The determination of legal representatives under Order 22 Rule 5 is only for the limited purpose of representation of the estate of the deceased in a pending proceeding and does not confer any right to the property, which is the subject matter of the suit, on the person held to be the legal representative.

Tarun Aggarwala , J.

The facts leading to the filing of the writ petition is, that one Hazi Sheikh Abdul Samad created a private waqf which was registered on 4.8.1931 as 1-A. A second list of the properties was registered on 3.1.1956 as 136. In this waqf, a provision was made that the male son would become the mutawalli and in the absence of a male lineage, the daughter's son would become the mutawalli.

2. In 1964, Hazi Abdul Hai, filed suit No.64 for a declaration that he should be declared as a mutawalli. This suit was partly decreed on 24.5.1982 in respect of property No.1-A and was dismissed in respect of property No.136. Two First Appeals were filed. Zakirullah and others filed First Appeal No.457 of 1982 and Mohammad Ahmad filed First Appeal No.83 of 1982. During the pendency of these appeals, one of the respondents Kaniz Fatima, who was the wife of the plaintiff Hazi Abdul Hai, died on 22.4.1985. A substitution application was filed praying that her husband Hazi Abdul Hai should be substituted. Hazi Abdul Hai, i.e., the plaintiff filed an objection contending that his son Nizamul Hai, who was born out of the wedlock from Kaniz Fatima should also be substituted. Consequently, a dispute arose as to whether Nizamul Hai was the son of the plaintiff or not. The High Court, by an order dated 20.3.1988, remitted the matter to the trial court under Order 22 Rule 5 of the C.P.C. to give a finding on this issue.

3. On account of the increase in the pecuniary jurisdiction, the First Appeal filed before this High Court was transferred to the lower appellate court. In the meanwhile, the plaintiff Hazi Abdul Hai died on 30.4.1999 and, upon his death, a substitution application was filed by Nizamul Hai for his substitution. The lower appellate court, by its order dated 19.1.2000 remitted the issue to the trial court.

4. Pending disposal on this issue, the petitioner, Nizamul Hai, filed an application dated 7.5.1999, under Section 32 (g) of The Waqf Act,1995 before the U.P. Sunni Central Waqf Board, praying that he should be declared as a mutawalli. Initially this application was allowed by the Board by its order dated 20.9.1999, but, subsequently, this order was recalled on a recall application being filed. Thereafter, the Board, by an order dated 4.9.2000, rejected the application of the petitioner holding that the paternity of the petitioner was disputed, which was a subject matter of consideration in the appeal pending before the lower appellate court. By the same order, the Board appointed Ahmad Jamal, respondent No.3, as the mutawalli. Against this order, the petitioner filed Writ Petition No.47155 of 2000, which was dismissed by a judgment dated 26.10.2006, on the ground, that the petitioner has an alternative remedy of filing an appeal under Section 83 of the Waqf Act before the Tribunal. Based on this order of the High Court, the petitioner filed an appeal under Section 83 of the Waqf Act being Appeal No.265 of 2007 before the Tribunal, which is still pending consideration.

5. In the meanwhile, while these proceedings were going on before the Waqf Board, the trial court decided the issue of paternity and, by an order dated 8.3.2001, held that the petitioner was not the son of Kaniz Fatima and Hazi Abdul Hai (the plaintiff). This finding of the trial court was objected by the petitioner before the lower appellate court. The lower appellate court, by an order dated 25.11.2004, set aside the order of the trial court dated 8.3.2001 and held, that on the basis of the evidence that was brought on record the petitioner was the son of Kaniz Fatima and Hazi Abdul Hai. The lower appellate court, by its order dated 25.11.2004, disposed of the substitution applications substituting the petitioner Nizamul Hai and Ahmad Jamal, respondent No.3, as the legal representatives of Kaniz Fatima and Hazi Abdul Hai. The lower appellate court substituted the name of the petitioner on the finding that he is the son of Kaniz Fatima and Hazi Abdul