1. This civil revision petition has been preferred against the order of the Appellate authority (Subordinate Judge), Nagapattinam in R.C.A 9 of 1985, reversing the order passed in I.A 65 of 1983 in R.C.O.P 22 of 1962, passed by the Rent Controller (District Munsif), Nagapattinam. Briefly stated, the facts giving rise to the civil revision petition are as follows: The second respondent herein is a tenant in occupation of a building which belongs to a trust ‘Ammalu Ammal Kattalai’ whose trustee was one P.S Rama-swami Chettiar, who died on 3-12-1982. He filed R.C.O.P 22 of 1962 on the file of the Rent Controller, Nagapattinam, praying for the relief of deposit of rents in respect of the building in his occupation and it is not now in dispute that an order was passed directing the second respondent herein to deposit the rents due and payable by him in respect of the building in his occupation. The petitioner herein is the brother's son and the first respondent is the adopted son of deceased P.S Ramaswami Chettiar. In I.A 65 of 1983 in R.C.O.P 22 of 1962, the first respondent prayed that as the adopted son of deceased P.S Ramaswami Chettiar, he should be brought on record as his legal representative. This application was opposed by the petitioner on the ground that deceased P.S Ramaswami Chettiar executed a will on 21-6-1982 in and by which he had appointed the petitioner as the trustee after him and, therefore, the first respondent cannot, even as the adopted son, claim to be brought on record as the legal representative of deceased P.S Ramaswami Chettiar. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller held that the will under which the petitioner claimed to have been appointed as the trustee of the Trust was true and valid and that even though the first respondent herein happened to be the adopted son of deceased P.S Ramaswami Chettiar, he could not succeed as the legal representative of deceased P.S Ramaswami Chettiar, in relation to the trust. On this conclusion, I.A 65 of 1983 was dismissed. Aggrieved by this, the first respondent herein preferred R.C.A 9 of 1985 before the Appellate Authority (Subordinate Judge), Nagapattinam. The Appellate Authority, while accepting that the will under which the petitioner claimed to have been appointed as a trustee of the Trust was true, however, took the view that as the first respondent has been adopted by deceased P.S Ramaswami Chettiar, even in 1962, he could not validly appoint a trustee for administering and managing the Trust and its properties and, therefore, the first respondent, as a hereditary trustee, would be entitled to recover the rents from the building belonging to the Trust. On the aforesaid conclusions, the Appellate Authority allowed the appeal and ordered the application filed by the first respondent and further directed him to withdraw the rents in deposit. It is the correctness of this order that is challenged in this civil revision petition.

2. Learned counsel for the petitioner first contended that the application filed by the first respondent herein in I.A 65 of 1983 purporting to be under O. 22, R. 4. C.P.C was not maintainable and that application was also filed beyond the time prescribed in rule 25 of the Rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act), and could not have been entertained. On the other hand, learned counsel for the first respondent submitted that the petitioner had already been brought on record as the legal representative of deceased P.S Ramaswami Chettiar and the application filed by the first respondent was only for bringing him on record as an additional legal representative and, therefore, there was no question of filing the application in accordance with R. 25 and as such the application was in time and entertainable.

3. There is no dispute that the first respondent is the adopted son of deceased P.S Ramaswami Chettiar. In so far as the Will Ex.B1 dated 21-6-1982 stated to have been executed by deceased P.S Ramaswami Chettiar is concerned, learned counsel for the first respondent contended that its execution by the testator had not been established and that the conclusion of the authorities below contra is erroneous. In this connection, it has to be noticed that the Will had been attested by R.Ws 3 and 2 in that order. A careful perusal of their evidence clearly establishes that deceased P.S Ramaswami Chettiar desired to make provision for the management of the Trust properties in a Will and had taken them to the house of the scribe one S. Narayanaswami, and there the will had been written after the details thereof had been furnished by the testator. Their further evidence clearly establishes that the testator signed the will in the presence of R.Ws 3 and 2, and they had also signed as attestors in the presence of each other as well as the testator. Nothing has been elicited in the course of cross examination of R.Ws 3 and 2 to discredit their testimony regarding the execution of the will by deceased P.S Ramaswami Chettiar and the attestation thereof by them. Apart from it, the will had been registered by P.S Ramaswami Chettiar, himself on 26-8-1982, before he died on 3-12-1982, as could be seen from Ex.R2 Thus, the evidence of R.Ws 3 and 2 clearly establish the execution of the Will by deceased P.S Ramaswami Chettiar, and the authorities below were, therefore, right in concluding that Ex.R1 had been established to be the Will executed by deceased P.S Ramaswami Chettiar. The contention of the learned counsel for the first respondent that (he conclusion of the authorities below in this regard is erroneous has to be rejected.

4. Thus, it is seen that the petitioner claims to have been appointed as a trustee under the Will of deceased P.S Ramaswami Chettiar, while the first respondent has projected his rights as the legal representative of the deceased as an adopted son. There is no dispute that on the strength of the Will executed by late P.S Ramaswami Chettiar, the petitioner had already been recorded as his legal representative. It is the first respondent who is now seeking to come on record as the legal representative of deceased P.S Ramaswami Chettiar not along with the petitioner, but in his own independent right as an adopted son. Under those circumstances, it is provided under R. 25 of the Rules framed under the Act, that an application for making the legal representative of a deceased person party to a proceeding under the Act shall be preferred within one month from the date of the death of the person concerned or the date of having knowedge of the death of the person concerned. It was not disputed before this Court that the proceeding taken in R.C.O.P 22 of 1962 continues to remain on the file of the Rent Controller, Nagapattinam and the rents are being deposited. In view of that, if the first respondent was desirous of bringing on record himself as the legal representative, he should have filed the application within one month from the date of death of P.S Ramaswami Chettiar on 3-12-1982, or thedate of his having knowledge of the death of the person. In this case, the two dates cannot be different, for, the first respondent is none other than the adopted son of deceased P.S Ramaswami Chettiar and, therefore, on the same day, namely, 3-12-1982, the first respondent had known about the death of his adoptive father P.S Ramaswami Chettiar. Neither under the provisions of the Act nor the Rule thereunder, O. 22 R. 4. C.P.C, has been made applicable to proceedings under the Act, Presumably in view of its non-applicability, R. 25 had been framed to the effect that the application should be filed within thirty days. Learned counsel for the petitioner is certainly well founded in his contention that the application should have been laid by the first respondent within one month from 3-12-1982 and having been filed only on 6-9-1983, long after the time limit provided for under R. 25, the application could not have been entertained. The contention of the learned counsel for the first respondent that the adopted son was merely trying to come on record as an additional legal representative is without force. His claim is that as the adopted son, he is the only person entitled to be brought on record as the legal representative of deceased P.S Ramaswami Chettiar and not any other. Therefore, the contention of the learned counsel for the first respondent that R. 25 would not be applicable is without force. The decisions in Ammanamma v. Ramireddi A.I.R 1978 A.P 410., and Vedachala Gramani v. Sivasankari Ammal 61 L.W 589=A.I.R 1949 Mad. 274., relied on would also be of no assistance to the first respondent. It has, therefore, to be held that the application filed by the first respondent under O. 22 R. 4 C.P.C was not maintainable and otherwise could not also have been entertained as it has been filed beyond the time limit prescribed in R. 25 of the Rules referred to earlier.

5. Learned counsel for the petitioner next contended that by the refusal of the Rent Controller to bring on record the first respondent as a legal representative of deceased P.S Ramaswami Chettiar there was no adjudication of any rights of his in relation to the Trust and its properties, and, therefore, the appeal preferred before the Appellate authority was incompetent. Reliance in this connection was also placed on the decision in Lakshmiamma v. Sivasubramaniam. On the other hand, learned counsel for the first respondent submitted that the refusal of the Rent Controller to bring on record the first respondent as the legal representative of deceased P.S Ramaswami Chettiar decided that the first respondent was not entitled to receive the rents in deposit and that would enable the first respondent to maintain the appeal before the Appellate Authority.

6. The relief prayed for by the first respondent in I.A 65 of 1983 was only to bring him on record as the legal representative of deceased P.S Ramaswami Chettiar, and nothing more. That application did not purport to make any claim for the rents in deposit. The affidavit filed by the first respondent refers to another I.A No. 35 of 1983, for the purpose of payment out of the amounts in deposit. It is, therefore, obvious that the Rent Controller, while disposing of I.A No. 65 of. 1983, had merely held that the first respondent is not entitled to be brought on record as the legal representative. The filing of an application to bring on record the legal representative of a deceased party is only to assist the further prosecution of the proceedings and to regulate the procedure and does not in any manner affect any right or liability. In Lakshmiammal v. V. K. Sivasubramaniam. I had occasion to consider the identical question as well as the effect of an order either bringing or declining to bring on record a legal representative in a proceeding under the Act and it has been laid down that the order passed is merely procedural assisting the continuation of the proceedings without in any manner affecting the rights of parties and such an order not affecting the rights of parties would not be appealable. That principle would be applicable to this case, also, and, therefore, the appeal preferred by the first respondent before the Appellate Authority was not maintainable as well.

7. Lastly, learned counsel for the petitioner contended that the proper course would be for the first respondent to agitate his claims to the trusteeship as well as its properties and the income therefrom in a separate suit and not to project such rights in the course of proceedings under the Act. However, learned counsel for the first respondent submitted that the decision as to who is the legal representative of deceased P.S Ramaswami Chettiar in so far as the Trust and its properties are concerned might be treated as having been finally decided in the course of the present proceedings, and, therefore, no useful purpose would be served by relegating those matters to a separate suit.

8. From the order of the Appellate Authority, it is seen that it had been influenced by only one consideration, namely, that the trusteeship is hereditary and therefore, the first respondent herein, who is the adopted son of the last trustee, cannot be deprived of that right by the appointment of the petitioner herein as a trustee under the Will Ex.Rl In arriving at this conclusion, the Appellate Authority had not carefully bestowed its attention upon the provisions of the Wilt. Though from clauses 1 and 3 of the Will, it appears that prior to deceased P.S Ramaswami Chettiar, his father had been in management of the trust and its properties as trustee, it is seen from clause 7 that in the exercise of the power of appointment of a successor vested in the existing trustee, the testator had appointed the petitioner as trustee for the management and administration of the trust and its properties instead of the adopted son. It is further seen from clause 4 of the Will that the testator had given reasons as to why he was not inclined to appoint his adopted son as a trustee in respect of the Trust and its properties. The testator had categorically stated that the first respondent had not bestowed any attention in the affairs of the Trust and had been looking after only his business, and, therefore the testator did not desire to entrust the management of the Trust and its properties and its affairs to him. In other words, the testator, taking into account the paramount interest of the Trust and its properties and in the exercise of a power of appointment of a successor claimed by him to have been vested in him, has appointed the petitioner as the trustee in respect of the Trust. The Appellate Authority had completely overlooked these aspects, but had merely proceeded to consider the nature of the office of the trustee as a hereditary one and, therefore, the first respondent could not be deprived of the same. While doing so, it had ignored the clauses already referred to in the Will, which led the testator to appoint the petitioner instead of the first respondent as trustee, though the first respondent was his adopted son. Under those circumstances, the Appellate Authority was in error in assuming that the trusteeship in this Trust was hereditary and the first respondent cannot, as the adopted son, be denied the benefit of such hereditary trusteeship.

9. Now the question is, whether the refusal to recognise the first respondent as a trustee for the purpose of those proceedings would in any manner affect his rights as such (trustee, if otherwise he has such rights. Even Jin cases governed by O. 22 C.P.C, an enquiry [held under O. 22, R. 5 C.P.C, has been held jto be collateral to the suit and any adjudication in such an enquiry cannot operate as res judicata. In Muniappa Nadar (deceased) v. Doraipandi Nadar, I had occasion to consider this identical question and after referring to the several decisions of different courts on an aspect, it was held that any adjudication in the course of proceedings for recording legal representatives would not make the legal representatives heirs as such, but the finding should be construed as having been given only for the further prosecution of the proceedings and not as a decision on merits operating as res judicata. In view of the principles laid down in the decision referred jto above, the proper course for the first respondent would be to agitate all his claims in respect of the trusteeship and its properties as well as the income therefrom in an appropriately framed suit especially when the petitioner had already been brought on record for the purpose of these proceedings as the legal representative of deceased P.S Ramaswami Chettiar. Therefore, the last contention of the learned counsel for the petitioner is also well founded. For the aforesaid reasons, the civil revision petition is allowed and the order of the Appellate Authority is set aside and that of the Rent Controller will stand restored. Each party is directed to bear his costs.

VCS/RR.