JUDGMENT

Misra and Kaul, JJ. - This application for revision of an order passed by the learned Civil Judge, Fyzabad, on the 28th of August, 1944, arises on the following facts :

A suit was instituted by Jagdamba Prasad Singh, opposite party No, 1 against Sri Bhagwan Singh for possession of a half share in taluja Tigara in Fyzabad district. The property appears to have been claimed by Jagdamba Prasad Singh for himself and his brother Sarda Prasad Singh who was impleaded as defendant No- 2. The suit had reached a stage when evidence for plaintiff was being recorded; but as Sri Bhagwan Singh died on the 5th of April, 1944, Jagdamba Prasad Singh made an application purporting to be under Order 22 rule 4 of the CPC on the 24th of April, 1944, for bringing-Sri Bhagwan" Singh's widow and Mst. Sheel Kumari on record as his legal representatives. It was alleged in this application that Sri Baagwaa Singh died leaving his widow, Thakurain Dhanraji Kunwar and a daughter that Dhanraji Kunwar succeeded to the taluqdari property under the Oudh Estates Act, but so far as the non- taluqdari property was concerned, the widow and daughter being excluded from succession to it, the applicant (Jagdamba Prasad Singh) and his brother Sarda Prasad Singh had inherited it. The application contained a further averment that one Ambika Prasad Singh alias Bansidhar of Tighra claimed to be the son and legal representative of Sri Bhagwan Singh and was supported by his widow Thakurain Dhanraji Kunwar. It was suggested that a notice should be issued to the said Ambika Prasad Singh also and "the question of legal representation" be determined by the Court.' It was, however, clearly stated in the application that Ambika Prasad Singh was not the legitimate son of Sri Bhagwan Singh. Though notice of this application was served upon Ambika Prasad Singh, he did not care to put in an appearance. A fresh notice was at the plaintiff's request issued to Ambka Prasad Singh and the case was fixed for the 25th of May, 1944. Thakurain Dhanraji Kunwar, however, appeared through a Counsel and informed the Court that she could not be the legal representative of Sri Baagwan Singh in presence of his son, Ambika Prasad Singh. The case appears to have been taking up again on the 30th May, 1944. On that date Jagdamba Prasad Singh presented another ;application alleging that a will which Ambika Prasad Singh claimed to have been executed in his. favour by Sri Bhagwan Singh was illegal and invalid. He denied both the execution and the validity of this will. Though Jagdamba Prasad Singh did not admit that Ambika Prasad Singh was the legitimate son of Sri Baagwan Singh, and further repudiated the will alleged to have been executed by Sri Baagwan Singh in favour of Ambika Prasad Singh, he insisted on impleading him as a party to the case because the latter claimed to be the legal heir of Sri Bhagwan Singh, and had put forward a will in respect of the disputed property in his favour.

2. Ambika Prasad Singh appeared through his Counsel after the expiry of 90 days from the date of death of Sri Bhagwan Singh and made his position clear. He claimed to be the legitimate son of Sri Bhagwan Singh and also a devisee of the entire property left by the deceased under the will dated the 10th of January, 1944, and as such his only legal representative. It was further contended on his behalf that inasmuch as the plaintiff had challenged his legitimacy and repudiated the will, and because the rightful legal representative of Sri Bhagwan Singh, deceased, was not brought on the re- cord within 90 days of his death, the suit abated.

3. On these facts it is clear that a question had arisen whether Ambika Prasad Singh or Thakurain Dhanraji Kunwar was the legal representative of the deceased defendant, and under Order 22 rule 5 of the CPC it was the duty of the Court to determine it. The learned Civil Judge, however, was of opinion that under the "peculiar circumstances of the case" the suit could proceed without