Allowed

Shahabanathu Beevi v. Shaila Beevi

Kerala HC16 Feb 2022FAO (RO)/21/2021

Case brief

AI extract

What is this about?

The High Court allowed the first appeal filed by the defendant against a remand order. Holding that the lower court erred in not deciding the merit of a suit for declaration of title based on a 1988 gift deed, the Court restored the trial court decree and remanded the case to the first appellate court for disposal within one month.

What did the court decide?

The appeal allowed; order of remand set aside; decree of trial court restored; matter remanded to first appellate court for disposal within one month.

SHAHABANATHU BEEVI, AGED 75 YEARS, D/O.VEEYATHUMMAL, PAANDIVILA VEEDU, HOUSE NO.497/VIII, ANDOORKONAM, PALLIPPURAM VILLAGE, FROM SHAJAHAN MANZIL, PACHIRA, PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV M.DINESH

SHAILA BEEVI, AGED 52 YEARS, D/O.SHAHABANATHU BEEVI, SHYLA MANZIL, ERAVUPALAM, MADATHARA, MADATHARA (P.O), MADATHARA VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT, FROM CHERIYIL VEEDU, HOUSE NO.A.P.VII/169, PACHIRA P.O., PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-691541. BY ADVS.M.P.RAMNATH ANTONY THARIAN S.DEEPAK M.VARGHESE VARGHESE P.RAJESH (KOTTAKKAL) K.S AKSHAY MOHAN SHALU VARGHESE S.SANDHYA BEPIN PAUL

The defendant came up against the order of remand passed by the first appellate court. A suit by the plaintiff, the daughter, for declaration of title and possession over the property covered by a registered gift deed of the year 1988 executed by the mother, the defendant, decreed by the trial court. The first appellate court set aside the said decree mainly on the reason that there is no acceptance of the gift and found that the cancellation deed executed by the mother unilaterally in the year 1989 is valid and remanded the matter for fresh consideration, against which the defendant came up. It was submitted that instead of remand order, the first appellate court ought to have decided the matter on its merits. The legal position was settled by this Court in Gopalakrishnan and another v. Ponnappan and others [2021(5) KHC 548]

declaration of title and possession over the property based on the gift deed of the year 1988 executed by her mother, the defendant. The mother while in the box had admitted its due execution and registration and also admitted that she had executed the document voluntarily fully knowing its content and legal effect. It is also admitted by her that what is stated in the document is fully correct, which includes the delivery of possession effected over the property. It is also admitted that the plaintiff used to come and reside in that property occasionally. The extent of property comes to 15 cents after excluding the western 8 cents, over which admittedly the plaintiff has constructed a residential structure. It seems strange that none of the above said facts were taken into consideration properly by the trial court or the first appellate court. The remand order by the first appellate court without attending the merits and demerits of the case based on the evidence adduced is

against the mandate under Rules 23 and 23 A of Order XLI CPC. As discussed earlier the legal position was settled by this Court in Gopalakrishnan (supra). A constructive notice by virtue of operation of Section 3 of the Transfer of Property Act when the document registered in due process of law to the beneficiary under the document is also a relevant factor to be taken into consideration regarding acceptance. The said question was also answered by this Court in Ramachandran Nair v. Raghavan Nair[2019(3) KLT 831]. The first appellate court ought to have passed a decree after taking into consideration, all the relevant factors as discussed earlier. Against the order of remand, no appeal was preferred by the plaintiff. As such, this Court can exercise its jurisdiction under Order XLI Rule 33 of the CPC and to restore the decree of the trial court even in the absence of an appeal by the plaintiff, but as an abundant caution, the appeal is hereby allowed, by setting aside the order of remand with a direction to

the first appellate court to dispose of the matter in accordance with the mandate of Order XLI CPC within a time schedule of one month from the date of appearance of the parties, for which the parties shall appear before the first appellate court on 22/03/2022.

Shahabanathu Beevi v. Shaila Beevi

Case brief

What is this about?

What did the court decide?

Shahabanathu Beevi v. Shaila Beevi

Case brief

What is this about?

What did the court decide?

What the court decided

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