( 1 ) RULE. Mr. B. K. Damani, learned counsel, waives service of Notice of Rule for the respondents. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the matter is being heard and finally decided, today.

( 2 ) THIS petition has been preferred under Articles-226 and 227 of the Constitution of India, challenging order dated 14th August, 2008 passed by the learned Principal Senior Civil Judge, Jam-Khambhaliya, rendered below applications at Exh. 16 and Exh. 22, filed under the provisions of Order-1 Rule-10 of the Code of Civil Procedure ("the Code" for short) for bringing on record the heirs and legal representatives of deceased Champaben Lalji Vashram, defendant No. 9, in Special Civil Suit No. 3/2005.

( 3 ) THE brief factual background necessary for the decision of the petition is that, the respondent No. 3 in the petition is the original plaintiff who instituted the above-mentioned suit, for partition of the ancestral property belonging to late Shri Lalji Vashram. Smt. Champaben who was impleaded as defendant No. 9 in the said suit, was the daughter of deceased Lalji Vashram. She expired on 4. 9. 2004, at London. The petitioner, being the son, heir and legal representative of deceased Champaben, preferred the application at Exh. 22 in the suit, for impleadment as the legal heir and representative of deceased Champaben. The respondents Nos. 1 and 2 in the petition, are the sons of the nephew of deceased Champaben. According to respondents Nos. 1 and 2, Champaben had executed a Will on 21. 11. 2002, at the United Kingdom, in respect of her share in the suit property, bequeathing it to them. The respondents Nos. 1 and 2 also filed an application for impleadment, in the capacity of heirs and legal representatives of deceased Champaben, being Exh. 16. The Trial Court heard both the applications at Exh. 16 and Exh. 22 together, and allowed them both by passing a common order dated 14th August, 2008. The Trial Court observed in the said order that at this stage, it would be difficult to decide whether the petitioner or respondents Nos. 1 and 2 are the legal heirs and representatives of deceased Champaben, therefore, both the applications are allowed, and the question of who is the true legal heir and representative will be decided at the time of final hearing of the suit. Aggrieved by the above-mentioned order passed by the Trial Court, the petitioner has approached this Court, by filing the petition. Mr. Vivek N. Mapara, learned counsel for the petitioner has submitted that, the petitioner is the son and legal representative of deceased Champaben and the Trial Court ought to have decided the question regarding the legal heir and representative of deceased Champaben at the very outset. Undoubtedly the petitioner being the son of the deceased, is her heir and legal representative. By allowing both the applications and keeping the question of heirship open, a manifest error of law has been committed by the Trial Court, while passing the impugned order. It is further submitted that though the petitioner, being the son and legal heir of deceased Champaben has been impleaded, the application at Exh. 16 filed by the Respondents Nos. 1 and 2 ought to have been rejected. In any case, this issue should have been determined by the Trial Court at the time of deciding both the applications, as per the settled position of law. Referring to the provisions of Order-22 Rule-5 of the Code, it is further submitted by the learned counsel for the petitioner that, looking to the said provisions of law, the conflicting claims of the petitioner and Respondents Nos. 1 and 2 should not have been left open by the Trial Court and the impugned order, having been passed without considering the relevant provisions of law, is illegal and erroneous. The learned counsel for the petitioner has further contended that the Will, on the basis of which the respondents Nos. 1 and 2 are claiming to be

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