Impleading legal heirs in proceedings does not equate to proving the validity of a Will, which must be tested on its own merits.

ORAL JUDGMENT

Though these appeals are listed for admission, with consent of both the learned counsel appearing for the parties, the matters are taken up for final disposal.

2. M.F.A.No.1777/2019 and M.F.A.No.2899/2019 are filed challenging the order dated 03.01.2019 passed on I.A.No.17 and I.A.No.1 in R.A.Nos.115/2001 and 122/2001 respectively by the IV Additional District and Sessions Judge, Madhugiri, whereby the applications filed under Order XXII Rule 4 r/w. Order XXII Rule 10 of CPC came to be dismissed.

3. One Ademma W/o. Siddappa has filed suit for declaration and injunction. The said suit is partly decreed. Against that, the plaintiffs have preferred R.A.No.122/2001 and defendants have preferred R.A.No.115/2001. During pendency of the Regular Appeals, the plaintiff Ademma died. Therefore, the appellant herein has filed application under Order XXII HC-KAR Rule 4 read with Order XXII Rule 10 of CPC praying to implead the appellant herein as legal heir of deceased as class - I legal heir. The said applications filed in both the Regular Appeals are dismissed by the First Appellate Court on the reason that in the affidavit filed supporting the applications, the names of the attesting witness stated in the Will have not been mentioned. Therefore, doubted the Will itself and on this reason, dismissed the applications.

Being aggrieved by it, these two instant appeals are filed.

4. Having considered the applications filed and the observations made by the First Appellate Court while dismissing the applications, the reason is that the impleading applicant now has not stated the names of attesting witnesses in the Will. The Will is subject matter in the suit for testing regarding its execution, but the observations made by the Trial Court are that in the affidavit filed in support of the applications, the names of the attesting witnesses have not been mentioned and doubting the Will is amounts to deciding the execution of HC-KAR Will during considering the application for interim measures. This is not correct approach of the First Appellate Court. Whether they are attesting witnesses or not is the question before the First Appellate Court and by the trial to test the due execution of Will in the trial. Now, the impleading applicant desires to come on record in the appeals as only a legatee under the Will.

5. Just because the appellant being the impleading applicant, desires to come on record as a party and as a legatee under the Will, that does not amount to proving of Will; therefore, only for this limited purpose, the First Appellate Court ought to have allowed the applications permitting the appellant to come on record. Therefore, now it is made clear that the appellant, who is impleading applicant upon the applications filed only for the limited purpose, is permitted to come on record in the appeal as a legatee under the Will and to contest the suit.

6. It is made clear that just because the appellant comes on record that does not amount to proving of the HC-KAR Will. The proving of due execution of the Will is subject matter in the Regular Appeal and accordingly is a subject to be considered in the Regular Appeal on its own merits.

7. Therefore, with these observations, the appeals are liable to be allowed and the appellant is permitted to come on record in both the appeals.

8. All the contentions are left open.

9. Just because, the appellant is permitted to come on record as a legatee that cannot be construed that the execution of Will is proved. The First Appellate Court without being influenced on this order of permitting the appellant to come on record as a legatee, this Court considered the Will on its own merits. However, the First Appellate Court is directed to consider the genuinity