D.N. Roy, J.
1. This second appeal by the plaintiff has been referred to a Bench because of certain conflict of decisions of this Court. The suit was one for possession over certain zamindari property in two villages Krishnagarhpur and Bhulaipur. The property originally belonged to one Ram Samujh. On 20th September 1938, Ram Samujh executed a deed of gift in regard to this property in favour of the defendants. Ram Samujh later on instituted asuit for the cancellation of the deed of gift on the ground that it had been obtained by fraud. The suit was decreed by the trial Court. The first appellate Court reversed that decree and dismissed tihe suit. Against that decision Second Appeal No. 79 of 1941 had been preferred in the Chief Court of Oudh at Lucknow. During the pendency of the Second Appeal Ram Samujh died. A question arose as to who should be substituted in his place as representative in order to continue the appeal. Ram Kalap Pande, the present plaintiff came forward as legal representative and he set up a will alleged to have been executed in his favour by Ram Samujh on 18th August 1944, i.e. only 9 days before the death of Ram Samujh. In the proceedings under Order 22, Rule 5 of the Code an order was passed by the Chief Court on 5th April 1946 to the effect that Ram Kalap be substituted for Ram Samujh deceased in the Memorandum of Appeal. The aforesaid appeal was finally decided by the Chief Court on 19th July 1946 and the decision of the first appellate Court was reversed and that of the trial Court restored.
2. Ram Kalap claiming to be the legatee of Ram Samujh under the will aforesaid instituted the suit out of which the present second' appeal has arisen for possession over the property aforesaid on the ground that he is entitled to it under the will and that subseqtient to the death of Ram Samujh he had been dispossessed from the property by the defendants. The due execution and the validity of the will had been assailed in the present suit. It was further contended that the order that was passed in the earlier case in proceedings under Order XXII, Rule 5 of the Code of Civil Procedure had not had the effect of res judicata. Both the courts below upheld the contention of the defendants and dismissed the suit as also the appeal.
3. It has been conceded by learned counsel for the appellant that there was no legal evidence on the present record to prove that the will had been duly executed and attested. Learned counsel has however argued that since in the earlier litigation which culminated in Second Appeal No. 79 of 1941 in the Chief Court of Oudh the present plaintiff was substituted in place of Ram Samujh as his legal representative on the strength of the will, the order passed in those proceedings would have the effect of res judicata, and it was not therefore necessary for the plaintiff, quite apart from that decision or rather independently of that decision, to produce additional evidence in order to prove due execution and attestation of the will. Counsel for the appellant relies upon the case of Raj Bahadur v. Narayan Prasad : AIR1926All439 . In that case a Rench of this Court decided that where a party died during the pendency of a suit and the cause of action survived, the Court was entitled to decide the question of the legal representative of the deceased without referring the parties to a separate suit and the decision was binding upon the party and would operate as res judicata. In that case reference was made to an earlier case of this Court, namely Parsotam Rao v. Janki Bai, ILR 28 All. 109 (B) inwhich a contrary view was taken. The report of that case does not however clearly set out the facts but the Court did appear to have held that a decision in a summary proceeding that certain persons are entitled to be substituted as personal representatives of a deceased party to the suit is not a final determination of the matter and does not constitute a bar on the ground of res judicata. It will, therefore, be seen that the aforesaid two decisions of this court upon the question were conflicting. The question again came to be considered later on by a Bench of this Court in Antu Rai v. Ram Kinkar Rai : AIR1936All412 . In that ease it was held that Order XXII, Rule 5 of the Code of Civil Procedure provides only a summary procedure for appointing a person to be the legal representative of the deceased party for the purpose of prosecuting the suit and the order appointing the legal representative does not operate as a final determination of the representative character of the person appointed, that is to say, it does not operate as res judicata. In that case the decision in Parsotam Rao v. Janki Bai, (B) was followed and the decision in Raj Bahadur v. Narayan Prasad (A) was dissented from.
4. There is a Bench case of the Madras High Court in Samsarivsa Sarvathi Pelekhan Erukkapakkan v. M. K. Pathumma, 20 Ind Cas 950 (D) in which it was held that the question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be regarded as one of the questions arising for the decision of the suit itself. That Bench expressly held that an order such as the order relied upon in the present case does not operate as a bar and does not amount to res judicata. A similar view was also taken by the Judicial Commissioner's Court, Nagpur in the case of Mst. Laxmi v. Ganpat, AIR 1921 Nag 23 (E). In that case it was held that an order rejecting an application to be brought on the record as the legal representative of a deceased appellant is not a decree and does not constitute res judicata. The same view has also been taken by a Bench of the Lahore High Court in the case of Chiragdin v. Dilawar Khan, AIR 1934 Lah 465 (F). In that case it was expressly laid down that where in a proceeding under Order XXII, Rule 5, C. P. C. a person is or is not held to be the legal representative of a deceased party the same question can be re-agitated in a separate suit and is not barred by the rule of res judicata.
5. From the above it will be seen that there is a preponderance of authority, both in this Court and in the other Courts, against the plaintiffs contention. The order passed under Order XXII, Rule 5 of the Code of Civil Procedure involved a summary enquiry as to who should be substituted in place of the deceased in the appeal during the pendency of which he died. A decision that was made under Order XXII Rule 5 of the Code would not, therefore, constitute res Judicata on the question which was expressly raised in the present suit as to whether the will had been properly executed and attested and on which question no evidence whatsoever had been produced on behalf of the plaintiff.
The facts of the Allahabad case in Raj Bahadur v. Narayan Prasad (A), cited above, which appears to favour the present plaintiffs view, were very different from the facts of the present case. However, if it was intended to lay down in the case of Raj Bahadur v. Narayan Prasad (A), that a decision in the summary enquiry under Order XXII, Rule 5, Code of Civil Procedure for ever barred any one again claiming property as the heir of the deceased party in the suit then we respectfully dissent from it. In our judgment the view expressed in the earlier Allahabad case, namely Parsotam Rao v. Janki Bai (B), which was followed later on in Antu Rai v. Ram Kinkar Rai (C), is to be preferred.
The view that an order passed under Order XXII, Rule 5, C. P. C. does not operate as res judicata, is supported by abundant authority in other High Courts, and that being so, we hold that since in the present suit the plaintiff failed to prove the due execution and the attestation of the will set up by him he was not entitled to a decree over the property as legatee of the deceased.
6. It is therefore unnecessary for us to go into the other question as to whether the will covered also the property which was detailed in the present suit. A controversy was raised about that question also and both the courts below held that the will did not cover this property. In view of our decision on the question as to whether the plaintiff could claim under the will, we refrain from expressing our opinion on the second question. In the result therefore we dismiss this appeal with costs to the respondents.