ORDER :- Sobha Ram and another had filed an appeal against the judgment and decree, dated 24-10-1969, passed by the District Judge, Sirmur at Nahan, dismissing the appeal of Sobha Ram against the judgment and decree of the Senior Sub Judge, Nahan, decreeing the suit of Bahadur Singh for possession of the suit land through pre-emption.

2. Bahadur Singh plaintiff-respondent died during the pendency of this second appeal and according to the appellants he had no legal representative excepting Chetu respondent No. 2, vendor, and as such the appeal must now be accepted as the suit had become infructuous, inasmuch as the appeal is also in continuation of the suit and the suit be dismissed.

3. Sunder Singh son of Chuhar Singh filed a reply to this application opposing the same on the ground that the deceased had transferred through a registered gift deed, dated 14-8-1969 his right, title and interest in the land measuring 12 bighas 10 biswas including the land in dispute in the appeal along with share in the shamilat situate in village Chavahan in his favour and he had been in peaceful possession thereof ever since. The deceased had also previously donated the rest of his land measuring 9 bighas 19 biswas in his favour by a registered gift deed, dated 21-12-1953 and that he was his nearest surviving collateral next to Chetu respondent and that in law he was the legal representative of Bahadur Singh deceased for the purposes of the present appeal being a transferee of the estate of the deceased including the entire land which is the subject-matter of the appeal. It was also contended that the suit had not become infructuous. The suit was decreed in favour of Bahadur Singh deceased who after obtaining title and possession of the land in suit gifted the land by means of a registered deed, dated 14-8-1969.

4. A rejoinder had been filed by the appellant-petitioner, wherein it was contended that the appellant had no knowledge if any gift had been effected by the deceased respondent in favour of Sunder Singh. In case Sunder Singh considers himself to be a transferee or assignee from Bahadur Singh, the only course open for him was to apply under Order 22, Rule 10 of the Civil Procedure Code. He had no locus standi to contest the application submitted by the appellants. Sunder Singh does not fall within the definition of a legal representative of the deceased. Bahadur Singh deceased had no right or interest in the property in suit which are sub judice and as such the transfer effected by him is void and inoperative. In the presence of Chetu respondent, Sunder Singh cannot claim any right. Sunder Singh cannot claim to be a legal representative of Bahadur Singh. No right, title or interest has vested in Sunder Singh as he is not the legal representative of the deceased.

5. The only question in this application is whether Sunder Singh is the legal representative of the deceased, if not, what is the effect ?

6. The learned counsel for the appellant has on the basis of a number of authorities tried to show the distinction between Order 22, Rule 3 and Order 22, Rule 10 of the Civil Procedure Code. According to him. Sunder Singh is not the legal representative as defined under Section 2 (11) of the Civil Procedure Code because the estate of the deceased has not devolved on him by inheritance after the death of Bahadur Sinsh, rather he is a transferee of the property and that transfer had been effected by Bahadur Singh during his life time. Therefore, in view of this he could not be said to be a legal representative and his case clearly falls under the provisions of Order 22, Rule 10, Civil P. C. and for that matter he had to make an application to be impleaded as a party and that, way the appellant had his right to contest that application so made by Sunder Singh, But he could not avail of the provisions of Order 22, Rule 3, Civil P. C. which applies only in case of the legal representative who is to be brought on the record on the death of a pa