The main legal point established in the judgment is the determination of legal representatives and their entitlement to be substituted in the first appeal, based on the provisions of the Code of Civil Procedure, 1908 and the Hindu Succession Act, 1956.

ORDER

1. This order would decide the issue as to whether after death of sole appellant-plaintiff Shakuntla Mathur during pendency of first appeal, any of her legal representatives can be allowed to be substituted in her place as appellants to continue the proceedings of first appeal?

2. This is not in dispute that appellant- Shakuntla Mathur was unmarried and her parents had already been passed away when she died on 1.2.2020. Her two nephews namely Shaleen Mathur and Naleen Mathur sons of Rajendra Swaroop Mathur, have moved an application (1/2020) on 14.2.2020 seeking their substitution as legal representatives of deceased appellant, on the basis of her will dated 28.1.2003. On the other hand her natural brothers, one Rajendra Swaroop Mathur has moved application (3/2021) on 19.4.2021, another brother Ashok Mathur has moved applications (1/2021 and 2/2021) on 8.2.2021, Rakesh & Anil sons of deceased brother Y.S. Mathur have moved separate applications (1/2022 and 2/2022) on 9.2.2022 and (3/2022 and 4/2022) on 15.2.2022, One Mr. Alok son of deceased sister Shardha Mathur has moved applications (6/2022 and 7/2022) seeking their substitution as legal representatives of deceased appellant in the present appeal. Thus, application (1/2022) is based on testamentary succession (on the basis of will executed by deceased appellant) and all other applications are based on non- testamentary succession, filed by natural successor.

3. In order to decide the issue, it is necessary to look into the nature of first appeal arises against the judgment and decree dated 20.7.2018 whereby and whereunder the civil suit for declaration and permanent injunction filed by appellant-plaintiff was dismissed on merits.

4. The property in question is house No.A-13, Triveni Nagar, Jaipur constructed over a plot measuring 216.66 square yards. This is not in dispute that the said house property was of self acquired property of deceased appellant she was the sole owner.

5. It appears from the record that deceased appellant instituted a civil suit on 23.8.2006 alleging inter alia that she mortgaged her house with United Commercial Bank in order to secure a loan taken by her younger brother Rajendra Swaroop Mathur and his wife Ms. Asha Mathur. Since the loan was not cleared, therefore, bank initiated proceedings under SARFAESI Act, 2002 and she received bank notice on 31.12.2005 that if the due loan amount of Rs.7,72,907/- is not paid by 21.1.2006, the possession of the house will be taken by the bank. She further stated in the plaint that younger sister, Smt. Beena Mathur who is respondent- defendant herein approached her and gave an offer to clear the outstanding loan amount of bank subject to condition of mortgaging the house in her favour. Plaintiff stated that she accepted the offer and thereafter, her younger sister- defendant cleared the bank loan and got redeemed the mortgaged property but instead of getting the mortgage deed she got executed sale deed in her favour for sale consideration of Rs.8 lacs. Plaintiff has stated that actual market value of her house property is about 30 lacs and her younger sister has played fraud and by applying tactics has got executed the sale deed registered in her favour, in the garb of getting the mortgage deed registered. After having knowledge, thereafter, deceased appellant-plaintiff challenged the sale deed of defendant dated 20.1.2006 by filing the present suit immediately on 23.8.2006 with a prayer to cancel the sale deed and to declare the same as illegal, null and void and for consequential decree for permanent injunction to protect her possession over the property in question.

6. It is relevant and worthy to take notice that in the plaint itself, deceased appellant-plaintiff has pleaded that her younger brother Rajendra Swaroop Mathur was financially weak and therefore, she maintained his family as well as bored all expenses of higher education for his both sons namely Shaleen Mathur and Naleen Mathur. It is speci