( 1 ) THIS second appeal by the plaintiff has been referred to a Bench because of certain conflict of decisions of this Court. The suit was one for possession over certain zamindari property in two villages Krishnagarhpur and Bhulaipur. The property originally belonged to one Ram Samujh. On 20th September 1938, Ram Samujh executed a deed of gift in regard to this property in favour of the defendants. Ram Samujh later on instituted a suit for the cancellation of the deed of gift on the ground that it had been obtained by fraud. The suit was decreed by the trial Court. The first appellate Court reversed that decree and dismissed tihe suit. Against that decision second Appeal No. 79 of 1941 had been preferred in the Chief Court of Oudh at Lucknow. During the pendency of the Second Appeal Ram Samujh died. A question arose as to who should be substituted in his place as representative in order to continue the appeal. Ram Kalap Pande, the present plaintiff came forward as legal representative and he set up a will alleged to have been executed in his favour by Ram Samujh on 18th August 1944,. e. only 9 days before the death of Ram Samujh. In the proceedings under Order 22, Rule 5 of the Code an order was passed by the Chief Court on 5th April 1946 to the effect that Ram Kalap be substituted for Ram samujh deceased in the Memorandum of Appeal. The aforesaid appeal was finally decided by the Chief Court on 19th July 1946 and the decision of the first appellate Court was reversed and that of the trial Court restored.

( 2 ) RAM Kalap claiming to be the legatee of Ram Samujh under the will aforesaid instituted the suit out of which the present second" appeal has arisen for possession over the property aforesaid on the ground that he is entitled to it under the will and that subseqtient to the death of Ram samujh he had been dispossessed from the property by the defendants. The due execution and the validity of the will had been assailed in the present suit. It was further contended that the order that was passed in the earlier case in proceedings under Order XXII, Rule 5 of the Code of civil Procedure had not had the effect of res judicata. Both the courts below upheld the contention of the defendants and dismissed the suit as also the appeal.

( 3 ) IT has been conceded by learned counsel for the appellant that there was no legal evidence on the present record to prove that the will had been duly executed and attested. Learned counsel has however argued that since in the earlier litigation which culminated in Second Appeal No. 79 of 1941 in the Chief Court of Oudh the present plaintiff was substituted in place of Ram Samujh as his legal representative on the strength of the will, the order passed in those proceedings would have the effect of res judicata, and it was not therefore necessary for the plaintiff, quite apart from that decision or rather independently of that decision, to produce additional evidence in order to prove due execution and attestation of the will. Counsel for the appellant relies upon the case of Raj Bahadur v. Narayan Prasad, 24 All LJ 546 : (AIR 1926 All 439) (A ). In that case a Rench of this Court decided that where a party died during the pendency of a suit and the cause of action survived, the Court was entitled to decide the question of the legal representative of the deceased without referring the parties to a separate suit and the decision was binding upon the party and would operate as res judicata. In that case reference was made to an earlier case of this court, namely Parsotam Rao v. Janki Bai, ILR 28 All. 109 (B) in which a contrary view was taken. The report of that case does not however clearly set out the facts but the Court did appear to have held that a decision in a summary proceeding that certain persons are entitled to be substituted as personal representatives of a deceased party to the suit is not a final determination of the matter and does not constitute a bar on the ground of