Rajalakshmi and Others vs Venkatesan and Others

K.M. Natarajan, J.—This appeal is directed by defendants 1, 2, 4 to 6 and 8 to 10 in O.S. No. 49 of 1982 on the file of the Sub-Court,

Pattukottai (Respondents in the same order in A.S. No. 170 of 1984 on the file of the District Court, West Thanjavur) against the order of remand

passed by the lower appellate Court.

Respondents 1 and 2 herein, who are appellants-Plaintiffs in A.S. No. 170 of 1984, filed the suit for the reliefs of declaration and injunction. The

case of the plaintiffs as set out before the trial Court can be briefly stated as follows:

The suit properties consist of our items and they originally belonged to one Ramasamy Thevar. He is alleged to have executed three settlement

deeds Exs. A3, A4 and A5 and a sale deed Ex. A6 in favour of the fourth defendant, Seethalakshmi, Alamelumangai and the sixth defendant

respectively. The sixth defendant is a close friend of Ramasami Thevar. The ninth defendant is alleged to be in possession of some of the properties

through the daughter of Ramasamy Thevar, the tenth defendant. The tenth defendant is the husband of the fourth defendant. It is the further case of

the plaintiffs that Ramasami Thevar executed a Will under Ex. A35, dated 9.10.1981 in favour of the present plaintiffs in respect of the Plaint A

Schedule properties, while the B Schedule properties were dealt with under Exs. A3 to A6 as already stated above. Ramasami Thevar died on

21.11.1981. the Defendants put forward a case that the said Ramasami Thevar revoked the earlier will under Ex. A35 and executed another will

under Ex. B113 dated 18.11.1981 in favour of one Rani, one of the three daughters of Kalaivani and under the said will, in A Schedule properties,

1 acre 20 cents have been given to the seventh defendant for life and thereafter it should revert to defendants 5 and 6 absolutely, and out of the B

Schedule properties, 10 acres 75 cents have been given to Rani, who is not a party to the suit. C Schedule properties under Ex. B113 had been

given to the fourth defendant, while D Schedule properties had been given to the first defendant and the outstandings were given to the plaintiffs.

The defendants filed separate written statements, wherein they contended that the above settlement deeds and the sale deed are not sham and

nominal as contended by the plaintiffs; but they were all true and valid, and that in pursuance of the same the settlees and the vendees have taken

possession and that they have prescribed title by prescription for more than the statutory period. The alleged family arrangement in 1973 is false

and the same was invented for the purpose of the suit. They also denied the truth, validity and genuineness of the will dated 9.10.1981 alleged to

have been executed by Ramasami Thevar. But, they contended that Ramasami Thevar executed will under Ex. B113, dated 18.11.1981 and they

have taken possession of those properties as per the will. According to them, the suit is engineered by one Vaira Thevar, the maternal grandfather

of the plaintiffs. The sale deed in favour of the eighth defendant in 1959 by Ramasami Thevar in respect of items 7 to 10 of B Schedule is true and

valid. The eighth defendant transferred the same to the fifth defendant and according to the fifth defendant, she along with her daughter minor Rani

and the sixth defendant are in exclusive possession of items 7 to 9 of B Schedule. Defendants 8 and 9 contended that they are unnecessary parties

to the suit.

The trial Court framed as many as 11 issues and on the basis of the oral and documentary evidence adduced before the same and in view of the

findings on issues 1 to 5, 8 and 9 came to the conclusion that the settlement deeds and the sale deed executed by Ramasami Thevar on

18.11.1959 are not sham and nominal documents, that they were duly acted upon by the parties, that they are not void and inoperative, that the

family arrangement of 1973 is not true, valid and implemented and that the settlees under the document dated 18.11.1959 have perfected title by

adverse possession. It was further held that the will dated 9.10.1981 under Ex. A35 executed by Ramasami Thevar, though true and valid, is

deemed to have been cancelled by execution of a later will under Ex. B113 which is true and valid and genuine one and binding on the plaintiffs

and that Ex. B113 alone will prevail. It was further held that in view of the above findings on issues 3 and 5, the plaintiffs have no title to the suit

properties and it was so held under issue No. 8. Consequently, the trial Court dismissed the suit. Aggrieved by the same, the plaintiffs preferred the

appeal. The lower appellate Judge, without going into the merits of the case and without giving finding whether the finding of the lower Court is

liable to be reversed as it is erroneous, ordered remand for the purpose of giving an apportunity to the plaintiffs to implead necessary parties,

include properties and also adduce necessary evidence on the basis of the new pleadings.

The learned Counsel for the appellants, Mr. R. Muthukumarasami, submitted that the lower appellate Court failed to note that the case on hand

does not fall within the provisions of Order 41, Rules 23 23-A, 24 or 25, Code of Civil Procedure, so as to remand the matter for fresh disposal.

According to the learned Counsel, the lower appellate Court failed to see that, even though pleadings were made in the written statements relating

to non-joinder of parties, no issue was framed by the trial Court for the same and the suit was not dismissed on that ground. Further, the lower

appellate Court has materially erred in misdirecting itself in assuming the role of an advisory jurisdiction and seeking to advise the plaintiffs as to

what should they do, without deciding the case as put forward by the parties on the evidence adduced and the judgment rendered by the Court

below. The lower appellate Court failed to see that having regard to the fact that on the evidence on record the plaintiffs have not established their

title, it ought to have rejected the appeal. Further instead of adjudicating the appeal upon the findings given by the trial Court in respect of various

issues, the appellate Court erred in remitting the matter to enable the plaintiffs to amend the frame of the suit, to implead necessary parties and to

put forward alternative claims also and that in doing so, the said order of remand is totally without jurisdiction and contrary to the provisions of

Order 41, Rule 23 or 23-A of the CPC and as such it is liable to be set aside.

On going through the Judgment of the lower appellate Court, I find that the learned District Judge has not gone into the merits and demerits of

the case put forward by the parties and the findings given by the trial Court. On the other hand, the lower appellate Court observed that the

properties covered under Exs. A3, A4, A5 and A6 are not the properties found in the will under Ex. A35 and that if that be so, it is not

understandable as to how the plaintiffs can claim, in the face of the other heirs to Ramasami Thevar being alive, exclusive title to the properties. It

also observed that when this position was pointed out to the learned Counsel for the appellants-plaintiffs he would say that as regards the claim of

to Schedule, the matter can be left open to the decided in a separate suit. It also observed that it cannot accept the request of the plaintiffs

because-of multiplicity of proceedings and in view of the voluminous evidence adduced before the lower Court, it concluded that the said relief

cannot be relegated to separate proceedings. The learned District Judge also observed that in case the transactions under Exs. A3, A4, A5 and

A6 are found to be true and genuine, the plaintiffs have no right to the properties. In the instant case, the trial Court found that those documents are

not sham and nominal documents and that they are true documents. The lower appellate Judge did not go into the said finding and come to the

conclusion that the said finding is either erroneous or untenable. On the other hand, the learned District Judge found that if the transactions with

reference to B Schedule properties are found to be sham and nominal, the plaintiffs would be entitled to fractional share and that even for working

out that fractional share, necessary parties are not before Court, particularly Rani, in view of the contention raised by the fifth defendant. It is only

for the said reason and also for including the outstandings of Ramasami Thevar in the suit, the lower appellate Judge felt that the matter should be

remanded and consequently he set aside the findings and the judgment and the decree of the trial Court and remanded the suit to the trial Court so

as to carry out the following things and then dispose of the same according to law. Firstly, it is stated that the necessary parties have to be

impleaded, especially Rani, the alleged legatee under Ex. B113. Secondly, if Exs. A3, A4, A5 and A6 and the wills Ex. A-35 and Ex. B-113 are

to be set aside by the trial Court then the Plaint will have to be suitably amended for the necessary relief of partition among all the co-sharers of late

Ramasami Thevar and in order to avoid such contingency, it would be better for the plaintiffs now itself, to bring all the necessary parties on the

assumption that Exs. A3, A4, A5 and A6 and the two wills are liable to be set aside. Thirdly, all the other properties, both movable and

immovables of the deceased Ramasami Thevar including the outstandings alleged to have been left by Ramasami Thevar and a minor daughter

alleged to have been left by him should be brought to the hotchpot to work out the rights of the parties, in case partition of all the properties of

Ramasami Thevar has to be worked out. Fourthly and lastly it is stated that the market value of all the properties should be given separately for the

relief of partition and the parties will be entitled to file additional pleadings and also let in additional oral and documentary evidence. The learned

Counsel for the appellants, Mr. R. Muthukumarasami, mainly submitted that the lower appellate Court failed to see the scope of Order 41, Rules

23 and 23-A, Code of Civil Procedure, while remanding the suit to the lower Court, According to the learned Counsel, before ever remanding the

case, the appellate Court should reverse or set aside the decree of the lower Court on merits, and in the absence of any finding that the appellate

Court differs from the view expressed by the lower Court, the question of remand does not arise, in this connection, my attention was drawn to the

decision in Pattammal and Others Vs. Yasotha Ammal and Others, , wherein it was held:

The Power of remand under Order 41, Rules 23 and 23-A, C.P.C. can be exercised by the appellate Court if it comes to the conclusion that the

judgement and decree of the trial Court are erroneous on fact or on law and are, therefore, liable to be reversed or set aside. After coming to such

a conclusion, if the appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh

disposal. The discretion of the appellate Court to order re-trial is unfettered. But, this discretion is not to be exercised in an arbitrary manner, but it

should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But, where the

party was denied an opportunity of producing all the evidence they desired to produce before the trial Court, in exercise of the discretionary

powers to further the ends of justice may order remand or re-trial of the case.

The above view was already taken by Ismail, J., (as he then was) in Subramanian and Another Vs. Kaliammal and Others, . In Sow dammal alias

Sundarammal Vs. Veerammal and Others, , it has been held that ""it is clear from the scheme of the rules that generally speaking only where it is no

possible to apply Order 41, Rules 24 to 27, C.P.C., a remand should be resorted to under Order 41, Rule 23, C.P.C. It should be noted further

that before remanding the case, Order 41, Rule 23, itself contemplates that the appellate Court should reverse or set aside the decree. Reading the

rules together, this provision will not apply to a case where the trial Court has considered the entire evidence but in the opinion of the appellate

Court, a different view ought to be taken of the evidence and the appellate Court is in a position to come to a finding on the evidence on record"". I

also had an occasion to consider the question in the case in Kannu Naicker v. Kalaimani (1987)100 L.W. 922, and took the same view and held:

The expression ''interest of justice'' does not widen the powers of the appellate Court to remand a suit in the sense that irrespective of the fact

whether it comes to the conclusion that the judgment and decree of the trial Court are liable to be reversed or set aside or not, if the appellate

Court is of the opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. There is no

principles or authority to support such a contention.

In Santhakumari Vs. Gurumurthy and Others, , Gokulakrishnan, J., (as he then was) held:

No doubt a remand should not be for a flimsy ground or without coming to the conclusion that the decree of the Court below to be set aside or for

allowing the party to fill up the lacuna, if any, in evidence. If the appellate Court, in the interests of justice, after setting aside the decree of the Court

below, wants that a remand has to be made, it can do so. Normally when the appellate Court can invoke the provisions under Order 41, Rules 24

to 27, Civil Procedure Code, to dispose of the matter by itself, it is not expedient on the part of the Court to remand the matter in such

circumstances. But invoking Order 41, Rules 24 to 27, Civil Procedure Code, Is a subjective test of the Court dealing with the matter and as such

the main question that has to be considered in a case filed against an order of remand is as to whether the interests of justice require such a

remand.

In the above quoted case, the learned judge came to the conclusion that there was no error of jurisdiction to interfere with the order of remand

passed by the Land Tribunal in view of the circumstances of the above case. The learned Counsel for the respondent is unable to support the

Judgment passed by the lower appellate Court. He would only submit that the plaintiffs may be given an opportunity to file necessary application

before the lower appellate Court to implead parties and also to amend the pleadings. After going through the materials placed before me, in view

of the reasons stated and in view of the ratio laid down in the above decisions, I have no hesitation in holding that the order of remand passed by

the District Judge without coming to the conclusion that the decree and the judgment of the trial Court are to be set aside but allowing the plaintiffs

to fill up the lacuna, is certainly unsustainable. As rightly observed by the learned Counsel for the appellants, there was no issue framed by the trial

Court in regard to the non-joinder of parties and the suit was not dismissed on the question of non-joinder of parties or not including the other

properties, namely, the outstandings of the deceased Ramasami Thevar. The main questions are whether the plaintiffs have got title to the suit

properties, whether the alleged settlement deeds and the sale deed in favour of the defendants are sham and nominal, whether the will set up by the

plaintiffs is true and valid, whether it was the last will executed by the deceased Ramasami Thevar and whether the said will has not been

superseded by the latest will set up by the defendants under Ex. B-113. In the instant case, the trial Judge came to a conclusion against the

plaintiffs on all these issues. The lower appellate Judge without going to the said findings erred in assuming many things and passed the order of

remand directing the plaintiffs to take steps for impleading parties and adding properties, even though the counsel for the plaintiffs wanted those

things to be relegated to a separate suit. I find much force in the contention of the learned Counsel for the appellants that the lower appellate Court

has not understood the scope of Order 41, Rule 23 or 23-A, C.P.C., but exercised its jurisdiction improperly contrary to ratio laid down in

various decisions of this Court. For all these reasons, the order of remand is certainly not sustainable and it is liable to be set aside.

In the result, the appeal is allowed, the order of remand passed by the lower appellate Court is set aside and the lower appellate Court is

directed to restore the appeal on file and give opportunity to both parties to advance arguments and dispose of the appeal on merits according to

law. In the circumstances of the case, there will be no order as to costs. It is open to the Respondents-Plaintiffs to apply for amendment of the

pleadings and to implead parties, if so advised, before the lower appellate Court.