THOMA VARKEY Vs. KRISHNAN NAIR NARAYANAN NAIR

JUDGEMENT

(1.) The appellant died on July 19, 1980 leaving his only son, (respondent 3) and his wife (respondent 4) as his legal representatives. C. M. P No. 2313 was filed by counsel for the deceased appellant to record them as his legal representatives in the appeal. Subsequently on June 17, 1981 C. M. P. No 10362 was made by the 4th respondent to transpose her as the additional appellant in place of her husband. In the supporting affidavit she has stated that she was making the application by herself as her son, the 3rd respondent, who was on bad terms with her was unwilling to join her. The first respondent in the appeal opposes the applications contending that CMP No. 2313 is invalid as counsel was incompetent to make the application and that neither application could be allowed as no legal representatives were brought on record in place or the appellant within time and the appeal has abated and the mere presence of the legal representatives on the array would not prevent abatement of the appeal. At the hearing counsel for the first respondent raised yet another objection that C. M. P. No. 10362 was unsustainable as the widow, who is the petitioner is not an heir of the deceased under the Travancore Christian Succession Act and therefore no legal representative

(2.) On C. M. P. No. 2313 I agree with counsel for the first respondent. It was made by counsel who was appearing for the original appellant without any engagement from the legal representatives. On the merits it contained no prayer for adding or transposing any one as the additional appellant either but sought the mere recording of respondents 3 and 4 as the legal representatives of the deceased appellant, which would have left the appeal without any appellant. The petition must therefore fail.

(3.) On CMP No. 10362 the first objection raised by counsel is that respondent 4 who wants to be transposed as the additional appellant, although the appellant's widow, is no heir under the Travancore Christian Succession Act and is therefore no legal representative. Counsel sought support for the contention from Neelakanta Pillai v. Abraham, 1963 KLT 271 . The question that fell to be considered in that case was whether a decree obtained against a Christian widow on a promissory note executed by her husband and the court sale and delivery of his property that followed were binding upon his heirs who were not parties to the decree. The learned Judge (Mathew J.) held following AIR 1955 TC 20 and 1956 KLT 177 that a Christian widow governed by the Travancore Christian Succession Act gets only a life interest in the immovable property left by her husband, terminable at her death or remarriage, that although she could transfer her life interest she could not alienate the property as such and that the widow in that case could not have represented the estate of the deceased. But the learned Judge significantly added: "At best she could only represent her own interest in the property." It is not therefore that the 4th respondent is without any right of representation; she represents her interest, albeit limited, in the estate. Between her and respondent 3, they represent the entire estate. This part of the contention is rejected.