SANKARA MENON Vs. GOURIKUTTY AMMA

JUDGEMENT

(1.) The facts necessary for the disposal of this appeal are the following :

(2.) The court below disposed of all these five applications by a common order dated 25-6-1973. As the parties were agreed that the legal representatives of the 64th respondent were the members of the tarward who were already on the party array none needed to be impleaded, the court held that there was no abatement of his rights in the property. It dismissed I. A. Nos. 202 and 203 of 1973 which concerned the 61st respondent, holding that there was no evidence that the first appellant was ill and that her old age was no ground to set aside the abatement. With respect to the 65th respondent, the court expressed the view that normally it would have been possible to believe that the appellants had no knowledge of his death as he was in England and out of contact with them but the court held against them on the ground that they must have had knowledge of his death in 1969 as an application had been made in O. S. 87 of 1957 with notice to their advocate in that case for impleading his legal representatives. The court discounted the appellants' plea that they had no information from their advocate in O. S. 87 of 1957 on this point, in the view that notice to the advocate is notice to the party. On this reasoning the court dismissed I. A. Nos. 2045, 2046 and 2047 of 1972 in so far as they concerned the rights of the 65th respondent.

(3.) On the basis of these findings the court subsequently heard the appeal and holding that the abatement of the appeal as against the two respondents operated as abatement of the entire appeal the court dismissed it by the judgment dated 7-11-1973, while expressing the view that on the merits it "would have been inclined to hold that the suit itself is not maintainable before the final allotment of shares by the prospective decree in O. S. 87 of 1957." The first defendant died before the decision of the court below and this appeal has been filed by the second defendant.