OSA/181/2026 of Narain Krishndas Gaba Vs Rajesh Kishindas Gaba (Deceased) 1. Alamaz Rajesh on 8 October 2026

COMMON JUDGMENT

(Judgment of the Court was delivered by N.Sathish Kumar J.) A challenge has been made to the order of the learned single Judge of this Court directing enquiry under Order XXII Rule 5 of the Code of Civil Procedure, 1908 to determine the status as a legal representative of the deceased plaintiff.

2. Following are the brief facts of the case: One Rajesh Kishindas Gaba has originally filed the Testamentary Original Petition inter alia contending that his father had executed a Will dated 18.06.2017 bequeathing the property. The said contention was opposed by his brothers who had filed a caveat. Therefore, the Testamentary Original Petition was converted into Testamentary Original Suit viz.., T.O.S.No.1 of 2024. At this stage, the original plaintiff died. After his death, the first respondent herein claiming to be his wife legally married in a temple and stating that she has several documents to prove the marriage, has filed an application to represent the original plaintiff.

3. The learned single Judge taking into consideration various factors, particularly Section 2(11) of CPC, ordered enquiry limited to Order XII Rule 5 of CPC for the purpose of establishing the status of first respondent herein as the legal representative of the deceased original plaintiff. Challenging the said order, the present appeals have been filed.

4. The main contention of the learned counsel for the appellant in both the appeals is that the very affidavit filed in support of the application by the first respondent contains inconsistent statements. It is the contention of the learned Senior counsel for the appellant that the first respondent herein maintained religious status itself shows that she is not the legally wedded wife of the original plaintiff. Furthermore, information obtained under the Right to

Information Act confirms that the temple in question never issued the alleged marriage certificate. Consequently, the learned Senior Counsel submits that the Court cannot adjudicate upon or determine the legal rights of the parties based on these facts.

5. In the light of the above submission, now the point that arise for consideration in this appeal is, whether the learned single Judge is right in directing enquiry under Order XXII Rule 5 of CPC to determine the status of legal representative.

6. We have considered the submissions and also perused the materials placed before this Court.

7. It is not in dispute that Testamentary Original Petition has been converted into Testamentary Original Suit on filing of caveat by the brothers of the original plaintiff. Thereafter, the plaintiff died and the first respondent herein claiming to be his wife has filed an application to represent her husband and continue the proceedings, which was objected by the respondents. According to the respondents, the impleading petitioner is not the legally wedded wife and she is no way connected to their brother. It is relevant to note that in a suit where a question arises as to whether a person is or is not the legal representative of a deceased party, such question shall be determined by the Court, but the Court cannot be go into the title. The fact remains that it is the specific case of the first respondent herein that she is the legally wedded wife of the original plaintiff and she has also filed certain documents in support of her contention.

8. Therefore, an enquiry is certainly required under Order XXII Rule 5 of the Code of Civil Procedure to determine whether the person seeking to come on record is actually the legal representative of the original plaintiff or not. Such a determination by the Court does not entitle the parties to claim title, as title is a distinct cause of action that must be independently established. What remains to be seen is whether the claim as legal representative is proved in the manner known to law. Such being the position, we are of the view that the enquiry directed by the learned Single Judge under the CPC cannot be found fault. It is for the appellants herein to establish in the enquiry under Order XXII Rule 5 that the first respondent herein is not the legally wedded wife of Rajesh Kishindas Gaba,the original plaintiff. Hence, there is no merit in the appeal, and the same is liable to be dismissed. Accordingly, this appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed. (N.S.K.,J.) (G.K.M.,J.) 08-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No gpa

N.SATHISH KUMAR J. AND GK.MUTHUKUMAAR J. GPA OSA Nos. 181 and 182 of 2026 and CMP Nos. 27995 & 27996 of 2026 08-10-2026