The right to sue did not survive against the deceased defendant, and the suit would proceed against the surviving defendant as the absolute owner of the property.

1. THE Judgment of the Court was as follows :

Title Suit No. 169 of 2006 has been instituted by the present petitioners for declaration of tenancy right in the Court of the learned Civil Judge, Junior Division, 3rd Court at Alipore. The defendants were Smt. Gouri Haider and Sri Basudeb Haider, the mother and brother respectively of the petitioner No. 1. During pendency of the suit, Smt. Gouri Haider died. An application was filed by the surviving defendant for expunging the name of his mother, Smt. Gouri Haider (since deceased), on 3rd June, 2010. The petitioners filed their objection thereto. The petitioners simultaneously had filed a application under Order XXII Rule 4, Civil Procedure Code, to bring or record the heirs and legal representatives of the deceased defendant No. 1.

2. THE application under Order XXII Rule 4 of the Code together with the petition for expunging the name of the deceased defendant No. 1 was taken up for consideration by the learned Judge. By order No. 36 dated 15th September, 2010, the application of the petitioners was rejected whereas the application filed by the surviving defendant, being the defendant No. 2, was allowed. The said order is the subject-matter of challenge in the present application under Article 227 of the Constitution.

The learned Judge recorded that the suit property initially belonged to Sri Tulsi Haider (since deceased), the husband of the deceased defendant No. 1 and the father of the defendant No. 2 in the suit. He had executed a Will and had bequeathed the suit property in favour of the defendant No. 2, providing for life interest in favour of the mother, i.e. Smt. Gouri Haider. With the demise of Smt. Gouri Haider, the learned Judge was of the view that the right to sue did not survive against the deceased defendant No. 1 and that the defendant No. 2 being on record, the suit would proceed against him.

3. MR. Bhattacharya, learned Advocate appearing for the petitioners, contends that grant of probate of the Will executed by Sri Tulsi Haider, the testator, has been challenged and the issue is pending in appeal. In the event the appeal succeeds, the other heirs and legal representatives of Smt. Gouri Haider (since deceased) could be impleaded as defendants against whom the suit could be proceeded with.

4. I find no reason to agree with Mr. Bhattacharya. It is not in dispute that all the heirs and legal representatives of Sri Tulsi Haider (since deceased) had consented to grant of probate including the petitioner No. 1. The probate was granted on 23rd November, 1984. More than six years later, the petitioner No. 1 had filed an application for revocation of the said probate. The revocation case was dismissed on contest on 6th February, 1995. The order of dismissal was carried in appeal before this Court being F. A. No. 321 of 2003, which is pending.

Having regard to the fact that apart from the petitioner No. 1 none had objected to grant of probate in favour of the defendant No. 2 in the suit (the opposite party herein), even if the appeal filed by the petitioner No. 1 succeeds, the other sisters and brothers of the petitioner No. 1 and the opposite party having consented to grant of probate in favour of the opposite party and not having challenged such grant, as has been challenged by the petitioner No. 1, they cannot succeed to the estate of late Tulsi Haider. The petitioner No. 1, therefore, cannot claim any legal right to bring on record the other heirs and legal representatives of late Tulsi Haider merely because the appeal is pending. The opposite party being the absolute owner as of date in pursuance of the probate granted in respect of the Will executed by the testator, the suit may proceed against him being the surviving defendant. The trial Court, while passing the order impugned, was justified in rejecting the application under Order XXII Rule 4 of the Code on the ground that Smt Gouri Haider (since deceased) had only limited interest in the suit which stood