IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 FAO.No. 57 of 2004() -------------------- AS.220/2000 of DISTRICT COURT, KOTTAYAM OS.536/1994 of ADDL.SUB COURT,KOTTAYAM .................... C. M. APPELLANTS/RESPONDENTS 1 TO 3 IN A.S. ---------------------------------------- 1. KUNJAMMA @ CHACHIAMMA, VALIAPARAMPIL, PUTHUPPALLY KARA, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK. 2. ALEYAMMA, CHEMPRAYIL, NADUVILE MURI, THALAVADI P.O., KUTTANAD TALUK. 3. ANNAMMA, KINARVILAYIL, VOTTIPPURA, MUNDUKOTTACKAL P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADVs. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.VPK.PANICKER SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP SRI.ABRAHAM GEORGE JACOB SRI.S.GOWTHAM RESPONDENT(S): --------------- 1. MANOJ ANTONY, S/O. ANTONY, NADUVILEPARAMPIL, VAKATHANAM, CHANGANACHERRY. 2. MAJISH ANTONY, OF DO. DO. F.A.O. No. 57 of 2004 -:2:- 3. P.P. THOMAS, S/O. PUNNOOSE, KOTTOOR, VAKATHANAM, CHANGANACHERRY. 4. ANTONY VARGHESE, S/O. VARKEY, NADUVILEPARAMPIL, VAKATHANAM, CHANGANACHERRY. 5. MARYKUTTY, KUMMANKULATHU, KIZHAKKEKARA, VAKATHANAM. 6. SARAMMA, VAIAPARAMPIL HOUSE, PUTHUPPALLY KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. ADV. SRI.S.SHYAM FOR R1 TO 4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/07/2009, ALONG WITH WPC NO. 40296 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 * * * * * * * * * * * * * * * * * * Dated: 15th day of July 2009 JUDGMENT The plaintiffs in O.S. No. 536 of 1994 on the file of the Addl. Sub Court, Kottayam are the appellants in F.A.O. 57 of 2004 and the petitioners in W.P.C. 40296 of 2003. The said suit was for setting aside Ext.A5 settlement deed dated 17-2-1994 of which Ext.B1 is the original and Ext.A6 gift deed dated 17-2- 1994 of which Ext.B2 is the original and for recovery of possession of three items of plaint schedule properties on the strength of the plaintiffs' title and also for consequential injunction. Both the settlement deed as well as the gift deed were executed by one Punnoos Kurian who died on 15-9-1994 pending suit. 2. For a better appreciation of the rival contentions of the parties, it may be necessary to refer to the relationship between F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:2:- the parties. Punnoose Kurian referred to above was the first defendant in the suit. One Annamma who is the 8 th defendant in the suit is his wife. They have five daughters who are plaintiffs 1 to 3 and defendants 6 and 7. Their names are Kunjamma, Aleyamma, Annamma, Marikutty and Saramma. 5 th defendant is the husband of the 7 th defendant Saramma and defendants 2 and 3 are their sons. 4 th defendant Thomas is the son of Punnoose Kurian's sister's son. Punnoose Kurian died at the age of 85 on 15-9-1994. The impugned transactions namely Exts. B1 and B2 of which Exts. A5 and A6 are registration copies were allegedly executed by Punnoose Kurian from one Bharat Hospital at Kottayam. Both the documents were assailed on the ground that Punnoos Kurian did not have the mental capacity to execute the documents. The trial court framed two issues for trial. On the side of the three plaintiffs, six witnesses were examined as P.Ws 1 to 6 and Exts. A1 to A8 were got marked. On the side of the defendants three witnesses were examined as Dws 1 to 3 and F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:3:- Exts. B1 to B9 were marked. Ext.X1 is an application dated 17- 2-1994 for house registration together with the report of the Sub Registrar thereon. 3. The learned Subordinate Judge, after trial, as per judgment and decree dated 31-7-2000 decreed the suit as prayed for. On appeal preferred by defendants D2 to D5 as A.S. No. 220/2000 before the District Court, Kottayam, the learned District Judge as per judgment dated 31-7-2000 set aside the judgment and decree passed by the trial court and remanded the case to the trial court for disposal of the suit afresh with a direction to record findings regarding the alleged mental incapacity of Punnoos Kurian, the executant under Exts. B1 and B2. It is the said remand order which is assailed in this F.A.O. filed under Order 43 Rule 1 (r ) C.P.C. 4. After the remand by the lower appellate court the plaintiffs had filed an application to amend the plaint. That application was dismissed by the trial judge. Challenging the F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:4:- said order that the plaintiffs have filed W.P.(C ). No. 40296/03. 5. As agreed to by both sides, I heard both the appeals as well as the Writ Petition together. 6. As already mentioned, the bone of contention between the parties is as to the validity of Ext.B1 settlement deed and Ext.B2 gift deed allegedly executed on the same day that is on 17-2-1994 by Punnoos Kurian from Bharat Hospital, Kottayam. As per Ext.B1 settlement deed, plaint schedule items 1 and 2 were purportedly settled by Punnoos Kurian in favour of defendants 2 and 3 who are the sons of Saramma the youngest daughter of Punnoose Kurian. . As per Ext.B2 gift deed Punnoos Kurian purportedly gifted plaint schedule item No. 3 to the 4th defendant who is the grandson of the sister of Punnoos Kurian. It was to decide afresh the mental condition of Punnoose Kurian at the time of execution of Exts. B1 and B2 instruments that the lower appellate Court has remanded the case to the trial Court. 7. When the parties had gone to trial on the issue as to F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:5:- whether Exts. B1 and B2 instruments were executed by Punnoos Kurian with a sound disposing mind, the appellant Court was not justified in setting aside the judgment and decree passed by the trial court and remanding the case back to the trial court for deciding the very same issue. It is well settled that as far as possible, the appellate court which is the final court of facts should avoid a remand unless such a course is absolutely essential. See Sundaresan Nair v. Dr. Krishnankutty Nair - 2007 (2) KHC 414 . In a case where there has already been a trial on evidence before the Court of first instance, the appellate power of remand should not be exercised merely because the appellate Court is of the view that the parties who could lead better evidence have failed to do so. (See India Army and Police Equipment v. Kanadia Brothers – 1968 KLT (SN) 19 (SC) . The lower appellate court was thus, not justified in remanding the case for a fresh disposal. The power under Sec. 107 C.P.C. gives sufficient authority to the appellate court to decide any issue on F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:6:- facts and if necessary after receiving additional evidence. The order passed by the lower appellate court amounts to abdication of the appellate powers by the said Court. The remand order dated 24-6-2003 is accordingly set aside and the matter is remitted to the lower appellate court for fresh disposal of the appeal on merits. 8. Incidentally, the lower appellate court had taken into consideration an affidavit produced as additional evidence by the appellants before it without considering the admissibility or otherwise of the same under Order 41 R. 27 C.P.C. Without receiving the additional evidence in evidence it was impermissible for the lower appellate court to look into and consider the same while disposing of the appeal. Hence, the appellate court shall first consider whether the said affidavit produced as additional evidence is to be admitted in evidence or not under Order 47 Rule 27 C.P.C. and it is only if the said document is received in evidence, can the contents of the F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:7:- document be adverted to by the lower appellate Court. As mentioned earlier, after the remand by the lower appellate court, the plaintiff had filed an application to amend the plaint so as to dispute the signature etc. occurring in Exts. B1 and B2. The said application was dismissed by the trial court and the said order is assailed in the above Writ Petition. Now that this Court has already set aside the remand order, it is only proper that the plaintiffs are given opportunity to file an application for amendment of the plaint if so advised before the lower appellate court which shall consider the same under Order 6 R. 17 C.P.C and pass appropriate orders thereon. In the result , F.A. O. 57 of 2004 is allowed and the matter is remanded to the lower appellate court for fresh disposal of the Appeal A.S. No. 220 of 2000 afresh in the light of what has been stated above. W.P.C. No. 40296/2003 shall also stand allowed setting aside Ext.P6 order passed by the trial court dismissing the plaintiffs application for amendment of the plaint. The parties F.A.O. NO. 57 OF 2004 & W.P. (C) No. 40296 of 2003 -:8:- shall appear before the lower appellate court on 3-8-2009 without any further notice. Dated this the 15th day of July 2009. V. RAMKUMAR, (JUDGE) ani.