JUDGMENT :- The sole question for consideration in the second appeal is whether the estate of deceased Padmanabhan Narayanan was sufficiently and effectively represented in O.S. No. 217 of 1123. A few facts may be stated.

2. The suit properties belonged to the Arayan Vilakathu Valia Veedu, and these properties along with other were outstanding on a mortgages with Padmanabhan Narayanan on a document of 1104. There were two additional charges also in his favour en the same properties. Narayanan executed a sub-mortgage in favour of the 1st defendant, whose heirs are the other defendants, and also put him in possession of suit item 5. Subsequently, Narayanan purchased the properties from the mortgagors, agreeing that he would discharge the sub-mortgage and put the mortgagors in possession of item 5 within a particular time. On the allegation that Narayanan did not comply with the condition, the mortgagors resold the properties to the 1st defendant.

2a. Narayanan filed O.S. No. 40 of 1122 for recovery of item 5 from the 1st defendant; and the 1st defendant filed O.S. No. 217 of 1123 against Narayanan for redemption of the mortgage and settling accounts on the basis of the sale deed he obtained from the mortgagors. Before Narayanan entered appearance in the second suit he died. The 1st defendant at first impleaded Lakshmi Thankamma, the daughter of Narayanan, and subsequently he also impleaded Arumughom Bhargavan, the husband of Lakshmi Thankamma, and Govindan Velappan, who were all aged to be the executors under the will left by Narayanan.

Lakshmi Thankamma was originally declared ex parte; but later on it was set aside. Ultimately, when the suit came up for disposal, neither Lakshmi Thankamma nor Arumughom Bhargavan appeared. Though Govindan Velappan filed a written statement, he also did not appear, nor did as counsel appear at the hearing. Consequently, the suit was decreed in terms of the plaint recording a finding that the matter was settled between the 1st defendant on the one hand and Thankamma and Bhargavan on the other. The present suit has been laid by the members of the tavazhi of Thankamma on the allegation that the decree in O.S. No. 217 of 1123 is not binding on them, as the estate was not sufficiently represented, and that there was fraud and collusion between the 1st defendant and Thankamma and Velappan.

3. The defendants contended, inter alia, that the will executed by Narayanan in 1121 was revoked by another will in 1124, under which the suit properties were bequeathed to Thankamma in her individual right. They also contended that the plaintiffs did not derive any title to the suit properties under the will and therefore the estate of Narayanan was fully and effectively represented by Thankamma in O.S. No. 217 of 1123. The further contention of the defendants was that Bhargavan and Velappan were executors under the will and since they were also impleaded in O.S. No. 217 of 1123, the estate of Narayanan was again effectively represented. They also denied the allegation of fraud and collusion between the 1st defendant and Thankamma and her husband.

4. The trial Court held that the will of 1121, namely Ex. P-7 was not revoked in 1124 and it was therefore the last will and testament left by Narayanan. The trial Court further held that under that will the properties, including the suit properties, devolved on Thankammas tavazhi, so that Thankamma was not entitled to them absolutely. On the question of representation of the estate left by Narayanan, the trial Court held that by the impleading of Thankamma and also of the executors under the will the estate was sufficiently represented. It may be incidentally stated that the trial Court held that Bhargavan and Velappan were executors according to the tenor under the will of Narayanan.

5. In appeal the lower appellate Court agreed with the findings of the trial Court excepting on the question of effective representation of the estate in the earlier suit. It held on that questio

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