Remanded

Murikyal Pavithran v. Murikyal Rohini

Kerala HC29 May 2023RSA/620/2020

Case brief

AI extract

What is this about?

In a regular second appeal concerning a suit to cancel a Settlement Deed and set aside an Exchange Deed alleged to be forged, the High Court set aside the judgment and decree. The court held that the trial and appellate courts erred by deciding the validity of an unchallenged Gift Deed and failed to adjudicate the challenged Exchange Deed. The matter was remanded for fresh consideration.

What did the court decide?

Judgment and decree of trial and appellate courts set aside; suit remanded to trial court for fresh consideration; parties directed to submit additional pleadings; interim order continued.

Murikyal Pavithran Vs Murikyal Rohini — Succession and Inheritance | Kerala HC (2023)

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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 T.R.RAVI

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MONDAY, THE 29TH DAY OF MAY 2023 / 8TH JYAISHTA, 1945

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RSA NO. 620 OF 2020

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AGAINST THE JUDGMENT IN AS 20/2015 OF PRINCIPAL SUB COURT, THALASSERY
OS 176/2012 OF MUNSIFF COURT, THALASSERY

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APPELLANT/APPELLANT/DEFENDANT:

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MURIKYAL PAVITHRAN
AGED 62 YEARS
S/O.MADHAVI, RESIDING AT VIPIN NIVAS, ANJARAKKANDY DESOM,
MURINGERI DESOM, MURINGERI P.O., KANNUR DISTRICT,
PIN-670 612.

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BY ADVS.
DAISY A.PHILIPOSE
SRI.HARIDAS THAIKKANDY

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RESPONDENT/RESPONDENT/PLAINTIFF:

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MURIKYAL ROHINI
AGED 83 YEARS
D/O.MANIKKAM, RESIDING AT ERAMBALLY HOUSE, ANJARAKKANDY
DESOM, MURINGERI DESOM, MURINGERI P.O., KANNUR DISTRICT,
PIN-670 612.

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BY ADVS.
UTHARA ASOKAN
P.K.BALAKRISHNAN(K/203/1983)
ABRAHAM K.JOHN(K/320/1988)
RAHUL GOVIND(K/000829/2018)
C.G.ARUNDHATHI(K/1086/2011)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NO. 620 OF 2020

T.R. RAVI, J.

R.S.A No.620 of 2020

Dated this the 29^th day of May, 2023

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JUDGMENT

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The defendant is the appellant. The suit was filed by the respondent praying for cancellation of a Settlement Deed which was executed on 02.04.2012. The grievance of the appellant is that while decreeing the suit, the court went further and held that Ext.A5/B1 Gift Deed/Assignment Deed No.1022/1988 of SRO, Anjarakandy was also vitiated by fraud. The case of the appellant is that he was already enjoying the property on the basis of the Gift Deed/Assignment Deed and it is almost 24 years later that the Exchange Deed is executed, stating that the earlier Gift Deed/Assignment Deed was executed on the basis of a mistake and fraud. It is submitted that the suit was filed only regarding the Exchange Deed and there was no prayer regarding the earlier Gift Deed/Assignment Deed. It is hence submitted that the court was never called upon to pronounce on

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RSA NO. 620 OF 2020

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the validity or otherwise of Ext.B1 Gift Deed/Assignment Deed. The fact that there was no prayer regarding the validity of Ext.B1 is admitted by the counsel for the respondent also. However, even though the prayer is for setting aside the Exchange Deed it would appear what is granted is a decree setting aside Ext.A5, referring to it as Exchange Deed (Document 1022/1988). This is an apparent mistake committed while drafting the decree. The appellate court in its decree has merely said that the appeal is dismissed. The mistake is hence carried forward in the appellate decree also. The appellate court has noticed the fact that there is no challenge regarding the Gift Deed Ext.A5. However, stating that for the purpose of proving the title of DW1 over plaint A schedule property which he exchanged for plaint B schedule property it is necessary to decide the validity of Ext.A5 also. The above stand taken by the appellate court is clearly erroneous. If the court was definitely of the opinion that there was no prayer challenging Ext.A5, necessarily the matter should have been put in issue with

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RSA NO. 620 OF 2020

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necessary amendments of the plaint and the suit further proceeded. The court could not have in the appellate stage gone into an issue which was never available before the court below and decided it on merits even without any evidence on record. Moreover, the court has not proceeded to decide on the validity of the Exchange Deed even though that was challenged in the original suit.

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In the above circumstances, the judgment and decree of the trial court as well as the appellate court are faulty and are set aside. The suit is remanded back to the trial court for fresh consideration. The parties may submit additional pleadings, if so advised. The parties to appear before the court on 03.07.2023. The interim order granted regarding plaint B schedule property will continue in force till then.

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Sd/-

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T.R.RAVI JUDGE

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mpm

Murikyal Pavithran v. Murikyal Rohini

Case brief

What is this about?

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Murikyal Pavithran v. Murikyal Rohini

Case brief

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