Dismissed

T. Jayarama Bhat v. T.K. Dinesh

Kerala HC30 May 2022FAO (RO)/106/2015

Case brief

AI extract

What is this about?

The court dismissed the appeal against a preliminary decree that overlooked a registered Will. In a partition suit, the first appellate court remanded the matter to afford the legatee-respondent an opportunity to prove the Will under Section 68 of the Evidence Act, despite Order XLI Rules 23, 23A, and 24 of the CPC. The High Court upheld the remand order due to lack of proper legal advice preventi

What did the court decide?

The appeal was dismissed; the order of remand for proving the registered Will was upheld with a directive to dispose within six months.

T. Jayarama Bhat Vs T.K. Dinesh — Succession and Inheritance | Kerala HC (2022)

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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 P.SOMARAJAN

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MONDAY, THE 30^th DAY OF MAY 2022 / 9TH JYAISHTA, 1944

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FAO (RO) NO. 106 OF 2015

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AGAINST THE JUDGMENT & DECREE DATED 11.03.2011 IN OS No. 265/2010 OF

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PRINCIPAL MUNSIFF COURT, KASARAGOD

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JUDGMENT & DECREE DATED 04.12.2014 IN AS No.4/2012 OF SUB COURT,

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KASARAGOD

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APPELLANTS/RESPONDENTS 1 TO 2/PLAINTIFFS:

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1 T. JAYARAMA BHAT, AGED 66 YEARS, S/o KRISHNA BHAT, R/AT LAKSHMI NILAYA, 19TH VASU LAYOUT, RAMAKRISHNA NAGER, IST BLOCK, MYSORE – 22, KARNATAKA STATE.

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2 VENUGOPALA BHAT, AGED 60 YEARS, S/o KRISHNA BHAT, R/AT NISAYOGA, KOLATHUR VILLAGE AND POST, UDUPI TALUK AND DISTRICT, KARNATAKA STATE

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BY ADV SRI.KODOTH SREEDHARAN

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RESPONDENTS/APPELLANT AND R4, R6-R14/DEFENDANTS:

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1 T.K. DINESH, AGED 58 YEARS, S/o KRISHNA BHAT, R/AT THAMBILA KODI, KOLYOOR VILLAGE, KODLAMOGARU POST, KASARAGOD DISTRICT.

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2 GANGA BHAT, AGED 68 YEARS, W/o THIMMANNA BHAT, R/AT PANGLAI, DARBE SAIZA LAYOUT, PUTTUR POST, KASBA VILLAGE, DK DISTRICT, KARNATAKA STATE.

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3 VARIJA, AGED 61 YEARS, W/o JAYAKRISHNA BHAT, R/AT VIJAYALAXMI NILAYA, NEAR VISWAKARMA WOOD INDUSTRIES, KONAJE VILLAGE AND POST, MANGALORE TALUK, D.K DISTRICT, KARNATAKA STATE.

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4 KUSUMA, AGED 55 YEARS, W/o LATE JAYARAMA BHAT, R/AT NO.306, JNANA NILAYA, 5A CROSS, 3RD MAIN, 3RD BLOCK, HRDR LAYOUT, P.O.KALYANA NAGER,

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FAO (RO) No.106 of 2015 2

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BANGALORE – 43, KARNATAKA STATE.

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5 NARASIMHA BHAT, AGED 78, R/AT NO.56, NEELADRI, IST FLOOR, 20TH MAIN,IST R BLOCK, N.R.MAHALAXMI LAYOUT ENTRANCE, RAJAJI NAGER, BANGALORE - 560 010, KARNATAKA STATE.

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6 JAYASHREE, AGED 44 YEARS, W/o SRIPATHI N., R/AT NO.C-18, KIOCL TOWNSHIP KOVOOR, MANGALORE - 575 015.

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7 SUMITHRA, AGED 40 YEARS, W/o SUDHARMA, R/AT NO.C-18, KIOCL TOWNSHIP, KOVOOR, MANGALORE - 575 015.

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8 SHARADA, AGED 38 YEARS, R/AT NO.C-18, KIOCL TOWNSHIP, KOVOOR, MANGALORE -575 015.

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9 SHAM BHAT, AGED 67 YEARS, R/AT VANA SHREE, ENMOOR VILLAGE, SULLIA TALUK, DK DISTRICT, KARNATAKA STATE.

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10 SHUBHAMANGALA, AGED 35 YEARS, D/o SHAM BHAT, R/AT VANA SHREE, ENMOOR VILLAGE, SULLIA TALUK, DK DISTRICT, KARNATAKA STATE.

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11 PRASHANTHA, AGED 32 YEARS, S/o SHAM BHAT, R/AT VANA SHREE, ENMOOR VILLAGE, SULLIA TALUK, DK DISTRICT, KARNATAKA STATE.

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R1 BY ADVS. SRI.V.T.MADHAVANUNNI

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SRI.V.A.SATHEESH

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R2 TO R6 & R8 TO R11 SRI.T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) No.106 of 2015

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JUDGMENT

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In a suit for partition, a registered Will was taken up by the 6^th defendant, the legatee, in respect of the property sought to be partitioned. But the trial court granted a preliminary decree overlooking the registered Will on the ground that it was not proved in accordance with the mandate under Section 68 of the Evidence Act by summoning the witness. It was set aside by the first appellate court so as to afford an opportunity to the 6^th defendant to prove the registered Will and remanded the matter for that purpose. It was assailed on the ground that it was against the mandate under Rule 23, 23A and 24 of Order XLI C.P.C.

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The legal position was very much settled by this

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Court in Gopalakrishnan and Another v. Ponnappan and others [2021 (5) KHC 548]. Non-consideration, failure or mis-

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appreciation of an issue may not be a ground for remand of

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the case when evidence on record is sufficient for

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determination of the issue by the appellate court.

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Paragraph 4 of the said judgment is extracted below for

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FAO (RO) No.106 of 2015

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reference:

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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 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

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FAO (RO) No.106 of 2015

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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 the party, it is permissible to order remand of the case.”

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The Apex Court in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta [1988 KHC 883] had the occasion to deal with the permissibility of a remand under Oder XLI R.23A CPC and laid down that even though formally an issue

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not framed but if parties went to trial and adduced evidence keeping that issue in mind and drew attention of Court in that regard, appeal need not be remanded for a finding on that question.

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But it is a case wherein no evidence was adduced

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with respect to execution of a registered Will and it is submitted by the learned counsel for the appellants that

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may be due to lack of proper advise, the mandate under

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FAO (RO) No.106 of 2015 6

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Section 68 of the Evidence Act was not complied with by the 6^th defendant, though the Will was brought up in evidence. This would clearly show the lack of proper advise. The fact that no evidence was adduced would sufficiently explain what actually happened in the trial court. When there is a registered Will, the factum that the Will was registered though itself does not prove its due execution cannot lightly be discarded and rejected in a routine manner without affording sufficient opportunity to comply with the requirement under the said provision. Hence, it is a fit case wherein an opportunity can be afforded to the 6^th defendant. The order of remand for that purpose deserves no interference, but the trial court shall expedite the disposal within a time schedule of six months. The parties shall appear before the trial court on 15/06/2022.

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The appeal is dismissed accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

T. Jayarama Bhat v. T.K. Dinesh

Case brief

What is this about?

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T. Jayarama Bhat v. T.K. Dinesh

Case brief

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