1. This appeal has been heard on the following substantial question of law :

"Whether on the basis of the evidence adduced by attesting witness Ram Prasad (DW 3), can it be said that the propounded of the Will has not proved the due execution of the Will (Ex. D/5), as required under section 63 (c) of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act?"

2. Briefly stated relevant facts are that the disputed land belonged to Bhairosingh, who had three sons namely, Majboot Singh – plaintiff No.1, Hukum Singh -- plaintiff No. 2 and Than Singh -- defendant No.1. Civil suit No. 26A/67 was instituted by Bhairosingh for declaration of title, which ultimately stood decreed from this Court in SA No. 34/82 vide judgment, dt. 12.2.1982 (Ex. P/1). During pendency of this appeal, Bhairosingh died and the name of Than Singh (present defendant/appellant) was brought on record on the strength of an alleged Will dt. 15.10.1979. It is alleged in the plaint that plaintiffs and defendant No.1 being real brothers, inherited the suit land with 1/3rd share each. Declaration to the said effect was sought with mesne profits at the rate of Rs. 1,000/- p.a.

3. Defendant/appellant submitted his written statement refuting thereby the claim of the plaintiffs. It was stated that Bhairosingh executed a Will during his lifetime in respect of suit land on 15.10.1979 in favour of defendant/appellant. Thus, the plaintiffs have no right, title or interest in the suit land. Moreover, name of defendant/appellant alone was substituted in the case of Bhairosingh in SA No.34/82. Plaintiffs being bound by these proceedings are estopped from challenging the Will.

4. After recording the evidence, learned trial Court dismissed the suit on the ground that the defendant/appellant was substituted in S.A No. 34/82 before this Court and was accepted as legal heir of Bhairosingh. In appeal, learned lower appellate Court found that substitution does not amount to acceptance of defendant alone as legal heir. Alleged Will marked as Ex. D/5 has been disbelieved by the learned lower appellate Court. Ultimately, the appeal has been allowed and the suit stood decreed in favour of plaintiffs.

5. Shri S.K. Shlivastava, learned counsel for the appellant and Shri Prakhar Dhengula, learned counsel for plaintiffs/respondents made their respective submission.

6. It is submitted by Shri Shrivastava, learned counsel that the Will was accepted by the plaintiffs, as is apparent from the substitution of defendant/ appellant in place of father in SA No. 34/82.

On perusal, it may be seen that there is no iota on record to establish that the plaintiffs were aware of setting up of the alleged Will in the aforesaid second Appeal. There is no paper on record to show that the plaintiffs were made aware of the substitution of Than Singh in place of his father on the strength of alleged Will.

7. It is true, that SA No. 34/82 was submitted by Bhairosingh, father of the parties to the suit. On his death during pendency of appeal. Than Singh alone submitted an application for being substituted in place of the deceased as the sole representative on the strength of alleged Will dt. 15.10.1979. Application was allowed and Than Singh alone was substituted as legal representative of the deceased father. The term "legal representative" is defined in clause (11) of section 2 of the Code of Criminal Procedure as follows :-

"legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermedelles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Perusal of this definition makes it clear that the term legal representative' is not synonymous to 'legal heir' Order 22 Rule 3 read with Rule 11 of the Code of Civil Procedure empowered this Court in case of death of appellant to substitute for him his legal represent