Case Note & Summary
The appellant, Bhagwan Govind Nagre, filed a second appeal challenging the judgment and order dated 06.06.1994 passed by the learned District Judge, Buldhana in Regular Civil Appeal No. 7 of 1992, which reversed the trial court's decree dated 17.12.1991 in Regular Civil Suit No. 188 of 1986. The plaintiff (appellant) had filed a suit claiming that Survey No. 25 and 29/2 of village Maharchikana were his ancestral joint Hindu family properties. He alleged that defendant No.6 (his father) was addicted to drinking and, taking advantage of this, defendants No.1 to 5 (respondents) dispossessed the plaintiff and defendant No.6 from the lands. The dispossession from Survey No. 29/2 occurred on 04.06.1980 and from Survey No. 25 on 10.02.1983. Alternatively, the plaintiff contended that if the properties were not ancestral, the alienations by defendant No.6 were not for the benefit of the joint family and were not binding on him. Defendant No.6 filed a written statement admitting the plaintiff's claim and stating that 4 acres 14 gunthas of Survey No. 29/2 was exchanged with defendants No.1 to 5 for their land Survey No. 25 admeasuring 1 H. 63 Ares, and that in 1983 he executed a sale deed for Survey No. 25 for Rs. 13,000. The trial court decreed the suit, but the lower appellate court reversed the decree. The High Court found that the lower appellate court's judgment did not frame any points for determination as required under Order 41 Rule 31 CPC, and the judgment was cryptic and did not address the core issues. Consequently, the High Court allowed the appeal, set aside the appellate judgment, and remanded the matter to the lower appellate court for fresh disposal in accordance with law, directing the parties to appear on 15.02.2010.
Headnote
A) Civil Procedure Code - Order 41 Rule 31 - Points for Determination - The appellate court must frame points for determination and give reasons therefor; failure to do so vitiates the judgment. The lower appellate court did not frame any points for determination, rendering its judgment unsustainable. (Paras 5-6) B) Hindu Law - Joint Hindu Family Property - Alienation by Karta - The question of whether the suit properties are ancestral joint Hindu family properties and whether the alienations by defendant No.6 were for legal necessity or benefit of the estate requires proper adjudication. The trial court had decreed the suit, but the appellate court reversed without addressing these issues. (Paras 2-4) C) Civil Procedure Code - Remand - When the appellate court fails to comply with mandatory provisions, the matter may be remanded for fresh disposal. The High Court set aside the appellate judgment and remanded the appeal for fresh consideration in accordance with law. (Para 7)
Issue of Consideration
Whether the lower appellate court's judgment is vitiated for non-compliance with Order 41 Rule 31 of the Code of Civil Procedure, 1908, and whether the suit properties are joint Hindu family properties and the alienations by defendant No.6 are binding on the plaintiff.
Final Decision
The second appeal is allowed. The judgment and order dated 06.06.1994 passed by the learned District Judge, Buldhana in Regular Civil Appeal No. 7 of 1992 is set aside. The matter is remanded to the lower appellate court for fresh disposal in accordance with law. The parties are directed to appear before the lower appellate court on 15.02.2010.
Law Points
- Order 41 Rule 31 CPC
- Joint Hindu Family Property
- Alienation by Karta
- Remand
