1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CIVIL REVISION APPLICATION NO. 89 OF 2009 1. SURESH S/O LATARI RAMTEKE AND ANR. R/O DURGAPUR ROAD, CHANDRAPUR 2. ARCHANA W/O SURESH RAMTEKE R/O DURGAPUR ROAD, CHANDRAPUR .. PETITIONER/S VERSUS 1. PANKAJ S/O KAWADU RAMTEKE AND ANR. R/O RTO ANDHERI WEST, MUMBAI 2. SUWARNA W/O DILIP KOCHE R/O CHAMORSHI, DIST GADCHIROLI .. RESPONDENT/S ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri R. R. Shrivastava Adv for petitioner. CORAM: C. L. PANGARKAR J. DATED: 4 th DECEMBER, 2009. Heard counsel for the petitioners. 2. This revision has been filed against the 2 order passed by Civil Judge on an application under Order 22 Rule 3 Civil Procedure Code. Latari Ramteke had instituted a suit against the present petitioner for possession of the suit property and also for possession of movables and damages. During the pendency of the said suit Latari-original plaintiff died. 3. One Pankaj filed an application purporting to be an application under Order 22 Rule 3 Civil Procedure Code alleging that Latari had executed a will in his favour. He therefore claimed that he be substituted as legal representative. 4. The said application was opposed on the ground that Latari himself had no right to bequeath the property as he was not the owner of the property. It was contended that defendant No.1 had become absolute owner by virtue of the registered sale deed. In para 6 of the said reply it was contended that deceased Latari had left behind him 4 sons and 3 daughters but they were not interested in pursuing the suit. The said application was considered by the Court. The Court found that the applicant Pankaj was 3 entitled to be substituted as legal representative since he was claiming to be a legatee under the will. 5. Learned counsel for the petitioner- defendant submits that the application under Order 22 Rule 3 could not have been straightway allowed and the Court was obliged infact to make a summary enquiry as to whether Pankaj was entitled to be substituted in the teeth of the fact that Latari had left behind him 4 sons and 3 daughters. He submitted that the right of Pankaj to prosecute the suit should be decided vis-a-vis the legal heirs of Latari. 6. Learned Judge of the trial Court has found that the fact that legal representatives of deceased Latari do not approach the Court that itself goes to show that they are not interested in prosecuting the suit. Even the reply filed by the defendant goes to show that defendant makes an allegation that those persons are not interested in prosecuting the suit. There was therefore no question of those persons being forced to join this suit. Pankaj has placed on record copy of the will and on that basis he has 4 claimed the right to prosecute the suit further. I think that this production of will along with affidavit is itself enough to allow the plaintiff to prosecute the suit since there is no other person who is claiming in himself any right to prosecute the suit upon death of Latari. 7. The question as to whether the will is or is not valid cannot be gone into at this stage and that would be required to be determined upon tendering of the evidence with regard to the validity of the will. Defendant/petitioner are always at liberty to raise a plea as to the non joining of the heirs of deceased Latari to the suit. If the plaintiff fails to prove the will the trial Court is bound to take into consideration the effect thereof. I, therefore, do not find that trial court committed any error in granting the application. Revision is dismissed in limine. JUDGE svk