1 WP 7017.2010 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7017 OF 2010 1. Jijabai Gahininath Barkade Age : 40 Yrs., Occ. Agril., R/o : Kukadgaon, Tq. Paranda, Dist. Osmanabad. 2. Parasram Shivaji Jadhav Age : 35 Yrs., Occ. Agril., R/o : Kukadgaon, Tq. Paranda, Dist. Osmanabad. .... PETITIONERS V E R S U S 1. Gayabai Bhagwat Gaikwad ( Died ) Through L.Rs. : 1-A. Devibai Nana Bhore Age : 54 Yrs., Occ. Household, R/o : Kukadgaon, Tq. Paranda, Dist. Osmanabad. 1-B. Asrabai Shivaji Jadhav Age : 50 Yrs., Occ. Household, R/o : Kukadgaon, Tq. Paranda, Dist. Osmanabad. 2. Mohan Bhagwat Gaikwad Age : 40 Yrs., Occ. Agril., R/o : Kukadgaon, Tq. Paranda, Dist. Osmanabad. .... RESPONDENTS Mr. M.B.Kolpe, Advocate for the Petitioner. Mr. S.S.Choudhari, Advocate for Resp. No 2. 2 WP 7017.2010 - [ J ] CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 05/07/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. The present respondent no. 2 had filed Suit for declaration, partition and possession against Gayabai Bhagwat Gaikwad. The same was decreed. Gayabai assailed the said Judgment by filing R.C.A. No. 32 of 2004 before the District Court, Osmanabad. During the pendency of said Appeal, Gayabai died and the present respondent nos. 1-A and 1-B were added as legal representatives of deceased Gayabai. Thereafter, the present petitioners filed an application that they may be added as parties as they are the heirs pursuant to the will executed by deceased Gayabai. Further, the competent Court has also granted probate on the basis of said Will. The said application was not objected by respondent no. 1-A and 1-B. Still, the District Court rejected the said application. Aggrieved thereby, the present petition has been filed. 3. Mr. Kolpe, the learned counsel for the petitioners submits that in fact the petitioners should have been arrayed as legal representatives of 3 WP 7017.2010 - [ J ] deceased Gayabai in addition to respondent no. 1-A and 1-B as deceased Gayabai has executed a valid will of which Probate has also been granted by the competent Court. The District Court on wrong premise rejected the application. 4. Mr. S.S. Choudhari, the learned counsel for the respondent no. 2 submits that the present respondent nos. 1-A and 1-B are already representing as legal representatives of deceased Gayabai. The petitioners have nowhere stated as to whether they are to be added as plaintiffs or defendants. As such, the Court was right in rejecting the said application. According to the learned counsel, even the Probate that has been obtained, is without adding the other legal representatives or interested person as party. 5. The present petitioners are claiming that they are the legal representatives on the basis of the Will executed by Gayabai and the Probate has also been issued by the Court. As per Section 2 ( 11 ) of the Code of Civil Procedure [ For short, ‘ the Code ’ ], the legal representative of deceased is the one, who represents the estate of the deceased. On the basis of Will, the petitioner can claim right. In the present dispute, this Court would not be concerned as to whether the Will is genuine or not. The legal 4 WP 7017.2010 - [ J ] representatives are only required to be added for prosecuting the Appeal. The Court would not be deciding the validity of the Will in its appellate jurisdiction. Even under Order XXII Rule 5 of the Code, the enquiry is contemplated and that enquiry is also prima facie in nature and any finding in the said enquiry does not operate as res-judicata. 6. In view of the above, there is no impediment to add the present petitioners as legal representatives of the deceased appellant Gayabai for the purpose of prosecuting the Appeal. 7. In the result, the Writ Petition is allowed. The petitioners shall be added as legal representatives of the deceased appellant Gayabai along with other legal representatives already on record. The same is only for the purpose of prosecuting the Appeal and would not mean that the rights are adjudicated. 8. Rule is accordingly made absolute . No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 7017.20110 - [ J ] 5 WP 7017.2010 - [ J ]