The main legal point established is that the determination of legal heirs and representatives for substitution in a pending appeal requires evidence and consideration of relevant laws, such as the Mahomedan Law for succession and administration of the deceased's estate.

The petitioners are aggrieved of order dated 08.12.2005 passed in Misc. Appeal No.27 of 2004 by which application for their substitution in place of appellant no.1 in the pending appeal has been rejected.

2. Petitioner no.1 is the applicant no.1 and the petitioner no.2 is applicant no.2 in the application filed in Misc. Appeal No.27 of 2004.

3. Title Suit No.12 of 1999 was instituted by Md. Hafiz Khan for a decree for declaration of his title over the suit property. The suit was decreed ex-parte by judgment dated 29.07.2003 and the decree was signed and sealed on 14.08.2003. Against the ex-parte judgment and decree in Title Suit No.12 of 1999, Misc. Case No.18 of 2003 was filed which was dismissed by an order dated 06.10.2004. Against this order Misc. Appeal No.27 of 2004 has been preferred. During pendency of the appeal, the appellant no.1 died on 24.07.2005. The petitioners claiming themselves legal heirs and representatives of the appellant no.1 filed an application for their substitution in the appeal. This application has been dismissed by the trial Judge by an order dated 08.12.2005 holding that neither Ajmeri Khatoon nor Imtiaz Khan is the legal heir and representative of the deceased- appellant no.1.

4. In the application for substitution the petitioners have pleaded that applicant no.1 namely, Md. Imtiaz Khan is married to step-daughter of the appellant no.1. Md. Imtiaz Khan- applicant no.1 is none other than son of appellant no.2 in Misc. Appeal No.27 of 2004. Claiming herself legal heir and representative of the appellant no.1, Ajmeri Khatoon- applicant no.2, who is wife of the applicant no.1, has claimed her substitution on the ground that she would succeed to the estate of the deceased appellant no.1. Applicant no.1- Md. Imtiaz Khan has laid a claim by virtue of Will dated 02.01.2003. Genuineness of the Will allegedly executed by appellant no.1 in favour of Md. Imtiaz Khan has been disputed by the respondents. The respondents have taken a stand that a daughter may succeed to the estate of her own parents but not the estate of her step-mother. It is pleaded that the husband of appellant no.1 who had purchased properties in the name of his second wife- Sahazadi Khatoon had sold those properties since long and the applicant no.2- Ajmeri Khatoon and her mother Sahazadi Khatoon, after second marriage of Sahazadi Khatoon, have left the village long back.

5. Order 22 CPC lays down the procedure for substitution in case of death, marriage and insolvency of the parties. Order 22 Rule 1 CPC provides that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The trial Judge in the impugned order dated 08.12.2005 has recorded a finding that right to sue inspite of death of appellant no.1 survives. Order 22 Rule 5 CPC provides that where a question whether any person is or is not legal representative of a deceased plaintiff or a deceased defendant arises, such question shall be determined by the court. Under Rule 5 the court has powers to take evidence for deciding such question. This becomes evidently clear from proviso to Rule 5 to Order 22 CPC which refers to determination of such question by the subordinate court and “to return the records together with evidence”, if any, to the appellate court with its findings and reasons therefore.

6. In the present case without affording an opportunity to lead evidence, the trial Judge has commented upon validity of the Will dated 02.01.2003 and held that applicant nos.1 and 2 are not the legal heirs and successors of the deceased- appellant no.1. Contention that estate of appellant no.1 is sufficiently represented through appellant no.2, who is the own sister of appellant no.1, is bereft of substance. Succession and Administration of estate of a deceased Mahomedan takes place in terms of Chapter-V and Chapter-VI of the Mahomedan Law. This issue, thus, becomes an issue on facts for which the parties are required to lead evidence. It is m