The central legal point established in the judgment is the application of Muslim law Section 301 and the interpretation of Rule 23 and Rule 23A of Order 41 C.P.C. in the context of the case.

1. Heard learned counsel for the parties.

2. This miscellaneous appeal has been filed against the judgment and decree dated 08.09.2010 passed by learned Additional District Judge-cum-F.T.C.-V, Buxar passed in T.A.No.09 of 2008.

3. The plaintiff-Sakina Banoo (respondent No.1 herein) had filed T.S.No.175 of 2000 for a decree of declaration that three deeds of gift dated 10.06.1985, executed by Mostt. Jainab Khatoon in favour of defendant 2nd set and defendant 3rd set of the suit, were fictitious, inoperative and invalid documents.

4. The suit was dismissed by the learned trial court by judgment and decree dated 24.12.2007. The dismissal was challenged in T.A.No.09 of 2008 which was heard by learned Additional District Judge of Fast Track Court, Buxar and the learned Judge set aside the dismissal of the suit and allowed the appeal. Simultaneously, the learned lower appellate court remitted back the matter to the learned trial court for fresh judgment and decree. The order of remand has been challenged herein by the defendants of the suit under Order 43 Rule 1 (U) of the Code of Civil Procedure. Before considering the merit of the order of remand, it would be apt to reproduce the finding of the learned lower appellate court which is contained in last two paragraphs of the judgment only.

“The provision laid down in Muslim law Section 301 provides the right of a widow to retain possession of her husband property under a claim for her dower without the right to alienate the property by sale, mortgage, gift or otherwise if she alienates the property the alienation is valid to the extent of her dower….. it does not effect the share of other heirs of her husband. So in such circumstances whatever Jainab Khatoon has executed deed of gift for her own share in favour of appellant family is correct and valid and she has no right to execute her three deed of gift in favour of defendants. She has no valid right to execute the alleged three deed of gift so the alleged three deed of gift is void document having no rightful at all and the learned lower court has wrongly decided the issue No.VI, VII and VIII against the plaintiff/appellant.

Thus considered the oral evidence as well as documentary evidence of both parties and also considered the document of both parties. I come to conclusion that argument of appellant has much force so the appeal is fit to be allowed and hence it is allowed and judgment and decree dated 24.12.2007 and 12.01.2008 is set aside and the case is remanded back to the learned lower court to pass fresh judgment and decree in favour of plaintiff/appellant and take necessary action for cancellation of three deed of gift as alleged by contesting defendants.”

5. Rule 23 and Rule 23A of Order 41 C.P.C. deals with the cases wherein the learned appellate court can remand as follows:

“23. Remand of case by Appellate Court- 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, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit 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.

23-A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.”

6. This matter is not directly covered by Rule 23 for the reason that the suit was not decided on any preliminary point and the decree of reversal is on