High Court of KeralaSingle JudgeRemand order set aside; appeals allowed; No costs.

FAO (RO) Nos.183 & 184 of 2016

Case / Petition Number: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

Order XLI CPC Rules 23, 23A, 24

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 NameCitationTreatmentExplanation
Gopalakrishnan and Another v. Ponnappan and others2021 (5) KHC 548PositiveCited 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 Dutta1988 KHC 883PositiveCited as controlling precedent supporting the settled remand jurisprudence and its cautions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 16[th] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 FAO (RO) NO. 183 OF 2016 AGAINST THE JUDGMENT & DECREE DATED 30.06.2011 IN OS No.207/2010 OF PRINCIPAL MUNSIFF COURT, PALAKKAD JUDGMENT DATED 31.03.2016 IN AS 239/2011 OF ADDITIONAL DISTRICT COURT-V, PALAKKAD ## APPELLANT/RESPONDENT No.1/PLAINTIFF: MANOHARAN V, AGED 54 YEARS, S/o VELAYUDHAN, CHERNGOL HOUSE, ERUTHIYAMPATHY POST, KOZHINJAMPARA VIA, CHITTUR TALUK, PALAKKAD DISTRICT BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SMT.LILLU L. KRISHNAN ## RESPONDENTS/APPELLANT & RESPONDENTS No.2 TO 16/DEFENDANTS: - 1 PADMAKUMARI, W/o BALAKRISHNAN, AGED 58, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSOM AND POST, PALAKKAD TALUK – 678 506. - 2 SUSEELA, W/o KESAVAN, AGED 71, EZHTHASSAN HOUSE, PUTHUR AMSOM & DESOM, PALAKKAD-678001 - 3 SREEDEVI, W/o BHASKARAN, AGED 66, PUTHANPURA, KONGAD AMSOM & POST, PALAKKAD TALUK – 678 509 - 4 PREMAKUMARI, W/o VASUDEVAN, AGED 62, CHITTILAMCHERRY, MELARCODE POST, ALATHUR TALUK, PALAKKAD DISTRICT - 5 KOMALAM, W/o MOHANAN, AGED 64, NORTH KATTUR, TRICHI, TAMILNADU - 620019. - 6 RAMANI, W/o SURENDRAN, AGED 60, VAISHNAVAM, CO-OP. COLLEGE ROAD, NEAR NEHRU THEATER, CHITTUR THARAKKALAM, CHITTUR POST & TALUK, PALAKKAD DISTRICT – 678 101 2 FAO (RO) Nos.183 & 184 of 2016 |7|KRISHNAKUMARI, W/o BHARATHRAJAN, AGED 59,| |---|---| ||12/14 B.K.J. LAY OUT, MEENAKSHI AMMANKOVIL STREET,| ||SULUR, COIMBATORE DISTRICT, TAMILNADU - 647204| |8|KAIRALIKUMARI, W/o KUTTAPPAN, AGED 56, PLOT NO.644,| ||SELVAN NAGAR, 3rdMAIN ROAD, PONNIYAMMAN MEDU,| ||CHENNAI, TAMILNADU - 600001.| |9|MAHADEVAN, S/o VELAYUDHAN, AGED 52, TEACHER,| ||RAGHAVAPURAM, ATHIKKODE, CHITTUR POST & TALUK,| ||PALAKKAD DISTRICT – 678 101| |10|ANANTHAN, S/o VELAYUDHAN, CHERUNGOL HOUSE,| ||ERUTHIYAMPATHY POST, KOZHINJAMPARA VIA,| ||CHITTUR TALUK, PALAKKAD DISTRICT – 678 101| |11|DEVAKI, W/o MUTHU, AGED ABOUT 75,| ||PALLIKKANDATH HOUSE, KANDUMTHURUTHY,| ||KINASSERY AMSOM & POST, PALAKKAD TALUK – 678 506| |12|RAJAN, S/o MUTHU, AGED 60, PALLIKKANDATH HOUSE,| ||KADUMTHURUTHY, KINASSERY AMSON & POST,| ||PALAKKAD TALUK – 678 506| |13|RAVI, S/o MUTHU, AGED 55, PALLIKKANDATH HOUSE,| ||KADUMTHURUTHY, KINASSERY AMSOM & POST,| ||PALAKKAD TALUK – 678 506| |14|SATHEEDEVI, W/o BALAKRISHNAN, AGED 61,| ||PALLIKKANDATH HOUSE, KADUMTHURUTHY,| ||KINASSERY AMSOM & POST, PALAKKAD TALUK – 678 506| |15|VISALAKSHI, W/o UNNIKITTA, AGED 66,| ||RESIDING AT KADUTHURUTHY MANNATH, KINASSERY AMSON & POST,| ||PALAKKAD TALUK – 678 506| |16|KALADHARAN, S/o UNNIKITTA, AGED 46,| ||PALLIKKANDATH HOUSE, KADUMTHURUTHY,| ||KINASSERY AMSON & POST, PALAKKAD TALUK – 678 506| THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 16.08.2022, ALONG WITH FAO (RO).184/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.183 & 184 of 2016 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 16[th] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 FAO (RO) NO. 184 OF 2016 AGAINST THE JUDGMENT & DECREE DATED 30.06.2011 IN OS 207/2010 OF PRINCIPAL MUNSIFF COURT, PALAKKAD JUDGMENT DATED 31.03.2016 IN AS 256/2011 OF ADDITIONAL DISTRICT COURT-V, PALAKKAD ## APPELLANT/RESPONDENT No.1/PLAINTIFF: MANOHARAN.V, AGED 54 YEARS, S/o VELAYUDHAN, CHERNGOL HOUSE, ERUTHIYAMPATHY POST, KOZHINJAMPARA VIA, CHITTUR TALUK, PALAKKAD DISTRICT BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SMT.LILLU L. KRISHNAN ## RESPONDENTS/APPELLANTS & RESPONDENTS No.2 TO 14/DEFENDANTS: 1 SREEDEVI, W/o BHASKARAN, AGED 66, PUTHANPURA, KONGAD AMSON & POST, PALAKKAD TALUK - 678505 2 PREMAKUMARI, W/o VASUDEVAN, AGED 62, CHITTILAMCHERRY, MELARCODE POST, ALTHUR TALUK, PALAKKAD DISTRICT -678509 3 RAMANI, W/o SURENDRAN, AGED 60, VAISHNAVAM, CO-OP.COLLEGE ROAD, NEAR NEHRU THEATER, CHITTUR THARAKKALAM, CHITTUR POST & TALUK, PALAKKAD DISTRICT - 678101 4 SUSEELA, W/o KESAVAN, AGED 71, EZHTHASSAN HOUSE, PUTHUR AMSOM & DESOM, PALAKKAD 678001 5 KOMALAM, W/o MOHANAN, AGED 64, NORTH KATTUR, TRICHI, TAMILNADU - 620014 FAO (RO) Nos.183 & 184 of 2016 4 - 6 PADMAKUMARI, W/o BALAKRISHNAN, AGED 58, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSOM AND POST, PALAKKAD TALUK- 678508 - 7 KRISHNAKUMARI, W/o BHARATHRAJAN, AGED 59, 12/14 B.K.J. LAY OUT, MEENAKSHI AMMANKOVIL STREET, SULUR, COIMBATORE DISTRICT, TAMILNADU – 642 205. - 8 KAIRALIKUMARI, W/o KUTTAPPAN, AGED 56, PLOT NO.644, SELVAN NAGAR, 3rd MAIN ROAD, PONNIYAMMAN MEDU, CHENNAI, TAMILNADU – 600 001 - 9 MAHADEVAN, S/o VELAYUDHAN, AGED 52, TEACHER, RAGHAVAPURAM, ATHIKKODE, CHITTUR POST & TALUK, PALAKKAD DISTRICT – 678 507 - 10 ANANTHAN, S/o VELAYUDHAN, CHERUNGOL HOUSE, ERUTHIYAMPATHY POST, KOZHINJAMPARA VIA, CHITTUR TALUK, PALAKKAD DISTRICT – 678 578 - 11 DEVAKI, W/o MUTHU, AGED ABOUT 75, PALLIKKANDATH HOUSE, KANDUMTHURUTHY, KINASSERY AMSOM & POST, PALAKKAD TALUK – 678 506 - 12 RAJAN, S/o MUTHU, AGED 60, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSON & POST, PALAKKAD TALUK – 678 506 - 13 RAVI, S/o MUTHU, AGED 55, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSOM & POST, PALAKKAD TALUK – 678 506 - 14 SATHEEDEVI, W/o BALKRISHNAN, AGED 61, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSOM & POST, PALAKKAD TALUK – 678 506 - 15 VISALAKSHI, W/o UNNIKITTA, AGED 66, RESIDING AT KADUTHURUTHY MANNATH, KINASSERY AMSON & POST, PALAKKAD TALUK – 678 506 - 16 KALADHARAN, S/o UNNIKITTA, AGED 46, PALLIKKANDATH HOUSE, KADUMTHURUTHY, KINASSERY AMSON & POST, PALAKKAD TALUK – 678 506 FAO (RO) Nos.183 & 184 of 2016 5 R6 BY ADV SRI.RAJESH SIVARAMANKUTTY THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 16.08.2022, ALONG WITH FAO (RO).183/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.183 & 184 of 2016 6 ## **JUDGMENT** The jurisdiction of the first appellate court to order remand of the matter after setting aside the impugned decree and judgment is governed by Rule 23, 23A and 24 of Order XLI C.P.C. The legal position has been very much settled by this Court in **Gopalakrishnan and Another v. Ponnappan and others [2021 (5) KHC 548]** followed by the decision of the Apex Court in **Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988 KHC 883).** But in utter violation of the legal position settled as above, the first appellate court has ordered remand of the matter and the decree and judgment of the trial court was set aside for that purpose. It is a case wherein a preliminary decree for partition was passed with respect to item No.1 to 5 of the plaint schedule property. There is no dispute with respect to item No.1 to 4. The 5[th] item is the subject of Ext.B3 Will and a subsequent gift of the year 1993, Ext.B8 executed by the mother. It is her self acquired property. Since the property was subsequently given under gift of the FAO (RO) Nos.183 & 184 of 2016 7 year 1993, Ext.B8, there is no necessity to prove the bequeath under Ext.B3 Will as the legatee under that document and Ext.B8 is one and the same person, the 6[th] defendant. The trial court did not act upon Ext.B8 presumably on the reason that the original of the document was not produced. In fact, it is not at all necessary to prove the original of that document when it is a registered one and in the absence of a challenge by the person, who purported to have executed the same, the mother. The first appellate court has also went wrong in appreciating the said fact and ordered a reverse driving on receipt of an application under Order XLI Rule 27 C.P.C. and along with that application, the original of the said document was produced. In fact, instead of attending all issues based on the legal position applicable, the first appellate court adopted an easy going method by ordering remand. This kind of practice is highly deprecated. The trial court ought to have excluded item No.5 property while granting a preliminary decree. The first appellate court also went wrong in considering the said question in proper perspective. Hence, the order of remand will stand set FAO (RO) Nos.183 & 184 of 2016 8 aside. The parties shall appear before the first appellate court on 30/09/2022 to proceed further in the matter. Both the appeals are allowed accordingly. No costs. **Sd/-** **P.SOMARAJAN JUDGE** DMR/-