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11. The petitioner had been claiming by virtue of devolution of Interest by reason of execution of a Will by the deceased in favour of the said Swamy Jatav Panchayat Committee. The Will was alleged to have been executed on 11th November, 1995.

12. Order XXII, Rule 10 of the Code provides as follows :

"10. Procedure in case of assignment before final order in suit.--(1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved."

The above provision provides that in other cases of an assignment, creation or devolution of any interest during the pendency of the suit, a person may be permitted to continue the suit or the suit may be continued against such person on whom interest devolves by reason of assignment, creation or devolution of interest. In order to attract this provision, the first condition that has to be satisfied is that such an assignment, creation or devolution of Interest had taken place during the pendency of the suit. Second condition is that it should be with respect to cases which are not covered under Order XXII, Rules 1, 2, inasmuch Rule 10 begins with the expression "in other cases". Thus such devolution has to be other than death. Evolution of interest by virtue of a Will is a devolution on account of death. Inasmuch as a Will does not become effective so long the executor is alive. The Will comes to life only on the death of the executor. Therefore, the devolution becomes effective on the death and not otherwise. The interest may devolve upon the beneficiary by virtue of a Will but the same is a devolution outside the scope and ambit of Rule 10 of Order XXII of the Code.

Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or Its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiama Dass was elected to be the mohant of the Dera can make no difference when we are dealing with the question whether the interest in the subject-matter of the suit devolved upon him. The subject-matter of the suit was the Interest of Som Dass in the Dera and its properties and it devolved upon Shiama Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Som Dass, Order XXII. Rule 10 will apply, see Ratnam Pillai v. Nataraja Desikar, AIR 1924 Mad 540, the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representative of the predecessor in office. The Court said that where some of the trustee die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order XXII, Rule 10 notwithstanding that the period of limitation for tmpleadlng them had expired."

17. Mr. Porwal had also relied on a decision in the case of State of U. P. v. Sheikh Asghar and others, AIR 1963 All 357. The said decision also docs not help Mr. Porwal in the facts and circumstances of the case. Inasmuch as in the said case, the plaintiff having died heirless, the property was escheated to the Government and the Government sought to enter in the record as plaintiff not as a legal representative but as a person upon whom the interest of the plaintiff devolved under Order XXII. Rule 10 of the Code. Thus, there also the State did not claim any interest as a legal representative. Whereas in the present case, Mr. Ashok Bhaskar had applied for substitution as heir of the deceased, namely, a legal representative. Swamy Jatav Panchayat Committee had also sought to come into the picture as a legal representative by reason of claiming interest through the Will to the property left by the deceased.