FAO (RO) Nos.183 & 184 of 2016
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. Somarajan
- Judgment Date
- 2022-08-16
- Court Decision / Holding
- The remand order is set aside. The appeals are allowed. No costs. The parties shall appear before the first appellate court on 30/09/2022 to proceed further in the matter.
- Final Disposition
- Remand order set aside; appeals allowed; No costs.
Parties to the Case
Appellants / Petitioners
- MANOHARAN V
Respondents
- Padmakumari
- Suseela
- Sreedevi
- Premakumari
- Komalam
- Ramani
- Krishnakumari
- Kairalikumari
- Mahadevan
- Ananthan
- Devaki
- Rajan
- Ravi
- Satheedevi
- Visalakshi
- Kaladhar an
Legal Representation & Advocates
Counsels for Petitioners
- • Sajan Varghese K.
- • Liju M.P.
- • Lillu L. Krishnan
Counsels for Respondents
- • Rajesh Sivaramankutty
Case Synopsis & Summary
This judgment arises from two connected first appeals from orders (FAO (RO) Nos.183 & 184 of 2016) filed by Manoharan V. against a preliminary partition decree in OS No.2010 and the subsequent appellate decree in AS 239/2011 and AS 256/2011 before the Palakkad judiciary. The dispute centers on a partition of a property with five items; item 5 is the subject of Ext.B3 Will and Ext.B8, a 1993 gift by the mother. Ext.B8 is treated as the same person as the 6th defendant, which allegedly impacts the necessity to prove the bequeath under Ext.B3. The trial court did not take Ext.B8 into account; the first appellate court reversed and ordered a remand under Order XLI CPC. The High Court, however, finds that the first appellate court exceeded its remit: remand is not warranted to re-open issues already settled and that the legal position on remand is governed by Rule 23, 23A and 24 of Order XLI CPC, as settled in Gopalakrishnan v. Ponnappan and Bhairab Chandra Nandan v. Ranadhir Chandra Dutta. It is held that item 5 should have been excluded from the preliminary decree, and that the production of Ext.B8 did not necessitate remand. The High Court sets aside the remand order, directs the matter back to proceed in the first appellate court, and notes that the appeals are allowed with no costs. The parties are to appear before the appellate court on 30/09/2022 to continue proceedings.
Provisions of Law Cited
Legal Doctrines & Maxims
- Remand powers under Order XLI CPC (Rules 23, 23A, 24)
- Jurisprudential position on remand settled by Gopalakrishnan v. Ponnappan (2021 (5) KHC 548)
- Apex Court, Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988 KHC 883)
Submissions & Arguments
Contentions of Appellants / Petitioners
Manoharan V., the plaintiff/applicant, contends that the preliminary partition decree may be allowed to stand for items 1 to 4, while item 5, tied to Ext.B3 Will and Ext.B8 gift by the mother, should not drive a remand. Ext.B8 is a registered document, and the legatee under Ext.B8 is the same as item 6, reducing the necessity to prove Ext.B3’s bequeath. The trial court’s failure to consider Ext.B8 undermined the decree. The first appellate court’s remand under Order XL I Rule 27 CPC is improper; Rules 23, 23A, 24 govern remand and ensure a cogent disposition on merits, not a piecemeal remand. The appellate court should have decided the issues rather than remanding. The remand causes prejudice and contradicts settled law on remand. The appellant urges setting aside the remand order and finalizing the decree with proper exclusions, while maintaining the original issues for adjudication.
Contentions of Respondents
The respondents, while defending the remand, argued that the remand was necessary to resolve the contested items (notably item 5) in light of Ext.B3 Will and Ext.B8 gift, and to permit production of original documents on remand. They urged adherence to Order XL I Rules 23, 23A, 24, and contended that remand aids a fair adjudication where preliminary decrees include disputed property. They contend that Ext.B8 and Ext.B3 require careful scrutiny of bequeath and gift lines, especially since the legatee’s identity affects several items. They request preservation of remand orders to allow complete evidence and to rectify any misapprehensions about registration and bequest interpretations.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Gopalakrishnan and Another v. Ponnappan and others | 2021 (5) KHC 548 | Positive | Cited as the settled position on remand under Order XLI CPC, which the High Court followed in rejecting the lower court’s remand. |
| Bhairab Chandra Nandan v. Ranadhir Chandra Dutta | 1988 KHC 883 | Positive | Cited as controlling precedent supporting the settled remand jurisprudence and its cautions. |
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