Appellant challenges the First Appellate Court remanding a succession case without merits under Section 90-A of the Indian Succession Act. Appeal admitted; notice issued to respondents.
Notice issued to respondents to file their arguments at an early date.
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Court No. - 21
Case :- FIRST APPEAL FROM ORDER No. - 141 of 2024
Appellant :- Siyaram Respondent :- Madhuri Devi And Others Counsel for Appellant :- Rashmi Pandey
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the appellant.
The instant appeal has been preferred under Order 43, Rule 1(u) CPC assailing the judgment and decree passed by the District Appellate Court, whereby the first appeal preferred by the plaintiffs-respondents has been allowed and the matter has been remanded to the trial Court for decision a fresh by means of its judgment and decree dated 02.02.2024.
The submission of the learned counsel for the appellant is that the plaintiffs had instituted a suit claiming title on the basis of a Will. The suit was dismissed by the trial Court noticing that the Will was not proved as required in terms of Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act.
The trial Court also noticed that the plaintiffs were not even in possession of the disputed property. The plaintiffs being aggrieved preferred a regular civil appeal before the appellate Court, however, the District Appellate Court without considering the evidence which was available on record has set aside the judgment and remanded the matter solely on the ground that the plaintiffs would be extended the benefit of Section 90-A of the Indian Succession Act.
The submission is that being the Court of first appeal, the Court had extensive power as exercised by the trial Court. In case, the District Appellate Court was of the view that the trial Court had not applied the law appropriately, it was well within the domain of the first appellate Court to have examined the case both on facts and law and since the entire evidence was available before it, instead of remanding the matter, it should have decided it.
Learned counsel for the appellant has also informed that the matter is now fixed by the trial Court is on 24.05.2024.
The matter requires consideration.
The appeal is admitted.
Let notice be issued to the respondents returnable at an early date.
Learned counsel for the appellant shall take steps within a period of one week from today.
List this matter again on 16.07.2023.
Order Date :- 13.5.2024 Rakesh/-
Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the First Appellate Court erred in remanding a fully proved case for fresh trial under Section 90-A of the Indian Succession Act without deciding it on merits.
Whether the District Appellate Court ought to have examined the case on facts and law instead of remanding it.
Whether the appeal filed by the appellant is admissible and maintainable under Order 43 Rule 1(u) CPC.
4 provisions across 3 enactments
Siyaram
Madhuri Devi And Others
Jaspreet Singh J
As recorded by the court registry
7 orders share this CNR
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