# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943**
**FAO (RO) NO. 3 OF 2020**
**AGAINST THE JUDGMENT AND DECREE DATED 16.10.2019 IN A.S.NO.91/2016 OF THE ADDL. DISTRICT COURT-VI, KOLLAM**
**AGAINST THE JUDGMENT AND DECREE DATED IN OS 642/2011 OF PRINCIPAL**
## **MUNSIFF COURT, KOLLAM**
## **APPELLANT/RESPONDENT/DEFENDANT:**
**CHERUPUSHPAM AGED 66 YEARS**
**D/O. PATHROS FERNANDEZ, , ASWATHY BHAVAN, KUMBALAM, MULAVANA VILLAGE, PIN 691 503 KOLLAM TALUK, KOLLAM DISTRICT**
**BY ADVS. JACOB P.ALEX SRI.JOSEPH P.ALEX SHRI.MANU SANKAR P.**
## **RESPONDENTS/APPELLANTS/ADDL.PLAINTIFFS 2 TO 4:**
- **1 LEELAMONY AGED 60 YEARS**
**W/O. LATE RAJU, POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE (FORMERLY MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN 691 503**
- **2 MANU M RAJU, AGED 24 YEARS**
- **S/O. LATE RAJU,POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE (FORMERLY MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN 691 503**
- **3 MUNNA M RAJU, AGED 21 YEARS**
- **S/O. LATE RAJU, POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE (FORMERLY MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN 691 503**
## **BY ADV SRI.SUNNY ZACHARIAH**
**THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 28.09.2021, ALONG WITH CO.4/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
FAO(RO) NO.3/2020 & CO.No.4/2020
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA,**
## **1943**
## **CO NO. 4 OF 2020**
**AGAINST THE JUDGMENT AND DECREE DATED 16.10.2019 IN A.S.NO.91/2016 OF THE ADDL. DISTRICT COURT-VI, KOLLAM**
**AGAINST THE JUDGMENT AND DECREE DATED IN OS 642/2011 OF PRINCIPAL MUNSIFF COURT, KOLLAM**
**CROSS OBJECTOR 1 TO 3/RESPONDENTS 1 TO 3/APPELLANTS 1 TO 3:**
## **1 LEELAMONY AGED 60 YEARS**
**W/O. LATE RAJU, POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE,(FORMERLY MULAVAVNA VILLAGE), KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 503**
- **2 MANU M. RAJU, AGED 23 YEARS**
**S/O. LATE RAJU, POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE (FORMERLY MULAVAVNA VILLAGE), KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 503**
- **3 MUNNA M. RAJU, AGED 21 YEARS**
**S/O. LATE RAJU, POURNAMY, WARD VII, HOUSE NO. 208, KUMBALAM, PERAYAM VILLAGE (FORMERLY MULAVAVNA VILLAGE), KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 503**
## **BY ADV SUNNY ZACHARIAH**
FAO(RO) NO.3/2020 & CO.No.4/2020
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## **RESPONDENT/APPELLANT/RESPONDENT:**
**CHERUPUSHPAM AGED 65 YEARS D/O. PATROSE FERNANDEZ, ASWATHY BHAVAN, KUMBALAM, PERAYAM VILLAGE, (FORMERLY MULAVAVNA VILLAGE), KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 503.**
## **BY ADV JACOB P.ALEX**
**THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR HEARING ON 28.09.2021, ALONG WITH FAO (RO).3/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
FAO(RO) NO.3/2020 & CO.No.4/2020
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## **JUDGMENT**
The appellant/defendant came up in an appeal against the order of remand by the First Appellate Court in a suit for declaring a sale deed of the year 2001 as _ab initio_ void or in the alternative to set aside the same. The suit was filed in the year 2011 by the person who had executed the sale deed of the year 2001. The trial court dismissed the suit on various grounds including the question of bar of limitation. The First Appellate Court remanded the matter back to the trial court for fresh consideration without appreciating the question of limitation in its correct perspective and the same would constitute a substantial question of law, hence the appeal.
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FAO(RO) NO.3/2020 & CO.No.4/2020
2. The suit to declare the document as _ab initio_ void or in the alternative to set aside the same was filed after the elapse of more than ten years from the date of its execution. It is submitted that the document was obtained under a vitiating circumstances and the executant/ plaintiff was in a drunken stage, at the time when it was executed. It was obtained by playing fraud upon the plaintiff. As such, the suit was filed for declaring the said document _ab initio_ void or to set aside the same. I am at a loss to understand under what provision the document would stand as _ab initio_ void. It is a pakka sale deed executed by the party, the plaintiff in the year 2001, and the time available for challenging its execution on any vitiating
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FAO(RO) NO.3/2020 & CO.No.4/2020
circumstance is only three years and within that time no suit was brought up.
3. _Inter alia_ , the counsel for the petitioner/plaintiff submitted that since fraud is employed and alleged, there cannot be any limitation. But it is an admitted fact that, what is sought to be set aside is the sale deed executed in the year 2001 by the plaintiff. Whether he was intoxicated or any fraud was played on him may be a vitiating ground so as to set aside the document. But that will not extend the period of limitation available, unless there is active concealment of fact of execution of documents from the notice of the plaintiff and no such case was established or even pleaded. “When a person is said to have notice” as defined in Section 3 of the
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Transfer of Property Act looms large at this juncture. On the other hand, it is an admitted case that, it is the plaintiff who had executed the sale deed in the year 2001. As such, the suit would stand hopelessly barred by limitation. That issue was not properly considered by the First Appellate Court. Overlooking all settled principles, the First Appellate Court ordered a remand of the matter, even though, materials are with the First Appellate Court in order to decide the question of limitation. Hence the order is not in compliance of requirement under Rule 24 Order XLI C.P.C. The legal position has been laid down by this Court in FAO (RO).No.14/2021 dated 24.09.2021 (given for reporting), wherein it was held that:
FAO(RO) NO.3/2020 & CO.No.4/2020
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_" 4. A conjoint reading of Rule 23, 23A and 24 of Order XLI C.P.C. would make it clear that non- consideration, failure or mis-appreciation of an issue may not be a ground to order remand of the case, when the evidence on record is sufficient for determination of the issue by the appellate court. It is within the permissibility of the first appellate court to take up and consider every issue in dispute and to determine the same when evidence on record is sufficient for its adjudication, irrespective of whether it was taken up or answered by the trial court. In short, a remand of the case to the trial court is not permissible, when the evidence on record covers the material for adjudication of every issues involved in the suit. It is also within the jurisdiction of the appellate court to settle and decide any issue, which is_
FAO(RO) NO.3/2020 & CO.No.4/2020
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_essential for fair determination of the dispute involved, when evidence on record is sufficient. The expression "evidence upon the record is sufficient" incorporated in Rule 24 shall not be understood to cover any failure upon the party to tender any evidence, insufficiency of evidence or any laches thereof so as to bring the matter within the purview of that Rule, when the party is aware of the dispute involved and the nature of issues to be adjudged. Hence, a remand of the case, either to fill up the lacuna in the evidence or in the case set up or failure to adduce evidence cannot be a ground of remand, when the dispute was within the knowledge of the parties and proceeded or defended with the suit with that knowledge. But, when there is denial of sufficient opportunity to adduce evidence resulting in grave injustice to_
FAO(RO) NO.3/2020 & CO.No.4/2020
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_the party, it is permissible to order remand of the case. “_
4. Yet another argument was advanced by the plaintiff, which prima facie appears to be mutually destructive that, it was executed only as a security in connection with a loan transaction, that it would show the knowledge of execution of document on the part of the executant, who is the plaintiff. Gross negligence to conduct a proper enquiry as to the the nature of document executed would also amount to notice by virtue of Section 3 of the Transfer of Property Act and the definition clause “when a person is said to have notice”. Insofar as a person who had executed the document, his knowledge would start from the moment of its execution. The above said question was already dealt by
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this Court in **Ramachandran Nair v. Raghavan Nair (2019(3) KLT 831)**
5. Yet another argument was also advanced that the plaintiff is still holding possession over the property and delivery of possession was not effected in furtherance of the sale of the year 2001 and took reliance from Section 54 of the Transfer of Property Act. There is no such mandate under Section 54 of the Transfer of Property Act, in order to effect a valid sale of immovable property having the value of more than Rs.100. As such, it has no relevance at all. The suit is hopelessly barred by limitation. That question was not properly considered by the First Appellate Court. Since the appeal is against the remand of the matter, I am of the view that an
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opportunity can be given to the First Appellate Court to decide the issue. Hence, the order of remand is hereby set aside. The matter is remanded back to the First Appellate Court for adjudication in accordance with the law in force. The parties shall appear before the First Appellate Court on 12.10.2021.
The appeal is allowed accordingly. The Cross objection hence will stand dismissed. No costs.
Sd/-
## **P.SOMARAJAN**
**JUDGE**
SPV
