Mini vs Rajakumary
2021 Latest Caselaw 21651 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     TUESDAY, THE 2nd DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                       FAO (RO) NO. 30 OF 2019
AGAINST THE JUDGMENT OF REMAND DATED 17.01.2019 IN AS No. 190/2016 OF
                II ADDITIONAL DISTRICT COURT - KOLLAM
AGAINST THE JUDGMENT AND DECREE DATED 30.08.2016   IN O.S.No. 184/2010
                   OF MUNSIFF COURT, SOUTH PARAVUR
APPELLANTS/ADDL.RESPONDENTS 4 TO 6/LRs OF THE PLAINTIFF IN OS:

     1     MINI, AGED 42 YEARS,
           W/o PRASANNAN, PRANAVAM,
           KURUMANDAL CHERRY, PARAVUR VILLAGE, KOLLAM.

     2     PRANAV, AGED 17 ,
           S/o PRASANNAN, PRANAVAM,
           KURUMANDAL CHERRY, PARAVUR VILLAGE, KOLLAM.

     3     PRINCE, AGED 12 YEARS,
           S/o PRASANNAN, PRANAVAM,
           KURUMANDAL CHERRY, PARAVUR VILLAGE, KOLLAM.

           BY ADVS. SUMATHY DANDAPANI (SR.)
                    MILLU DANDAPANI


RESPONDENTS/APPELLANTS AND RESPONDENTS 2 & 3/DEFENDANTS:

     1     RAJAKUMARY, AGED 52 YEARS,
           W/o AZHAKESAN, ANJALI BHAVAN, THAZHUTHALA CHERRY,
           KOTTIYAM.P.O., ADICHANALLOOR VILLAGE, KOLLAM-691020

     2     AMMINI, AGED 50 YEARS,
           W/o CHANDRABABU, MEENADU NEDUMPANAYIL VEEDU,
           NEDUNGOLAM.P.O., MEENADU VILLAGE, KOLLAM TALUK-691301

     3     VARADARAJAN, AGED 58 YEARS,
           S/o SUKUMARAN, GOKULAM, ANAYARA.P.O, SILVARGIL,
           THIRUVANANTHAPURAM-695029
 FAO (RO) No.30 of 2019                  2




     4         BABU, AGED 48 YEARS,
               S/o SUKUMARAN, KARTHIKA, PARAVUR.P.O.,
               KURUMANDAL CHERRY, PARAVUR VILLAGE,
               KOLLAM-691301

               R1 & R2 BY ADVS. SRI.JOHNSON GOMEZ
                                SMT. KARISHMA JOJO

                                    SMT. GAYATHRI V. NAIR

                                    SMT. LIYA ELZA ALEX

                                    SRI. VIVEK JOSEPH SONY
                                    SRI.S.BIJU (KIZHAKKANELA)
                                    SMT.A.V.INDIRA
                                    SHRI.GAJENDRA SINGH RAJPUROHIT
                                    SRI.A.ABDUL RAHMAN (A-1917)

               R3 & R4 BY ADV. SRI. RAHUL KANDAMPULLY




     THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING   ON    02.11.2021,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 FAO (RO) No.30 of 2019                 3



                                 JUDGMENT

An order of remand was passed by the first appellate

court mainly on three grounds; (i) before the final

argument of appeal, one of the parties passed away and the

legal heirs of deceased were not brought on record and no

opportunity was given in that behalf (ii) Ext.B1 Will was

not proved by summoning the attesting witness for which no

sufficient opportunity was afforded and (iii) there is

failure on the part of the trial court to consider and

adjudicate the counter claim raised in the suit. It appears

that the order of remand is well placed as the impugned

decree cannot be sustained on the abovesaid three grounds,

hence the order of remand reflects proper application of

law. The appeal fails, dismissed.

Sd/-

P.SOMARAJAN JUDGE DMR/-