( 1 ) THIS Civil Revision Petition is preferred against I. A. Nos. 25 and 26 in O. S. No. 189/85 as suit for partition.

( 2 ) I. A. No. 25 is filed under Order 22 Rule 10 of CPC to bring on record the respondents-1 (a to h) and I. A. No. 26 is filed under Order 22 Rule 9 of CPC to set aside the abatement of the suit. The Trial Court has allowed both the applications and aggrieved by the same. the first defendant is before this Court in the above Civil Revision Petition.

( 3 ) IT is stated that one Gangadharaiah was a philonthrophist and he died leaving a will on 23-6-1984 in which he directed that a Trust to be constituted with respondents 1 (a to h) as the trustees and the Trust shall take over his estate. It is further claimed that the Trust has come into being on 6-10-1995 and the respondents mentioned above have become its trustees. Consequently, they sought the permission of the Court to come on recort to contest the case and for setting aside the abatement. The Trial Court on the recitals of the Will decided that it is the plaintiff's desire to creat a Trust for the Management of his estate for proper utilisation of his properties. The copy of the Trust deed was also relied upon by the Trial Court and, ultimately both the applications were allowed.

( 4 ) SRI Tarakaram, Senior Advocate appearing for the petitioner's counsel Sri Narayan submitted that in the absense of proof of will and without any probate being granted, the respondents cannot be allowed to be brought on record. The will is executed in favour of the strangers and the will itself is a mystery. Consequently, they cannot be brought on record. He relied upon the dictum of this Court in ILR (1973) Kant 851, Mohd. Kasim Ali v. Smt. Iyder Zohrabi for the proposition that refusal to add the persons claiming under the Will in a suit for partition is the valid order and by such addition the whole character of the suit cannot be altered. Thus, he prayed for dismissal of both the I. As.

( 5 ) SRI M. S. Purushothama Rao learned counsel for the respondents submitted that the provisions of Order 22 Rule 5 will come into operation and this provision is made for the purpose of defending the suit otherwise the suit will be dismissed for want of persons to prosecute.

( 6 ) HAVING considered the submissions made by the counsel, I find that the order of the Trial Court is not liable to be interfered with.

( 7 ) THE definition of legal representative under S. 2 (11) of CPC reads as follows:"legal representative" 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 and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. "therefore any intermeddler can be the legal representative. Consequently, the contention that a stranger come on record through the Will cannot be sustained. Order 22 Rule 5 contemplates the decision for such question by the Court below which is to the following effect;"determination of question as to legal representative 1. Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court;provided that where such question arises before an appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the appellate Court may take the same into consideration in determining the question. "

( 8 ) IT is also seen that the order if passed after enquiry under Order 22 Rule 5 is not liable to be interfered with in revision under S. 115 of CPC has been considered by this Court in CRP No. 602/74 disposed of on 1-7-1974 and reported in Short Notes in (1975) 1 Kant. LJ (Short Note) No. 39.