Or­der against the order dated 22-4-2006 passed by the learned Civil Judge ( Sr. Division), Malihabad, Lucknow rejecting the applica­tion A-37 moved by the appellant in regular suit No. 83/01, Ravindra Kumar Gupta and others v. Malti Gupta and others, under Or­der 22, Rule 10, C.P.C., under Order 1, Rule 10 read with section 151 of the Code of Civil Procedure .

3. The facts relevant for disposal of this appeal are that the respondents No. 1 to 4 filed regular suit No. 83/01 against the respondent Nos. 5 and 6 and late Smt. Malti Gupta for a decree of permanent injunction and declara­tion alleging that the plot No. K-473 situate at Ashiyana Kanpur Road, Lucknow ( here­inafter referred to as the 'disputed property') was purchased by the respondent No. 1 in the name of Smt. Malti Gupta. The sale consid­eration for the same was paid from the joint account of Respondent No. 1 and his wife late Malti Gupta. Thereafter for the purpose of construction of a house on the plot so pur­chased a loan for a sum of Rs. 1,55,000/- was obtained by the respondent No. 1 and his wife late Smt Malti Gupta from U.P. Sahkari Avas Sangh Ltd. and the plot in dispute was jointly mortgaged by the respondent No.1 and his wife with the U.P. Sahkari Avas Sangh Ltd. by a mortgaged deed executed on 21-2-1994.

4. The respondent Nos. 1 to 4 have alleged that Smt, Malti Gupta was suffering from mental sickness for the last six years and due to said ailment she left the house of her hus­band on 15-2-2001 without any reason and without informing any member of her family and went to the house of respondent No. 6 and then to the house of respondent No. 5 at Jankipuram, Lucknow which is the residence of her father in law.

5. On 16th March, 2001 at about 6 p.m. some persons along with respondent Nos. 5 and 6 and others came to the house of respon­dent Nos. 1 to 4 claiming themselves to be the property dealers to whom late Smt. Malti Gupta had agreed to sell the house of respon­dent No. 1 alleging herself to be exclusive owner of the property and they threatened to take forcible possession of the house of re­spondent No. 1 which compelled the respon­dent Nos. 1 to 4 to file a suit giving rise to the first appeal from Order.

6. In regular suit No. 83/01 the respondent Nos. 1 to 4 moved an application for grant of interim injunction which was allowed by the trial court.

7. It is noteworthy that in the aforesaid suit no written statement was filed by any of the defendants and only an application under Or­der 39, Rule 4 of the Code of Civil Procedure for vacation of the interim injunction granted in favour of respondent Nos. 1 to 4 by the trial court was filed by Smt. Malti Gupta.

8. An application A-37 purporting to be un­der Order 22, Rule 10, C.P.C. was moved on 8-1-2002 by Smt. Sushila Gupta, mother of Malti Gupta (Now deceased) and Sri Rakesh Kumar Gupta, the appellant alleging that the property in dispute had devolved upon them by virtue of an alleged Will dated 11-3-2001 executed by Smt. Malti Gupta in their favour in respect of the property which is the sub­ject matter of regular suit No. 83/01. In the said application a prayer was made that the applicants be granted leave to contest the suit filed by the respondent No. 1.

9. The respondent Nos. 1 to 4 filed an ob­jection against the application A-37 stating therein that the Will dated 11-3- 2001 was a forged and fabricated document, a copy of the alleged Will dated 11-3-2001 has been filed as Annexure SCA-5 to the short counter-affidavit filed on behalf of respondents Nos. 1 to 4 in the present appeal (hereinafter re­ferred to as 'short counter-affidavit') and Smt. Malti Gupta had never executed any Will in favour of the appellant or her mother Smt. Sushila Gupta. She was not in a state of sound mind as she was suffering from mental de­pression . She was under treatment for the last six years and was also admitted in Noor Manzil Mental Hospital, Lal Bagh, Lucknow.

10. During pendency of the regular suit No. 83/01, Smt. Malti Gupta, who had been ar­rayed as defendant No. 1, died an unnatural death on 6-11-2001 while she was residing at her parents' house . Neither her husband, re­spondent No. 1 nor her sons and daughter respondent Nos. 2 to 4 were informed by the appellant or the respondent No. 5 about death of Smt. Malti Gupta and she was hurriedly cremated on the same day i.e. 6-11-2001. On coming to know about unnatural death of Smt. Malti Gupta and the oblique motive and mala fide intention of the appellant the respondent No. 1 attempted to lodge a F.I.R. at police station Naka on 6-11-2001 at about 6 p.m. but since the same was not registered, the re­spondent No. 1 filed an application under sec­tion 156(3) Cr. P.C. before the C.J.M., Luc­know on 8.1.2002 . Pursuant to the order of the C.J.M. passed on the said application a case was registered but the police, after in­quiry, submitted a final report. Thereafter the said case was treated as a complaint case by the C.J.M., Lucknow and numbered as com­plaint case No. 7506 of 2002 under sections 14/302, I.P.C. In the said case Ram Shanker Gupta (respondent No. 6), Smt. Sushila Gupta (mother of late Smt. Malti Gupta), Arun Kumar Gupta, Anil Kumar Gupta, Rakesh Kumar Gupta ( brothers of late Smt. Malti Gupta) were arrayed as accused and they were summoned by the C. J.M. on 18-7-2005 for being tried for the offences punishable under sections 147/302, I.P.C.

11. It is pertinent to note that after the death of Smt. Malti Gupta on 11-6-2004 the appel­lant filed an application for amending the ap­plication A-37 before the court below by mov­ing an application in this regard. In the said application a prayer was made that against the name of Smt. Malti Gupta the word 'de­ceased' may be recorded and Smt. Sushila Devi and the appellant Rakesh Kumar Gupta may be impleaded as parties in the regular suit and be given opportunity to contest the same . A true copy of the amended applica­tion A-37 has been filed as Annexure SCA-4 to the short counter-affidavit.

12. The contesting respondent Nos. 1 to 4 filed an application C-71 for getting the al­leged signatures of late Smt. Malti Gupta on the alleged Will compared with her admitted signatures on two documents i.e. the original mortgage deed and the original affidavit of Smt. Malti Gupta dated 19-9-2000 filed by the contesting respondents with the list as papers No. C-62 and C-63. The copies of aforesaid documents and application have been filed as Annexures SCA-6 and SCA-7 respectively to the short counter-affidavit.

13. The aforesaid application C-71 was not objected to by the appellant and the same was allowed by the trial court vide his order dated 30-9-2002. In pursuance to the said order the report of the Handwriting Expert was filed on 19-10-2002 in the court, copy whereof has been filed as annexure SCA-9 to the short counter-affidavit.

14. Thereafter two applications i.e. C-85 and C-95 were filed on 11-3-2002 and 5.5. 2003 respectively by the contesting respon­dents for producing the said Expert as a wit­ness in the suit. The said applications were not objected to by the appellant and were al­lowed on 25-8-2003. The copies of the said applications are on record which have been annexed as Annexure SCA-10 to the short counter-affidavit.

15. On 3-4-2003 the statement of attesting witness Ram Shankar Gupta was recorded and he was cross examined by the contesting re­spondents' counsel. The statement of Irshad Ali Siddiqui second attesting witness of the alleged Will was recorded and he was also cross examined . Copies of the statements of both the attesting witnesses Ram Shankar Gupta and Irshad Ali Siddiqui have been filed as SCA-11 and 12 to the short counter affida­vit.

16. On 7-10-2003 the hand writing expert was produced for recording of his examina­tion- in -chief which was opposed by the counsel for the appellant whereupon the trial court passed an order on 7-10-2003 observ­ing that since the report of the expert has al­ready been filed, there was no need to allow the plaintiff to get the examination-in-chief of the Expert recorded and the purpose will be served by getting the Expert cross-exam­ined by the appellant and accordingly allowed the counsel for the appellant to cross-exam­ine the Expert. The Expert was cross-exam­ined by the appellant's counsel. True copy of the statement of the expert dated 7-10- 2003 is on record as Annexure SCA 13 to the short counter-affidavit.

17. Trial court, on the basis of the aver­ments made in the application A-37 and the objection filed by the contesting respondents and after considering the evidence on record, rejected the appellant's application A-37 by order dated 22.4.2006 holding that the Will, on the basis of which the appellant was seek­ing leave to contest the suit, appeared to be a forged and fabricated and was a totally sus­picious document. The learned trial court fur­ther held that the appellant had also failed to prove due attestation of the Will in accordance with the provision of Section 63 of the In­dian Succession Act.

18. Learned counsel for the appellant as­sailed the impugned order on the ground that under Order 22, Rule 10, C.P.C. no detailed inquiry at the stage of granting leave is con­templated . The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution and the question about the existence and validity of the assignment or devolution can be consid­ered at the trial of the suit on merits. Thus the court below committed a patent illegality in deciding the question of existence and valid­ity of the Will on the basis of which the ap­pellant was seeking impalement in the suit at the stage of deciding the appellant's appli­cation under Order 22, Rule 10, C.P.C. after holding an elaborate enquiry.

19. Learned counsel for the appellant fur­ther submitted that the persons other than le­gal heir can also be legal representative. The decision as to who is legal representative for the purpose of proceedings is necessarily lim­ited for the purpose of carrying on the pro­ceedings and cannot have effect of conferring of any right of heirship to the estate of de­ceased. The decision on this issue also does not operate res judicata on the question of heirship in the subsequent proceedings. Therefore, the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not a legal represen­tative for the purpose of proceedings before the Court.

20. Learned counsel next submitted that the point what is required to be considered is whether the person claiming to represent the estate of deceased for the purpose of has sufficient interest in carrying on litigation. In case of rival claimants, it may also be neces­sary to decide that out of the rival claimants, who is the person entitled to represent the es­tate for the purpose of particular proceedings. Even that determination does not result in de­termination of inter se right to succeed to property of the deceased and that right has to be established in independent proceedings in accordance with law and the court below clearly erred in law in rejecting the appellant's application A-37 as the Court has only to be prima facie satisfied for exercising its discre­tion in granting leave for continuing the suit by or against the person on whom the inter­est has devolved by assignment or devolu­tion and the question about the existence and validity of the assignment or devolution can be considered at the trial of the suit on mer­its.

21. Learned counsel for the appellant lastly submitted that the finding recorded by the court below that appellant failed to prove due execution and attestation of the will in dis­pute and the same appeared to be a forged and fabricated document is based upon totally inadmissible evidence. The court below al­though observed that the signature on the mortgage deed was admitted to the appellant to be of late Malti Gupta whereas the correct fact is that the appellant never admitted that the alleged signature on the mortgage deed was that of late Malti Gupta. According to the appellant's counsel since the report of the Handwriting expert was not formally proved as no examination in chief of the Expert was admittedly recorded, the same could not be relied upon for the purpose of determining the genuineness of the signature of late Smt. Malti Gupta.

22. In support of his submission the learned counsel for the appellant has relied upon the following decisions:

1.AIR 1994, Rajasthan 31, Kalu Ram v. Charan Singh

2. AIR 1987 Bombay 276, Jawaharlal v. Saraswatibai

3.AIR 2002 SC 2180, Jaskirat Datwani v. Vidyawati

4.1999 (17) LCC-1451, Jagdish v. District Judge, Gorakhpur

5. (2005)11 SCC 403 : (AIR 2005 SC 2209), Amit Kumar Shaw v. Farida Khatoon

6.(2006) 9 SCC 199, Devendra Kumar Sarewgee v. Purbanchal Estates (P) Ltd. and others

7.AIR 2001 SC 2552, Dhurandhar Prasad Singh v. Jai Prakash University and others

8.AIR 1989 Allahabad 133, Balkrishna Das v. Radha Devi

23. Learned counsel for the respondents defending the impugned order submitted that the impugned order passed by the court be­low does not suffer from any illegality or in­firmity and the same was passed after giving full opportunity to both the parties to lead evidence and after considering the entire mate­rial on record. Since the orders passed in a proceeding under Order 22, Rule 5.2lor Or­der 22,10, C.P.C. and under Order 1, Rule 10 C.P.C. do not operate as res judicata, the ap­pellant cannot be said to be prejudiced in any manner by the finding recorded by the court below with regard to the genuineness and validity of the Will on the basis of which the appellant claims leave for contesting the suit and the appellant can conveniently establish his right over the disputed property on the basis of alleged Will executed by Smt. Malti Gupta in his favour in properly instituted pro­ceedings.

24. Learned counsel for the respondents next submitted that the report of the Expert could not be discarded on the ground that the examination-in-chief of the Expert was not recorded as the appellant was given full op­portunity to cross-examine the Expert and the appellant cross-examined the Expert exten­sively and now it does not lie in the mouth of the appellant to argue that the report of the Expert was inadmissible on account of lack of formal proof specially when the examina­tion-in-chief of the Expert could not be re­corded due to the appellant's own objection. In support of his contention the learned coun­sel for the respondents relied upon a decision of this Court reported in AIR 1989 Allahabad 133, Balkrishna Das Agarwal v. Radha Devi and others. The relevant paras 28 and 38 of the said judgment, relied upon by the learned counsel for the respondents, run as under:

"28. In the words of Rogers, an expert in any science, art or trade is one who by prac­tice and observation has become experienced therein. An expert, therefore, really means a person who by reason of his training or expe­rience is qualified to express an opinion whereas an ordinary witness is not compe­tent to do so. His evidence is only an opinion evidence which is based on his special skill or experience. In view of the language of S.45, experience. It is necessary that before a per­son can be characterised as an expert, it is necessary that there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. He must have made special study of the subject of acquired special experience therein. Thus before the testimony of a wit­ness becomes admissible, his competency as an expert must be shown, may be by show­ing that he was possessed of necessary quali­fication or that he has acquired special skill therein by experience. Apart from the ques­tion that the report of a hand writing expert may be read in evidence, what is necessary is that the expert should be subjected to cross examination because an expert like any other witness is fallible and the real value of his evidence consists in the rightful inferences which he draws from what he has himself observed and not from what he merely sur­mises."

25. Learned counsel for the respondents next submitted that the Will upon which the appellant is relying is shrouded with suspi­cious circumstances. It is an unnatural Will as the testator has, by the Will in question, bequeathed her entire property to her mother and brother to the total exclusion of her two sons, one daughter and husband . There is no mention in the Will as to why Smt. Malti Gupta disinherited her children. The unnatu­ral death of Smt. Malti Gupta at the residence of the propounder who hurriedly arranged for cremation of Smt. Malti Gupta without in­forming her husband and her children was another very serious circumstance which raises serious suspicion with regard to genu­ineness of the Will.

26. Learned counsel for the respondents next submitted that late Smt. Malti Gupta had not executed any Will in favour of the appel­lant and her mother and if it was in existence, then that fact ought to have been mentioned in the application filed by late Smt. Malti Gupta in the court below for vacating the ex parte injunction order granted in favour of respondent Nos. 1 to 4 in regular suit No. 83/01. The said application does not contain even a whisper of any allegation with regard to any Will, which gives rise to a very strong suspi­cion that on the date on which late Smt. Malti Gupta had filed stay vacation application be­fore the court below, no such Will as alleged by the appellant existed.

27. Learned counsel for the respondents next submitted that since the appellant, who is the propounder of the Will, failed to ex­plain the suspicious circumstances surround­ing the execution of the Will and to dispel the same to the satisfaction of the court below, it cannot be said that the court below commit­ted any error in holding the Will to be a sus­picious, forged and fabricated document. In support of this submission he again placed reliance upon para 38 of the decision given by this Hon'ble Court in the case of Balkrishna Das Agarwal : (AIR 1989 All. 133) (supra) which reads as under:

38. Coming now to the will set up by the defendant No.1. We must bear in mind that the mode of proving a Will does not ordinarily differ from that of proof of any other docu­ment except as to the special requirement of attestation prescribed by S. 63 of the Indian Succession Act. The onus of proof rests squarely on the person propounding a Will and in the absence of any suspicious circum­stances surrounding its execution, the proof of testamentary capacity and testators signa­tures as required by law would normally suf­fice in discharging the onus. Where, however, suspicious circumstances are found to exist, the propounder of the Will must explain them and dispel all the suspicions to the satisfac­tion of the Court before it is accepted as genu­ine. This would be so even in those cases where such a plea has not been raised and on proved circumstances had given rise to doubt. In such cases also, it is for the propounder to satisfy the conscience of the Court. These sus­picious circumstances may be as to the genu­ineness of the testator's signatures, his men­tal condition, the nature of disposition being unnatural and improbable or unfair in the light of the relevant circumstances or may consist of such other indications inherent in the will as would show that the testator mind was not free . In any of such cases, the propounder must remove all legitimate suspicions to the entire satisfaction of the Court. These rules are based on ground of public policy as the Will often, if not always, comes under chal­lenge only when the testator has already departed from this would and cannot, therefore, assist the Court enquiring into its genuine­ness in any manner."

28. Learned counsel for the respondents lastly submitted that the appellant's applica­tion A-37 after being amended by the appel­lant upon the death of Smt. Malti Gupta be­came essentially an application under Order 22, Rule 4, C.P.C. and a court entertaining an application under Orders 22, Rule 4 or 10, C.P.C. or an application under Order 1, Rule 10, C.P.C. has full jurisdiction before grant­ing leave to examine the prima facie claim of the person seeking leave or substitution for determining as to whether the person claim­ing leave to contest a suit or seeking substi­tution has any basis for his claim or not. In the present case the court below in rejecting the application of the appellant exercised its discretion upon sound judicial principles and it was not done in an arbitrary manner as al­leged by the appellant. Hence, the impugned order passed by the court below does not suf­fer form any illegality or infirmity warrant­ing an interference by this court.

29. In support of his submission the learned counsel for.the respondents has relied upon the following decisions:

1. AIR 1982 All. 323, Brij basi v. Moti Ram and others

2. 1999(17) LCD, 1451, Jagdish v. DJ. Gorakhpur

3. (1998)4 SCC, 384 : (AIR 1998 SC 2861), Gurdial Kaur v. Karta Kaur

4. (2005) 11 SCC,403 : (AIR 2005 SC 2209), Amit Kumar Shaw v. Farida Khatoon

5. AIR 1996 M.P.,13, Smt. Sarmishtha Devi v. Lal Saheb

6. AIR 1994 Rajasthan 31, Kalu Ram v. Charan Singh

7. AIR 1989 Allahabad 194 : (1988 All LJ 758), Ambrish Kumar Singh v. Raja Abhushan Bran

8. AIR 2007 Himachal Pradesh 68, Smt. Leela Devi v. Neelmani

9. (2003) 2 SCC 91 : (AIR 2003 SC 761), Janki Narayan Bhoi v. Narayan Namdo Kadam

10. AIR 2007 SC 2219, Apoline D' Souza v. John S' Souza

30. We have considered the submissions made by the learned counsel for the respec­tive parties and perused the record.

31. The question which arises for consid­eration before this court is whether the court below committed any illegality in examining the claim of the appellant for being impleaded in the suit after the death of Smt. Malti Gupta on merits and the genuineness and the valid­ity of the Will on the basis of which the ap­pellant claims devolution of the disputed property upon himself at the stage of decid­ing the appellant's application A-37 itself in­stead of considering the same at the trial of the suit on merits.

32. Before proceeding to decide this ques­tion, we may refer to the provisions contained under Order 22, Rule 10(1) and under Order 1, Rule 10, C.P.C. which run as under:

Order 1 Rule 10 C.P.C.

1. Suit in name of wrong plaintiff:-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mis­take and that it is necessary for the determi­nation of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

2. Court may strike out or add parties:- The Court may at any stage of the proceed­ings, either upon or without the application of either party and on such terms as may ap­pear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effec­tually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

3. No person shall be added as plaintiff su­ing without a next friend or as the next friend of a plaintiff under any disability without his consent.

4. Where defendant added, plaint to be amended: - Where a defendant is added, the plaint shall, unless the Court otherwise di­rects, be amended in such manner as may be necessary and amended copies of the sum­mons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

5. Subject to the provisions of the Indian Limitation Act, 1877 ( 15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

Order 22, Rule 10, C.P.C.

1. Procedure in case of assignment before final order in suit: - (1) in other cases of an assignment, creation or devolution of any in­terest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

33. A perusal of Order 1, Rule 10, C.P.C. shows that the Court, at any stage of the pro­ceeding, can order for striking out the name of any one and can order for adding the name of any person whose presence before the court is necessary in order to enable the Court ef­fectively and completely adjudicate upon and settle all the questions involved in the suit.

34. A bare perusal of provision contained under Order 22, Rule 10, C.P.C. shows that the same can be invoked by a person claim­ing devolution or assignment.

35. In our opinion the appellant's applica­tion under Order 1, Rule 10, C.P.C. is at all not maintainable and has been rightly rejected by the court below.

36. Now, coming to the Order 22, Rule 10, C.P.C., we find that the said provision can be invoked in case of an assignment, creation or devolution of any interest during the pen­dency of a suit for seeking leave of the court for continuing a suit against the persons to or upon whom such interest has come or de­volved.

37. In the present case the appellant filed the application under Order 22, Rule 10 read with S. 151, C.P.C. on the basis of a Will dur­ing the lifetime of the testator Smt. Malti Gupta. It is not in dispute that the right of assignment, creation or devolution of any in­terest on the basis of a Will shall take place only after the death of the testator and a ben­eficiary under a Will shall have no right to maintain the application under Order 22, Rule 10, C.P.C. during the lifetime of the testator. The numerous cases, which have been cited on behalf of the appellant for establishing that the application of the appellant was maintain­able under Order 22, Rule 10 C.P.C., all re­late to assignment, creation or devolution of interest on the basis of either by gift or sale. Learned counsel for the appellant has failed to show any decision holding that an applica­tion on basis of a Will under Order 22, Rule 10, C.P.C. was maintainable during the life­time of the testator.

38. However, since Smt. Malti Gupta, ex­ecutor of the Will in question, died before the application A-37 could be decided by the trial court and the said application was got duly amended by the appellant, the same can be safely treated to be an application for substi­tution and since Order 22, rule 5, C.P.C. em­powers a court before granting substitution to a person to determine the question as to determination of legal representative where a question arises as to whether any person is or not a legal representative of a deceased plaintiff or deceased defendant, it cannot be said that the court below committed any le­gal error in holding elaborate inquiry to de­termine validity of the Will on the basis of which the appellant claims himself to be im-pleaded as a defendant in the suit after the death of Smt. Malti Gupta.

39. We have gone through the disputed Will and have examined the statements of the attesting witnesses and we are not satisfied that the attesting witnesses proved due attes­tation of the Will in accordance with section 63 of the Indian Succession Act and hence the court below did not commit any error in holding the Will to be a forged and fabricated document while rejecting the appellant's ap­plication A-37.

40. The alleged Will which runs in two pages does not bear the signature of the at­testing witnesses and the signatures of the attesting witnesses are contained on a separate sheet of paper which does not appear to be a part of the Will but appears to have been at­tached with the Will subsequently . Third page of the Will containing signature of the attest­ing witnesses has not been signed by the tes­tator late Malti Gupta. These circumstances raise serious doubts about the genuineness of the Will specially in view of the fact that the learned counsel for the appellant has failed to give any explanation for the omission of the attesting witnesses to put their signatures on the Will and non-signing of the third page of the Will containing the signature of the at­testing witnesses by the testator late Smt. Malti Gupta.

41. The court below while rejecting the ap­plication A-37 came to the conclusion that sig­natures contained in the alleged Will dated 11-3-01 did not tally with the signatures of late Smt. Malti Gupta made on the mortgage deed and the original affidavit filed by late Smt. Malti Devi on 19-9-2000. The appellant never disputed that the signatures contained in the affidavit filed on 19-9-2000 were not genuine and hence, it cannot be said that the signatures of late Smt. Malti Gupta contained in the Will were never compared with the ad­mitted signatures and the contrary submis­sions made on behalf of the appellant's coun­sel has no force and is liable to be rejected.

42. Lastly, in view of the settled position of law, the decision in respect of legal repre­sentative of the deceased referred to under Order 22, rule 5, C.P.C. or under Order 22, Rule 10, C.P.C. is not a decision on merits and shall not operate as res judicata when two categories of legal representatives claim to be substituted or impleaded. It cannot be said that the appellant has been prejudiced in any man­ner by rejection of his application A-37 as it is always open to him to claim his right on the basis of the alleged Will by seeking nec­essary declaration before appropriate forum.

43. We fully accept the submission made by the learned counsel for the respondents that since the appellant failed to satisfy the con­science of the Court that the Will in question was executed and attested in the manner re­quired under the Indian Succession Act,1925, and that the Will was product of the free voli­tion of the executant, the court below was perfectly justified in refusing to accept the valid execution of the Will by indicating rea­sons and coming to a specific finding that the suspicion has not been dispelled to the satis­faction of the court below. Thus, the finding recorded by the court below with regard to the validity of the Will does not suffer from any illegality or infirmity.

44. We are fully satisfied that the order passed by the court below does not suffer from any illegality or infirmity. We are further of the view that the court below did not commit any error in embarking upon an inquiry to determine the genuineness and validity of the Will on the basis of which the appellant claimed impleadment as a defendant in the regular suit and in examining the claim of the appellant for being impleaded as a party to the regular suit on merits while deciding the application A-37 of the appellant instead of considering the same at the trial of the suit on merits. The ratio discerning from the catena of cases cited on behalf of the appellant in support of his claim is that no detailed inquiry at the stage of granting leave under Order 22, Rule 10 is contemplated and the court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit for or against the person on whom the interest has devolved by assignment or devo­lution and the question about the existence and validity of the assignment or devolution can be considered at the trial of the suit on merits.

45. In our opinion the ratio of the cases relied upon by the learned counsel for the pe­titioner will not apply to the facts and circum­stances of the present case in view of the fact that the appellant's application A -37 after the amendment was essentially an application under Order 22, Rule 4, C.P.C. and since the contesting respondents objected to the appellant's claim for impleadment on the ba­sis of the Will in question in the regular suit as legal representative of late Malti Gupta al­leging that the Will relied upon by the appel­lant was a forged and fabricated document and the appellant was neither the heir nor the legal representative of late Malti Gupta, the court below rightly proceeded to decide the question as to whether the appellant is or not a legal representative of late Malti Gupta in the exercise of its power under Order 22, rule 5, C.P.C. and has rightly rejected the appellant's claim.

46. For the reasons indicated, herein above, we do not find any reason to interfere with the finding recorded by the court below in the impugned order and the same is con­firmed.

47. This appeal, therefore, fails and is dis­missed without any order as to costs.

Appeal dismissed.