Remanded

Neelakantan Nair v. Indira Devi

Kerala HC5 Sept 2013FAO/200/2012

Case brief

AI extract

What is this about?

The Kerala High Court altered the lower appellate court's open remand in a partition suit. The High Court held that the appellate court failed to address other contentions regarding the Will's execution and the redeeming co-mortgagor claim. The appeals were allowed, setting aside the impugned judgment and remitting the matter to the Lower Court for a fresh decision.

What did the court decide?

Impugned judgments set aside and appeals remitted to the Third Additional District Court, Thiruvananthapuram, for a fresh decision within two months.

Neelakantan Nair Vs Indira Devi — Partition | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935

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FAO.No. 200 of 2012 () ----------------------ORDER/JUDGMENT IN AS 235/2004 of III ADDL. DISTRICT COURT, TRIVANDRUM DTD 12-04-2012 ORDER/JUDGMENT IN OS 1330/1994 of I ADDL.MUNSIFF COURT,TRIVANDRUM DTD 19-06-2004

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APPELLANT(S) AND RESPONDENTS 2 AND 3/DEFENDANTS 1 TO 3:

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1. NEELAKANTAN NAIR, KUTHIRAKKATTU VEEDU, PANGAPPARA, THIRUVANANTHAPURAM

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2. RAJASREE, W/O.SIVARAMAKRISHNAN, 'KUDIL', T.C.29/1478, M.G.R.A.77 M.K.K.NAIR ROAD, PETTAH PO, THIRUVANANTHAPURAM.

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3. SIVARAMAKRISHNAN, RESIDING AT 'KUDIL', T.C.29/1478 M.G.R.A.77, M.K.K. NAIR ROAD, PETTAH PO THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ

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RESPONDENT(S)/1ST RESPONDENT/PLAINTIFF:

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INDIRA DEVI, KALIYAMVILAKATHU VEEDU, KALLIYOOR DESAM, NEMOM VILLAGE THIRUVANANTHAPURAM FROM VADAKKE VATTAVILAKATHU VEEDU HRISHIMANGALAM BHARATH BHAVAN, PATHIRIKARIMURI VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM 695017.

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R BY ADV. SRI.M.R.ANANDAKUTTAN R BY ADV. SMT.M.A.ZOHRA R BY ADV. SRI.MAHESH ANANDAKUTTAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05-092013 ALONG WITH F.A.O.NO.201 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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=========================

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F.A.O.Nos.200 and 201 of 2012

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============================ Dated this the 05^th day of September, 2013

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J U D G M E N T

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Admit.

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The following substantial questions of law are framed for

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a decision:

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(i) Has not the appellate court abdicated its power and jurisdiction in not deciding the appeal on merits on the basis of the available evidence in the case and hence illegal, perverse and erroneous?

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(ii) Is the lower Court justified in allowing the plaintiff to adduce fresh evidence in the case on Ext.A1 as the plaintiff has no such claim or prayer?

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(iii) When it is found that 1^st defendant is a redeeming co-mortgagor in possession of the property from 25.03.1972 and that he has paid huge amounts for redeeming the mortgage and improving the property, is not the suit for partition alone totally fraudulent and not maintainable?

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(iv) Is not the suit barred by limitation in view of the finding of the lower Court that the 1^st defendant is a redeeming mortgagor who redeemed and obtained possession of the plaint property in 1972?

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F.A.O.Nos.200 and 201 of 2012

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(v) Has not the lower Courts allowed and committed grave illegality and perversity in decreeing the suit on a Will which is not proved as provided under Sec.63 of the Indian Succession Act and Sec.68 of the Evidence Act?

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These appeals arise from the common judgment dated 12.04.2012 in A.S.Nos.235 and 237 of 2004 of the third Additional District Court, Thiruvananthapuram.

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Respondent/plaintiff filed O.S.No.1330 of 1994 in the first Additional Munsiff Court, Thiruvananthapuram for partition and separate possession of the 1/5 share she claimed in the suit property. Learned Munsiff granted a decree as prayed for which the appellants/defendants 1 to 3 challenged in A.S.Nos.235 and 237 of 2004. Learned Additional District Judge thought that further evidence is required, set aside the judgment and preliminary decree of the trial court and remitted the suit to the trial court for fresh decision.

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The suit property, it is not disputed originally belonged to Bhagavathy Amma who had 5 children - 3 sons and 2 daughters. First appellant/first defendant is one of the sons who is said to have acquired right of the two other sons and a daughter. The other daughter who retained the 1/5 share died. Thereon, the said 1/5 share devolved on her legal heir, Lakshmi

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F.A.O.Nos.200 and 201 of 2012

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Amma. On her death, the said 1/5 share devolved on her daughter, Meenakshi Amma who is said to have executed Ext.A1, Will in favour of the respondent/plaintiff. It is on the strength of that Will that the respondent/plaintiff claimed 1/5 share in the suit property, leaving the remaining 4/5 share to the first defendant.

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Defendants contended that Bhagavathy Amma had created a mortgage in favour of Chinnamma Amma in 1111ME and that by successive assignments, right of the mortgagee came to one Ramakrishna Pillai and on his death, that right devolved on Sukumari Amma and Vasanthakumari Devi. The first appellant and other co-mortgagors filed O.S.No.1103 of 1966 against the said Sukumari Amma and Vasanthakumari Devi claiming redemption of the property. It is contended that based on a compromise, a decree for redemption was passed on 20.12.1966. It is further contended that thereafter the first appellant and the mortgagees entered into an agreement on 25.03.1972 as per which the mortgagee's right was released to the first appellant on the mortgagees taking value of improvements etc. The first appellant claimed to be in absolute possession and enjoyment of the entire property and invested `1,64,000/- for improving the property. He claimed that he has stepped into the shoe of the mortgagee and hence a mere suit for partition without a prayer

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F.A.O.Nos.200 and 201 of 2012

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for redemption of the mortgage would not lie. Appellants also denied due execution and genuineness of Ext.A1, Will.

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In the trial court, PW2 was examined to prove due execution and attestation of Ext.A1. The trial court found in favour of due execution of Ext.A1. So far as the plea of the appellants based on the mortgage and its redemption is concerned, the trial court though discussed the law on the point, did not decide the question for the reason that the written statement does not contain sufficient plea regarding the right claimed by the appellants as redeeming co-mortgagors. Consequently, that plea of the appellants was negatived. A preliminary decree for partition was passed as prayed for by the respondent.

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The lower appellate court, it is seen did not go into the plea raised by the appellants as to the genuineness and execution of Ext.A1 and other questions raised but, confined its consideration to the contention raised by the appellants based on the mortgage and its redemption by them as per compromise decree dated 20.12.1966 followed by the compromise between the first appellant and the mortgagees on 25.03.1972. It appears that there was some confusion before the lower appellate court as to whether the compromise dated 25.03.1972 relied on by the appellants was marked in evidence or not. The lower appellate

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F.A.O.Nos.200 and 201 of 2012

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court observed that at some point of time it was contended that the documents are not available but, as per order of the District Court the same were reconstructed. The lower appellate court also observed that though in the evidence of DW1 there is reference to the marking of copy of compromise dated 25.03.1972 as Ext.B3, the document marked as Ext.B3 is not that compromise, but a receipt issued for some construction work. The lower appellate court observed that finding of the trial court that there is no sufficient plea raised by the appellants in the written statement concerning their claim based on redemption of mortgage is not correct and that though specific words are not used, in substance there is sufficient plea as regards right claimed by the appellants based on redemption of mortgage and the compromise dated 25.03.1972. In that view of the matter, the lower appellate court thought that it is necessary to set aside the judgment and preliminary decree of the trial court. Consequently, the case was remitted to the trial court for fresh decision.

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Learned counsel for the appellants contend that in view of Rule 24 of Order XLI of the Code of Civil Procedure (for short, "the Code”), it was within the power and responsibility of the lower appellate court to decide the issue regarding right of the appellants as redeeming co-mortgagors since sufficient

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F.A.O.Nos.200 and 201 of 2012

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evidence in that regard was available. It is argued that for deciding that question, a remand of the case is not necessary. Learned counsel has also referred to Sec.107 of the Code to contend that the appellate court has all the powers which could be exercised by the trial court. A further argument is that though various other contentions are also raised in the memorandum of appeal, the lower appellate court has confined its consideration to only one point, whether the appellants are entitled to claim benefits as redeeming co-mortgagors and a suit for partition alone would lie. Learned counsel points out that though the finding of the trial court regarding due execution and genuineness of Ext.A1, Will was specifically challenged in the lower appellate court, the said Court has not adverted to that question. Learned counsel submits that if it is found that due execution and attestation of Ext.A1 is not proved by the evidence, respondent has to be non suited and it is not necessary to go into other questions involved. It would appear that there is an open remand enabling the respondent to cure the lacuna if any in the matter of proof of Ext.A1 as well, it is argued.

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Learned counsel for the respondent has contended that there is sufficient evidence as regards due execution and attestation of Ext.A1. Learned counsel has referred me to the evidence of PW2 who according to the learned counsel, has

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F.A.O.Nos.200 and 201 of 2012

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identified signature of the executant and one of the attesting witnesses in Ext.A1 which is sufficient compliance with Sec.69 of the Indian Evidence Act. A further argument the learned counsel has advanced is that so far as right claimed by the appellants as redeeming co-mortgagors is concerned, it was necessary to prove the relevant document - the alleged compromise dated 25.03.1972 as provided under the law. What was marked as Ext.B3 is not the said document but a receipt issued by a contractor.

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I am inclined to think that in view of Rule 23 of Order XLI of the Code introduced by Act 104 of 1976, the appellate court has wide powers to direct remand of the case even when it is found that the parties to the suit or some of them are guilty of some latches. True that it is also open to the appellate court to decide the issue without remand in view of the Order 24 of the Code if sufficient evidence is on record. But, various considerations has to weigh with the appellate court while deciding whether a remand of the case is required. Whether, a decision by the lower appellate court for the first time would affect right of the aggrieved party to file a first appeal challenging that finding is also a matter to be considered by the appellate court.

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F.A.O.Nos.200 and 201 of 2012

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So far as the present case is concerned, it is seen that what is marked as Ext.B3 series are certain receipts and not copy of compromise dated 25.03.1972. Learned counsel for the appellants submitted that in fact a copy of the compromise is appended to Ext.B1 proved in the case. But, whatever reference is made by the lower appellate court is to Ext.B3 which, as per the appendix of the trial court's judgment shows, are two receipts dated 18.01.1994 and 10.12.1993, respectively.

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I must also notice that the trial court though, considered the legal question as to the right of redeeming comortgagors did not go into the question whether the appellants are entitled to claim benefit as redeeming co-mortgagors in view of Ext.B1 and the alleged compromise dated 25.03.1972 (learned counsel for the respondents submits that the respondents is not admitting the compromise dated 25.03.1972 in which case, that also is a matter which the court concerned has to decide).

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But, it is seen that the lower appellate court has not considered the other contentions raised by the appellants in the memorandum of appeal including the finding of the trial court regarding due execution and attestation of Ext.A1. If the lower appellate court accepts the contention of the appellants as regards Ext.A1 and it is found that due execution and attestation of Ext.A1 is not proved, the lower appellate court has to decide

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F.A.O.Nos.200 and 201 of 2012

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what consequence should follow therefrom. It is without considering other contention that the lower appellate court has ordered an open remand of the case. In that view of the matter, I am inclined to interfere with the common judgment of the lower appellate court.

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But, I make it clear that after the lower appellate court considers other contentions raised by the appellants in the memorandum of appeal, if it finds that a remand of the case either wholly or, to decide any particular point involved in the suit is required, it is open to the lower appellate court to think in that line as well.

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The substantial questions of law framed are answered accordingly.

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Resultantly these appeals are allowed by way of remand as under:

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(i) Common judgment dated 12.04.2012 in A.S.Nos.235 and 237 of 2004 of third Additional District Judge, Thiruvananthapuram is set aside.

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(ii) A.S.Nos.235 and 237 of 2004 are remitted to the third Additional District Court, Thiruvananthapuram for fresh decision in the light of the observations made above.

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(iii) Parties shall appear in the third Additional District Court, Thiruvananthapuram on 30.09.2013.

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F.A.O.Nos.200 and 201 of 2012

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(iv) Learned third Additional District

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Judge is directed to dispose of the appeals as early as possible, at any rate within two months from 30.09.2013.

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All pending interlocutory applications will stand dismissed.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

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True Copy

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P. A to Judge

Neelakantan Nair v. Indira Devi

Case brief

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Neelakantan Nair v. Indira Devi

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