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7. Thus the suit instituted by Mahadev Narayan which the lower Court held established, has been, rejected by the lower Appellate Court, not because it held the claim insufficiently established, but merely because the person entered on the record as representing the plaintiff had not proved that there was no nearer heir to the plaintiff. The merits of the deceased plaintiff's claim cannot, it seems to me, depend on whether that plaintiff has been properly represented or not; and I think, therefore, that the Court was mistaken in dismissing the claim on the ground that the representative had not shown that no one else could be allowed to proceed with the suit. The case would, no doubt, have been different if the suit had originally been instituted by Balabai claiming as heir to Mahadev or to Moreshvar. For in those circumstances, Balabai would have based her suit on her right as heir, and would have been bound to establish it. But the suit, as instituted, was not based or dependent on Balabai's heirship, and could not properly be dismissed on her failure to prove her heirship. The question of Balabai's right to represent Mahadev was. I think, a question which could only effect the decision as to the person who should be admitted on the record for the purposes of prosecuting the suit, and was not pertinent for the purpose of deciding whether Mahadev's claim should be decreed or rejected.

8. In the case of the death of a plaintiff, it does not become the duty of the Court in which the suit is pending to decide who is the plaintiff's heir. The procedure is regulated by Sections 865, 366 and 367. If the legal representative applies, the Court must enter his name under Section 365, and proceed with the suit. If no application be made within the time limited by article 175A of Schedule II of the Indian Limitation Act, 1877, there are two courses open, viz., either (a) to pass an order that the suit shall abate, or on defendant applying in this behalf (b) to pass an order for bringing in the legal representative and proceeding with the suit. If the suit abates, Section 371 may thereafter come into operation. But the suit is not liable to dismissal. If any dispute arise as to who is the legal representative, Section 367 applies. And as held in Subbaya v. Saminadayyar (1895) 18 Mad. 496 the phrase "any dispute" is wide enough to cover a dispute on that point between the person claiming to represent the deceased plaintiff and the defendant. It need not be between persons claiming to repesent the deceased plaintiff. And when such a dispute does arise, it is not the province of the Court to decide who is the rightful heir or to reject the suit altogether on failure by the person claiming to be representative to establish affirmatively his right as heir. The Court has again two courses open, viz., either to stay the suit until the fact has been determined in another suit, or to decide at or before the hearing of the suit, not whether the person claiming is the heir, but only as to "who shall be admitted to be such legal representative for the purpose of prosecuting the suit." No decision is required or can be passed in such a case on the right of heirship; nor can the suit be dismissed on the ground that such right of heirship has not been established against all possible comers. A decision on that point would not be binding if passed in such a case, even between the rival claimants, and all that is needed and all that can be done in the suit is to decide who shall proceed with it, without in any way affecting the ultimate liability or right of the persons in favour of whom or against whom the order is passed.

9. It appears to me that a dismissal of the suit solely on the ground of a doubt as to the heirship of a person whose only claim is to proceed with it as the representative of a deceased plaintiff, is an error in law and unsustainable; and that the lower Appellate Court's decree must for that reason be set aside in this appeal.

10. Had the lower Appellate Court's decision been one under Section 367, this Court could not, under Section 588, have interfered therewith. But the lower Appellate Court's decision did not purport to be under Section 367, nor has the lower Appellate Court given to it the operation of a decision under Section 367. It is not as a decision under that section that the decree is liable to be set aside on appeal. The decree is open to objection as one rejecting a suit on a ground which could not justify rejection.

32. Then it is said that the defendants, by raising the issue, "whether the heir-plaintiff is not the legal representative of deceased plaintiff Mahadev Narayan," created such a dispute as is covered by the provisions of Section 367.

33. There would be some inconsistency in treating Bhivrabai's assertion of heirship as a denial of the right of Balabai to be treated as legal representative of Mahadev, and in refusing to treat the issue just quoted as bringing in question Balabai's right of heirship. This issue, as already shown, was treated in both the lower Courts as bringing into issue Balabai's right of heirship, and the decision in both Courts was on that basis, though the lower Appellate Court reframed the issue. Balabai's name had already been substituted on the record for Mahadeb's, and the defendants did not apply to have it struck off, but were content to let the suit proceed with Balabai as substituted plaintiff, and to go to trial on the issues subsequently framed and recorded. If the defendants had instead asked for Balabai's name to be struck off the record, and the Court had refused such application, then there might have been room for contending that such a dispute is covered by Section 367, if that section does not refer merely to rival claiments to be entered as legal representative of a deceased plaintiff. But even then the matter would be only important as to whether there would have been a regular appeal from such refusal or an appeal under Section 588, Clause 18, read with Section 367, rather than an appeal under Section 585, Clause (2), read with Section 32 where a person has once been admitted to the record as legal representative of a deceased plaintiff that person is a party, and any dispute raised inter pertes as to that substituted plaintiff's right of representation (not inheritance) so as to have such substituted plaintiff struck out comes properly under Section 32 and not under Section 367 of the Code.