THE HON’BLE SRI JUSTICE C.V. RAMULU C.M.A. No. 695 of 2008 JUDGMENT: This civil miscellaneous appeal, under Order 43 Rule 1 of the Code of Civil Procedure, is directed against judgment and decree made in A.S. No. 136 of 2002 dated 31.3.2008 on the file of learned V Additional District Judge (Fast Track Court), East Godavari at Rajahmundry, whereunder the appeal filed by appellants- defendants 1, 3 and 4 was allowed by setting aside the judgment and decree in O.S. No. 44 of 1997 dated 21.12.2000 on the file of learned Senior Civil Judge, Pithapuram and the matter was remanded to the trial Court. Appellant is the plaintiff and respondents are the defendants. It appears, appellant-plaintiff laid suit in O.S. No. 44 of 1997 for declaration of title, consequential recovery of possession and mesne profits of the suit schedule property. The case of appellant-plaintiff is that one Kurakula Venkatarao has three sons, i.e. 1st defendant, 2nd defendant and one Veeraraghavulu, and three daughters. D-1 was given in adoption to Lovaraju, brother of Venkatarao, when he was aged three years. By the date of adoption, Venkatrao had no properties and he was only a labourer. Subsequently, Venkatarao acquired immovable properties with the assistance of his two sons. Wife of Venkatarao died 12 years back. After the demise of his wife, Venkatrao used to stay in the house of D-2, who is the husband of plaintiff. Plaintiff is the grand-daughter of Venkatarao. During the lifetime, Venkatarao executed his last will on 18.2.1997 in sound and disposing state of mind and the plaint schedule property was bequeathed to the plaintiff. Venkatrao died on 21.2.1997. When the plaintiff sent her husband i.e. 2nd defendant to puddle the plaint schedule land after the death of Venkatrao, 1st defendant obstructed him. Immediately, plaintiff got issued legal notice, which was refused by 1st defendant. In the rejoinder, it was averred by the plaintiff that Kurakula Venkatrao executed five wills during his lifetime and the last will is dated 18.2.1997. Without disclosing the other Wills, in order to get unlawful gain, D-3 and D-4 are added as parties basing on a Will dated 20.2.1995 D-3, D-4 are added as parties basing on Will dated 20.2.1995. D-3, D-4 are sons of D-1, who were added subsequent to filing of the suit basing on a Will. They admitted that suit schedule property is the self acquired propertyof late Kurakula Venkatrao, but they claimed that Kurakala Venkatrao executed a registered lease deed dated 20.7.1995 in favour of D-1 for the plaint schedule property. When 2nd defendant and other brothers tried to obstruct the cultivation operations, 1st defendant filed ATC No. 22/96 for injunction. Prior to that, Venkatarao executed a registered Will dated 20.2.1995 bequeathing suit schedule property to defendants 3 and 4, who are his grandsons. There was no possibility to execute the Will dated 18.2.1997 by Venkatarao since he was bedridden for five or six days prior to his death. Taking advantage of the said fact, plaintiff, with the help of her husband-2nd defendant might have obtained the thumb marks of Venkatrao without his consent on blank papers. Since the father’s name of 1st defendant is willfully wrongly noted, 1st defendant refused to receive notice. Defendants 1, 3 and 4 further stated that until the disposal of the A.T.C., the plaintiff cannot ask for any relief and they denied that Venkatrao used to reside in the plaintiff’s house during his last days. D-1 reserved right to send the will to the experts. On the basis of the pleadings, the trial Court framed the following issues: 1. Whether the unregistered will dated 18.2.1997 is true, valid and binding on the defendants? 2. Whether the plaintiff is entitled to declaration of his title to suit property? 3. Whether the plaintiff is entitled to the relief of possession as prayed for? 4. To what relief? On behalf of the plaintiff, she was examined as PW-1 and got examined PWs 2 to 11 and marked Exs.A-1 to A-11, whereas, on behalf of the defendants, DWs 1 to 10 were examined and Exs.B-1 to B-9 were marked. Considering the oral and the documentary evidence available on record, the trial Court decreed the suit with costs, declaring plaintiff’s title to the plaint schedule property and holding that the plaintiff is entitled to recover possession of the schedule property subject to result of ATC 22 of 1996 on the file of Tenancy Tribunal- cum-learned Junior Civil Judge, Pithapuram. Further, 1st defendant was directed to pay the admitted maktha to the plaintiff during pendency of ATC 22 of 1996. Aggrieved thereby, defendants 1, 3 and 4 filed A.S. No. 136 of 2002 on the file of learned V Additional District Judge (Fast Track Court), East Godavari, Rajahmundry. After going through the entire judgment of the trial Court and the other material placed before it, the lower appellate Court framed the following points for consideration: i) Whether the appellants are entitled for setting aside the decree and judgment of the lower Court? ii) To what relief? and held as under: Point No.1: The appellants are D-1, D-3 and D-4 in O.S. No. 44 of 1997. For convenience sake the appellants are arrayed as the defendants and the 1st respondent is arrayed as plaintiff. Admittedly, K. Venkatarao is the owner of the property and he executed Wills. The plaintiff is claiming the property basing on the Wills Ex.A-5 dated 30.12.1996 and another Will dated 18.2.1997 which is marked as Ex.A-1. Ex.A-1 is unregistered Will and the plaintiff adduced evidence to prove Ex.A-1 which is the latest one. D-3 and D-4 are the sons of the 1st defendant and they rely on a registered Will dated 20.2.1995 and claimed the property through that Will, which is marked as Ex.B-2. When the said Venkatarao executed series of Wills in favour of the plaintiff, the last Will was taken into consideration. But, earlier to that there is Will Ex.B-2 in favour of D- 3 and D-4 through which they are claiming property. The lower Court did not frame any issue regarding the genuineness of Ex.B-2 Will. But, only framed issue regarding Ex.A-1 Will. Though Ex.B-2 is earlier Will as there is claim it is necessary to frame issue regarding Ex.B-2 Will and then Court has to decide which Will was proved. But, the lower Court did not frame any issue. Though the defendants examined the attestors and scribe of Ex.B-2, no finding was given. The defendants are disputing Ex.A-1 Will which is unregistered Will. When other Wills were registered by the executant, no satisfactory explanation was given for non-registration of Ex.A-1 Will. The defendants are disputing the mental condition of the executant and they filed medical certificate, but they failed to summon the doctor to prove the medical certificate. The burden is on the plaintiff to explain all suspicious circumstances and the mental soundness of the executant. It is not for the defendants and the burden is on the plaintiff. Merely because of admission of the execution of Ex.A-1 Will it cannot be said that the defendants are not disputing Ex.A-1. D-1 was given in adoption to brother of Venkata Rao by name Lovaraju and the adoption has no bearing as property is claimed by Will. The evidence on record shows that Venkata Rao was not doing well and the reasons for revoking earlier Wills was not given in Ex.A-1 and the defendant adduced evidence regarding Ex.B-2 Will. No finding was given. Merely lesser quantity of property was conveyed under Ex.A-1 it cannot be said that Ex.A-1 is genuine one. On perusal of Ex.A1 there is interpolation and the thumb mark was obtained at a distance. The lower Court held that 1st defendant is the adopted son of Lovaraju and the adoption has no bearing as the property is claimed by virtue of Ex.B-2. The attestors of Ex.A-1 are related to the plaintiff and PW-6 is not an attestor though he claims that he was present. The evidence on record shows that due to shivering Venkata Rao could not put his signature on Ex.A-1. Without giving finding about Ex.B-2 Will a finding cannot be given regarding Ex.A-1. Even PW-1 stated that Venkata Rao was suffering from Ayasam till his death. Ex.B-3 medical certificate shows that he was not in a sound state of mind and that suspicion is to be removed by the plaintiff. The judgment shows that defendants filed petition to take coercive steps, but they could not produce the doctor. Only after deciding the validity of Ex.A-1 and Ex.B-2, then only the question of declaration and relief of possession will arise. Regarding the alleged compromise, there is no pleading and so the compromise need not be considered. D-1 already filed ATC and he is claiming tenant. But finding in issue of recovery of possession will be based on the finding of genuinity of Ex.A-1 or Ex.B-2. The lower Court should have summoned the doctor who issued Ex.B-3 as Court witness as Ex.B-3 is crucial document. From the above discussion, I hold that the matter is to be remanded to the lower Court as no issue was framed in respect of Ex.B-2 Will”. Aggrieved thereby, the present C.M.A. is filed. Learned counsel for the appellant-plaintiff strenuously contended that absolutely there was no necessity for remanding the matter for re-consideration even for the issues mentioned in the judgment of the lower appellate Court and the remand is contrary to Rules 24 and 25 of Order 41 CPC and amounts to allowing the respondents-defendants to fill up the lacunae in their evidence. The testator Venkatrao executed, in all, five Wills during his lifetime, bequeathing his property to various people. However, we are concerned only with three Wills, namely, Ex.A-1 executed on 18.2.1997, Ex.A-5 executed on 30.12.1996 and Ex.B-2 executed on 20.2.1995. Exs.A-5 and A-1 were executed in favour of appellant- plaintiff. Ex.B-2 was executed in favour of defendants 3 and 4. Ex.A-1 is an unregistered document and Exs.A-5 and B-2 are registered documents. In Ex.A-1, there is a mention as to cancellation of Ex.A- 5 dated 30.12.1996, whereas, in Ex.A-5, there is no mention as to the cancellation of Ex.B-2 dated 20.2.1995 executed in favour of D-3 and D-4. Learned counsel for the appellant, however, stated that there is some mention as to cancellation of the earlier Will Deed in Ex.A-5, but that was struck off and no details are available. However, it must be deemed that the earlier Will Deed i.e. Ex.B-2 stands cancelled. Any Will Deed executed must satisfy two tests, 1) the executant must reserve his power to cancel the Will Deed executed and 2) Will Deed must recite that it comes into effect after death of the executant. These recitals were absent in Ex.B-2 and, therefore, it must be deemed that in the teeth of Exs.A-5 and A-1, Ex.B-2 does not exist under the law. In case Ex.A-1 is disbelieved, Ex.A-5 can be acted upon. Under Ex.B-2, appellant is given the remnant portion of the property. All the three Wills were admitted by the plaintiff. Assuming that Ex.A-1 is not proved, Ex.A-5, which is a registered document dated 30.12.1996 must be deemed to have revived or existing. Therefore, the lower appellate Court was not right in remanding the matter to frame an issue relating to genuineness of Ex.B-2 Will and to give finding on both the Wills (Exs.B-2 and A-1) and then to decide the other issues. PWs 2 to 4 are the attestors of all the documents and PW-5 is the scribe. Therefore, since the entire evidence is available on record even as to deciding whether Ex.B-2 was a genuine Will or not, there was no necessity for remanding the matter for re-consideration. Thus, the reasons furnished by the lower appellate Court justifying the remand are all perverse and erroneous. Learned counsel for the appellant relied upon the following judgments in support of his contentions: 1) Thirumalaiswamy Mudali v. Periasami and another[1], wherein it is held: The plaintiff who is aggrieved by this order has come up in appeal to this Court. Mr. Rama- chandra Iyer for the appellant contends in support of the appeal that the order of remand passed by the lower appellate Court is illegal as it is contrary to the provisions of Order 41 Rule 23 C. P. C. He argues the lower Court acted without jurisdiction in remanding the case without coming to the conclusion that the decision of the trial Court is wrong and that it ought to be set aside. In support of his contention he relies upon two decisions of this Court reported in 'Agneswaraswami Devastanam v. Govinda Pandithan', (1948)2MLJ413 and 'Ariangavu Pillai v. Nallamangai Ammal', (1950)2MLJ370 . There seems to be considerable force in the argument of Mr. Ramachandra Iyer. The power of an appellate Court to remand is contained in Order 41 Rule 23 as amended in Madras. "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case the Appellate Court may by order remand the case and may further direct what issue or issues shall be tried in the case so remanded and shall send copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand". It is seen that this rule lays down the circumstances under which an appellate Court can remand a case to the trial Court. So, to justify an order of remand, the conditions specified therein should be fulfilled. It is open to the appellate Court to remand the case to the trial Court in the interests of justice only when it finds it necessary to reverse the decree for justifiable reasons. 6. In the present case the order of remand is made not because the subordinate Judge, was of opinion that the decision of the trial Court is wrong on merits and ought to be set aside and the interests of justice required that the suit should be re-heard but because it was his view that it was better to send the case back to the trial Court for the purpose of taking full evidence "as there is lacuna to the evidence with reference to this portion of the case". I do not think this is permissible under the provisions of Order 41 Rule 23 of the Civil Procedure Code. It may also be noted that there is no basis either in the pleadings or in evidence for the case which, the learned Judge thought required elucidation. The plea that a sale of the judgment-debtor's property in enforcing the security could not be validly held after the third party surety had deposited the amount of the security bond was deposited was not put forward In the written statement, nor was any issue raised about it, nor any evidence bearing on that question let in. No attempt seems to have been made even in the lower appellate Court to put forward that contention and substantiate it. 7. In this context, two rulings of this Court were cited by Mr. Ramachandra lyer for the appellant. It has been laid down by Horwill J. both in 'Agneswaraswami Devastanam v. Govinda Pandi- than', MANU/TN/0265/1948 : (1948)2MLJ413 and 'Ariangavu Pillai v. Nallamangalammal', MANU/TN/0360/1950 : (1950)2MLJ370 that the Court of appeal can remand a case to the trial Court only when it finds it necessary to set aside the decree on the material placed before it. I express my agreement with the view taken by the learned Judge in both the decisions. It follows that an order of remand made without coming to the conclusion that the decision of the trial Cout is wrong and is illegal and has to be set aside. 2) Middi Ramakrishna Rao v. Middi Rangayya and Ors. [2] (The said judgment was followed in 1955 ALT Reports (Civil) page 695 and also in 1958 An.W.R. Page 355), wherein it is stated: “Under the Madras Amendment of Order 41, Rule 23 the discretion of the court is unfettered; but that discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. The appellate Court should not however rashly and without sufficient cause, order retrial in any case in which this can possibly be avoided; a remand order should not thus be made under this rule in a case which could efficiently be dealt with under Rule 25; nor can a remand be ordered so as to enable a party to fill up the lacuna in his case. It has been repeatedly held by this court that a remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a court to come to a definite finding on the point in issue, is not sufficient to enable the court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury. 5. These principles are deducible from - 'Mallappa Chettiar v. Alagiri Naicker', AIR 1931 Mad 791 (A); - 'Kunha Mina Umma v. Kunhi- p u rth u n ma ' : AIR1935Mad715, 'Bhagavat SasLrulu v. Lakshmikantam1, AIR 1940 Mad 511 (C); - 'Mannarayana Charyulu v. Bhavanachar- yulu', AIR 1948 Mad 348 (D); - 'Chithiah Muda-liar v. Govinda Pandithan', AIR 1949 Mad 394 (E). The provisions of Order 41, rule 23 are not intend- ed, as pointed out by Mack J. in - 'Puchamma v. Bamasitamma' : AIR1954Mad191 , to circumvent the provisions of Order 41, rule 27, C. P. C. nor by merely using the formula "in the interests of justice" can an otherwise unjustifiable remand be clothed with an air of legality, because the judg- ment must show that the conditions of the rule have been fulfilled before the extraordinary powers conferred on the appellate court are used, as points ed by Rajamannar J. (as he then was) in - 'Koya-kutti v. Kunhali', AIR 1946 Mad 203 (G). In other words, the order of remand made without coming to a conclusion that the decision of the trial court is wrong and that it is necessary to reverse or set aside the decree is illegal, as has been pointed out by Horwill J. in - 'Veeramma v. Lakshmayya', AIR 1948 Mad 488 (H); in - 'AIR 1949 Mad 394 (E)' and in - 'Ariangavu Pillai v. Nallamangal Ammal' : (1950)2MLJ370 and cited with approval and followed by Chandra Reddy J. in - 'Thiru-malaiswamy Mudali v. Periasami Mudali' : AIR1952Mad66 . 6. The order of remand by the lower court cannot be supported, and it is hereby set aside, and the present learned subordinate Judge is directed to re-admit this appeal on his file in its original number and dispose of it according to law. The costs of this appeal will abide and follow the result”. 3) Boppa Siva Basavayya and another v. Indukuri Venkataramaraju[3], wherein it is held: “Remand cannot be utilized for the purpose of filling in gaps or lacunae. If the material is not adequate or sufficient to support either the plaintiff or the defendant, it does not become the duty of the Court to direct further enquiry into the facts. In the interests of justice if the Court thinks that some witness must be examined or measurement taken, it has ample power under Order 41, rule 27 or rule 25 but that is quite different than utilizing the power of Order 41 rule 23 of remand”. 4) Kollapudi Sriramulu v. Kollapudi Venkata Radhakrishna Murthy & another[4] wherein it is stated: “The order of remand made without coming to a conclusion that the decision of a trial Court is wrong and that it is necessary to reverse or set aside the decree, is illegal. The appellate Court has to consider the evidence on record and then to arrive at a conclusion whether the finding recorded by the trial Court cannot be supported on evidence on record. Then the further question to be considered is whether it is a case for remand. In that behalf, conduct of the parties has to be considered viz., whether they have sufficient opportunity to adduce evidence at the trial but not brought on record, if not, whether it would be a case to afford such an opportunity”. 5) A. Ramaiah & another v. Pedda Sayanna Sailoo (died) and others[5] wherein it is held: “Rules 23 and 23-A of Order 41 CPC deal with the remand of case by appellate Court. Rule 23 applies to a situation where the suit was disposed of upon a preliminary point and the decree is reversed in appeal while Rule 23-A deals with the case when the suit was disposed of by the trial Court otherwise than on a preliminary point and the decree is reversed on appeal. It is only after the judgment of the trial Court has been reversed on merits. When the question of relief falls for consideration, if the appellate Court comes to the conclusion that retrial is necessary, then it can remand the case”. 6) Kolasani Ramulu (died) per L.Rs. v. Jagarlamudi Radhakrishna Murthy and Ors.,[6] wherein was held: In the instant case, a reading of the impugned judgment makes it clear that the lower appellate court, without considering the ingredients of Order XLI Rules 23 and 23-A of Code of Civil Procedure, remanded the matter to the trial court for fresh disposal in order to meet the ends of justice. There is no discussion whatsoever of the evidence on record. Admittedly, the trial court disposed of the suit on merits and not upon the preliminary point and as such, the lower appellate court has to dispose of the appeal on merits. In fact, the trial court after appreciation of evidence on record held that Ex.A-4 dated 06-07-1971 is valid and the plaintiff is entitled to recovery of possession from defendants 4 to 6 and accordingly dismissed the suit against defendants 1 to 3. In these circumstances, the lower appellate court has to decide the appeal on merits. 7) Jagarlamudi Rosaiah S/o. Venkanna v. Daggubati Venkanna S/o. Anjaiah[7] wherein it was held: On a careful reading of the evidence available on record and also the findings recorded by the Court of first instance, it is clear that both the parties had proceeded with the trial having understood their respective stands clearly and in the light of the same, the mere framing of issue No. 1 in a particular form had not caused any prejudice to the respondent-defendant. 8) Pasupuleti Venkateswarlu v. The Motor & General Traders[8] wherein it is held: “The appellant, a landlord of a large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. The former resolved to start a business in automobile spares and claimed eviction of the respondent by Rent Control proceedings, under Section 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The petition was resisted and the Rent Controller dismissed the petition. The appeal by the landlord failed but, in revision, the High Court chose to remand the case to the appellate authority. The litigation lengthened further because the latter, after