IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 FAO.No. 132 of 2009() --------------------- AS.77/2006 of I ADDL.SUB COURT, KOZHIKODE OS.193/2003 of PRL.M.C.KOZHIKODE-I .................... APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1 ------------------------------------------ P.K.PREMALATHA, AGED 63 YEARS, W/O.KARUNAKARAN, KOTTECHANATH DANESH NIVAS, KARUVISSERY AMSOM, KOZHIKODE. BY ADV. SRI.SRINATH GIRISH SMT.M.LISHA RESPONDENT(S): APPELLANT & R2 TO 4/PLAINTIFF & DEFENDANTS 2 TO 4 ---------------------------------------------------------------- 1. SREENIVASAN, AGED 58 YEARS, S/O.ARIKKINATTU MANDAYIKKAL CHANDRASENAN, KURUVATTOOR AMSOM POLUR DESOM, KOZHIKODE TALUK. 2. ARIKKINATTU MUNDAYIKKAL NALINAKSHAN, AGED 67 YEARS, S/O.CHANDRASENAN, NEDUNGOTTUR AMSOM DESOM, KOZHIKODE. 3. ARIKKINATTU MUNDAYIKKAL SURESHAN, AGED 60 YEARS, MERCHANT, S/O.CHANDRASENAN, NEDUNGOTTUR AMSOM DESOM, KOZHIKODE. 4. ARIKKINATTU MUNDAYIKKAL SIVADASAN, AGED 54 YEARS, MERCHANT, S/O.CHANDRASENAN, NEDUNGOTTUR AMSOM DESOM, KOZHIKODE. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * F.A.O. No. 132 of 2009 * * * * * * * * * * * * * * * * * * Dated: 18-6-2009 JUDGMENT The first defendant in O.S. No. 193 /2003 on the file of the Principal Munsiff's court, Kozhikode is the appellant in this appeal preferred against an order of remand dated 30-3-2009 passed by the Sub Court, Kozhikode. The said suit is one for partition and separate possession of the plaintiff's share. The main contention of the appellant was that in view of Ext.B3 gift deed dated 6-3- 1984 in her favour the plaint schedule item is not partible. One of the issue framed by the trial court was as to whether Ext.B3 gift deed has been duly executed or not ? The said issue was cast based on the pleadings in the case and in conformity with Sec. 68 of the Evidence Act together with its proviso thereto. The lower appellate court noticed that in spite of such an issue at least one of the testators of Ext.B3 should have been examined and it was by giving the appellant an opportunity to substantiate her contentions based on the said gift that the lower appellate court set aside the judgment and decree passed by the trial court and remanded the case to the trial court. The question as to whether the decree passed in an earlier suit filed by the appellant as O.S. 489 of 2000 has any impact on the contentions of the plaintiff in the present and who was admittedly not a party to O.S. No. 489 F.A.O. 132 of 2009 -:2:- of 200 will assume importance only during the trial of the case. The said issue has no relevance in considering the question as to whether the execution of Ext.B3 gift has been properly proved or not. Hence, the appellate court was right in giving the appellant an opportunity to prove the due execution of Ext.B3 gift deed set up by her. I do not find any question of law, much less, any substantial question of law so as to justify the admission of this appeal since as per the verdict of the Apex Court in Narayanan v. Kumaran - 2004 (4) SCC 26 an appeal against a remand order passed by the lower appellate court will lie only on a substantial question of law within the meaning of Sec. 100 C.P.C. This Appeal is, accordingly, dismissed. I do not alter the date for appearance of the parties fixed by the lower appellate court in the impugned judgment. Dated this the 18th day of June, 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.