Allowed

Deepa K.Kartha v. Thulasilekshmi Ammal

Kerala HC14 Jul 2022FAO (RO)/185/2017

Case brief

AI extract

What is this about?

Justice P. Somarajan set aside the remand order in a suit concerning a settlement deed executed by a mother in 2006 and later unilaterally cancelled. The court held that the first appellate court failed to address all issues and incorrectly ordered remand instead of deciding them, such as whether the cancellation binds the plaintiff's interest.

What did the court decide?

The order of remand is set aside; both appeals are allowed; parties to appear before the first appellate court on 25/07/2022.

Deepa K.Kartha Vs Thulasilekshmi Ammal — Partition | Kerala HC (2022)

¶1

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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THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944
FAO (RO) NO. 185 OF 2017

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AGAINST THE JUDGMENT AND DECREE DATED 15/7/2017 IN AS 288/2012 OF
DISTRICT COURT, KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 4/12/2010 IN OS 217/2008 OF
MUNSIFF COURT, PALA

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APPELLANT/PLAINTIFF:

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DEEPA K.KARTHA,
W/O.KRISHNAKUMAR,AGED 37 YEARS,NEERUNKAL
VEETTIL,ALANADU KARA,BHARANANGANAM VILLAGE,MEENACHIL
TALUK.

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BY ADV SRI.P.C.HARIDAS

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RESPONDENT/DEFENDANT:

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THULASILEKSHMI AMMAL
W/O.KRISHNANKUTTY KARTHA,AGED 57 YEARS,
KAROTTUMADATHIL HOUSE,
MEENACHIL KARA,MEENACHIL TALUK,
MEENACHIL TALUK-686575.

¶12

BY ADV SRI.P.R.VENKATESH

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 14.07.2022, ALONG WITH FAO (RO).6/2018, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

[FAO (RO) Nos.185/2017, 6/2018]

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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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THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944

¶20

FAO (RO) NO. 6 OF 2018

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AGAINST THE JUDGMENT AND DECREE DATED 15/7/2017 IN AS 288/2012 OF
PRINCIPAL DISTRICT COURT,KOTTAYAM

¶22

AGAINST THE JUDGMENT AND DECREE DATED 4/12/2010 IN OS 217/2008 OF
MUNSIFF COURT, PALA

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APPELLANT/APPELLANT/DEFENDANT

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THULASILEKSHMI AMMAL, AGED 58 YEARS,
W/O KRISHNAKUTTY KARTHA, KAROTTUMADATHIL HOUSE,
MEENACHIL KARA, MEENACHIL VILLAGE, MEENACHIL TALUK.
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS

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RESPONDENT/RESPODNDENT/PLAINTIFF:

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DEEPA.K KARTHA, AGED 36 YEARS,
W/O KRISHNAKUMAR NEERUNKEL VEETTIL, ALANADU KARA,
BHARANANGANAM VILLAGE, MEENACHIL TALUK-686651.

¶27

BY ADV SRI.P.C.HARIDAS

¶28

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 14.07.2022, ALONG WITH FAO (RO).185/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶29

[FAO (RO) Nos.185/2017, 6/2018]

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3

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JUDGMENT

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It is so unfortunate that yet another case of
remand came up before me, in which the learned
District Judge had ordered a remand in a routine way
without answering the dispute involved in the suit.
It is pertaining to the execution of Ext.A1
settlement deed by the mother/defendant in favour of
the daughter/plaintiff as early as in the year 2006.
Later on under Ext.A4 cancellation deed, that too,

¶33

after the expiry of two years, the mother
unilaterally cancelled Ext.A1 settlement deed. Hence,
the plaintiff/daughter came up with a suit for
declaration that the unilateral cancellation is not
binding on her right,title and interest over the
plaint schedule property covered by Ext.A1. The
findings rendered by the trial court has been
overturned by the first appellate court mainly on the
reason that an agreement Ext.B1 alleged to have been
entered into by the mother with the daughter for
re-conveyance of property was not proved in
accordance with the law in force and for that purpose

¶34

[FAO (RO) Nos.185/2017, 6/2018]

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4

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a remand was ordered.

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2. Yet another direction was also issued to
settle whether Ext.B3 is an onerous gift or not. The
legal position is very much settled by this court in
Gopalakrishnan and Another v. Ponnappan and others
[2021 (5) KHC 548] followed by the decision rendered
by the Apex court on that point in Bhairab Chandra
Nandan v. Ranadhir Chandra Dutta (1988 KHC 883). It
is the duty of the first appellate court to address
all the issues involved in the suit even if one or
some of the issues were omitted to be considered or
taken up by the trial court. It is not a ground for
ordering remand of the matter to the trial court. On
the other hand, the first appellate court has to
address all the issues involved in the suit including
the issues which were omitted to be considered or
taken up by the trial court. Further, the execution
of Ext.A1 settlement deed is not under dispute. The
subsequent cancellation under Ext.A4 would itself
show the due execution of the earlier settlement
deed, Ext.A1. Unilateral cancellation without the

¶38

[FAO (RO) Nos.185/2017, 6/2018]

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5

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juncture of beneficiary under Ext.A1 settlement deed,
the plaintiff, will not have any legal sanctity and
will not bind on the right, title and interest of the
plaintiff over the property. The question of onerous
gift would not arise for consideration. In fact, the
first appellate court went wrong in appreciating and
applying the legal position in its correct
perspective and that has resulted in miscarriage of
justice. Hence, the order of remand is hereby set
aside. The parties shall appear before the first
appellate court on 25/07/2022, so as to proceed
further in the matter and the appeal shall be
disposed of within a time schedule of two months from
the date of appearance of the parties.

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Both the appeals will stand allowed accordingly.
No costs.

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Sd/-

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P.SOMARAJAN JUDGE

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msp

Deepa K.Kartha v. Thulasilekshmi Ammal

Case brief

What is this about?

What did the court decide?

Deepa K.Kartha v. Thulasilekshmi Ammal

Case brief

What is this about?

What did the court decide?

What the court decided

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