IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.38 of 2009 VEENA KUMARI @ VEENA SINHA @ MUNNI, Daughter of Late Anirudh Prasad, resident of Mohalla- New Yarpur, Police Station- Gardanibagh, District- Patna …Petitioner/Appellant Versus 1. HIRA LAL son of Late Jugeshwar Nath @ Nath, 2. Amresh Kumar Singh son of Sri Hira Lal 3. Rajesh Kumar, son of Sri Hira Lal 4. Sailesh Kumar, son of Sri Hira Lal All resident of Mohalla- New Yarpur, Police Station- Gardanibagh, District- Patna at present residing at Shashi Kunj, Near Prakritik English School, Adaras Vidya Mandir, Jai Prakash Nagar, P.S.- Jakkanpur, District- Patna …Respondent 1st set / Respondent 1st set 5. Sushree Shova Sinha, Daughter of Late Laxman Prasad Sinha, 6. Sri Sachchida Nand Sinha, Son of Late Laxman Prasad Sinha, 7. Sri Achuta Nand Sinha, Son of Late Laxman Prasad Sinha, 8. Sri Vijay Nand Sinha, Son of Late Laxman Prasad Sinha, All resident of Mohalla- New Yarpur, Police Station- Gardanibagh, District- Patna …Respondent 2nd set/ Respondent 2nd set 9. Sri Suresh Prasad, son of Madan Mohan Lal, resident of ITI Digha, Bank Colony, Police Station- Digha, District- Patna 10. Sri Ramesh Prasad, son of Madan Mohan Lal, resident of Dilkhusha Ice Plant, MEC Quarter, Danapur Cantonment, Police Station- Danapur, District- Patna 11. Sri Satish Prasad, son of Late Madan Mohan Lal, 12. Sri Ravi Kumar, son of Late Madan Mohan Lal, Both residents of Mohalla- Raghunath Tola, Anisabad, Police Station- Gardanibagh, District- Patna …Respondent 3rd set/ Respondent 3rd set ----------- For the appellant : M/s V. Nath, Md. Waliur Rahman & Ranjeet Kumar Singh, Advocates For the respondent no.1 : Mr. S. K. P. Sinha, Advocate For the respondent nos. 5 & 7: Mr. Ajay Kumar Jain, Advocate -------------- 12/ 11.02.2011 Heard the parties. The appellant is aggrieved with the order dated 15.09.2008 passed by the Additional District Judge- IX, Patna, in Title Appeal No.170 of 2006, by which he has disallowed the application filed under Order XXII Rule 3 &5 of the Code of Civil 2 Procedure for being substituted as legal representative of the sole appellant Anirudh Prasad. The background of the case is that one Hira Lal, respondent no.1, filed a suit for partition which was numbered as Title Suit No.420 of 1988 which was decreed in favour of the respondent no.1 As against this decree, two appeals were filed; one by the respondent no.1 and the other by Anirudh Prasad, one of the defendants in the original suit. During the pendency of the appeal, Anirudh Prasad, the sole appellant died whereafter the present appellant filed an application for being substituted as his legal heir on the basis of a “Will” for which a probate case had been filed. The court below rejected the said petition stating that the appellant was claiming to be the daughter of Laxman Prasad Singh as well as praying for being substituted as legal heirs of Anirudh Prasad on the basis of a “Will” which has not been probated. Learned counsel for the appellant submits that it is a pre decided issue that even on the basis of a “Will” which has not been probated a person can be substituted. The establishment of the right of his or her would come at a stage later and for this purpose he has relied upon a decision of Division Bench in the case of Suresh Singh & anr. Vs. Dr. Raja Ram Singh & ors. (1992(2) PLJR 129. On the other hand, counsel for the respondents submits that the appellant is stalling the execution proceeding by filing such a petition and the matter is pending since 1997. Considering the Division Bench‟s decision that even on the basis of unprobated „Will‟ a party can be substituted, this appeal 3 is allowed with direction to the court below to substitute the appellant as heir of Anirudh Prasad and proceed with the appeal in accordance with law and conclude it within a period of nine months from the date of receipt/production of a copy of this order. It is agreed by both the parties that none of them shall take unnecessary adjournments to delay the disposal of the appeal. In the result, the appeal is allowed. JA/- (Anjana Prakash,J.)