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Thoma Varkey Etc. Vs. Krishnan Nair Narayanan Nair and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. Nos. 2313 and 10362 of 1981 in S.A. No. 1190 of 1976-A
Judge
Reported inAIR1981Ker228
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3 and 11; Travancore Christian Succession Act; Travancore Christian Succession Regulation Act, 1092 - Sections 24
AppellantThoma Varkey Etc.
RespondentKrishnan Nair Narayanan Nair and ors. Etc.
Appellant Advocate Siby Mathew, Adv.
Respondent Advocate K. Ravindranathan Nair, Adv.
Cases ReferredNaranlal v. Shivprasad
Excerpt:
.....by any motion to set aside the abatement. the ultimate position therefore is that, since all the legal representatives of deceased thalo, the original appellant, were on the record, failure on the part of the legal representatives in not having filed a petition in time, cannot be visited with dismissal of the appeal, all that was necessary for them was to move for their substitution in the place of the original appellant, which they have done by this application. ' (page 325) and the position is now well-settled that in appropriate cases, not only can a court allow the application for transposition but the court should in the interests of justice allow persons on the array of the defendants or respondents to be transposed as plaintiffs or appellants. revenue divisional officer, air..........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 opposed the applications contending that c.m.p, 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 of the appellant within time and the appeal has abated and the mere.....
Judgment:
ORDER

G. Balagangadharan Nair, J.

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 opposed the applications contending that C.M.P, 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 of 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 C. M. P. 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 Ker LT 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 partiesto the decree. The learned Judge (Mathew J.) held following AIR 1955 Trav-Co 20 and 1956 Ker LT 177 : (AIR 1956 Trav-Co 263) 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.

4. The petition has been presented 90 days after the death of the appellant and the first respondent contends that the presence of respondents 3 and 4 on the array would not prevent abatement and the petition must fail as it is unaccompanied by any motion to set aside the abatement. In answer counsel for the petitioner relied on Pallikkandi Rohini v. Padmini, ILR (1978) 2 Ker 311, where Khalid J, held:

'The ultimate position therefore is that, since all the legal representatives of deceased Thalo, the original appellant, were on the record, failure on the part of the legal representatives in not having filed a petition in time, cannot be visited with dismissal of the appeal, All that was necessary for them was to move for their substitution in the place of the original appellant, which they have done by this application.' (page 325) and

'The position is now well-settled that in appropriate cases, not only can a Court allow the application for transposition but the Court should in the interests of justice allow persons on the array of the defendants or respondents to be transposed as plaintiffs or appellants.' (page 328),

The learned Judge discussed a number of decisions and among others followed Mahabir Prasad v. Jago Ram, AIR 1971 SC 742. Counsel for the first respondent nevertheless argued that it requires reconsideration and in view of the ardent request I heard both sides at some length to decide whether any reference to a larger Bench was called for. However with respect I agree with the decision ofKhalid J. and do not think that any reference is necessary,

5. In a subsequent decision N. Jayaram Reddi v. Revenue Divisional Officer, AIR 1979 SC 1393, where Mahabir Pra-sad's case, AIR 1971 SC 742, was affirmed and the provisions of Rules 3 and 4 of Order 22 and the principles underlying them were discussed, it was held:

'Another principle in this behalf which has found recognition of the Courts is that if the legal representatives of the deceased party are before the Court in the same action even if in another capacity, failure to bring them on record in a specific legal position would not result in abatement of the action,' (para 30).

'The principle deducible from this decision of the Court is that where one of the legal representatives of the deceased party is before the Court at the time when the proceeding is heard but in another capacity, it is immaterial whether he is described as such or not and even if there are other legal representatives, the cause will not abate.' (para 31)

In paragraphs 40 and 41 the same principle was repeated,

6. In view of this pronouncement there is no need to multiply authorities which discountenance a reconsideration of ILR (1978) 2 Ker 311 but I might wind up with an observation of Beaumont C. J. in Naranlal v. Shivprasad, AIR 1940 Bom 259, that where on the death of a party his legal representatives were already on record, 'the Court could not cause them to be made parties, They were already parties, and a person cannot properly be made a party twice over..... The words of the rules require an applir cation to be made to cause a legal representative of a deceased plaintiff or defendant to be made a party, and as I have already pointed out, a person who is already a party cannot be made a party over again'. As the legal representatives of the appellant were already on the record there was no abatement and the application to describe them as legal representatives although made 90 days after the appellant's death, cannot be barred by limitation,

7. I dismiss C.M.P. No. 2313 of 1981 and allow C.M.P. No. 10362 of 1981.


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