The appellate court can directly issue a partition decree without remanding when evidence is sufficient, especially when a trust has been lawfully revoked.

1. The instant appeal has been preferred by the plaintiffs/appellants against the order of remand vide judgment and decree dated February, 12th 2014 passed by the learned Additional District Judge, 14th Court, Alipore, in T.A No. 126 of 2012. By the order impugned learned Court below modified the judgment and decree dated 26th April, 2012 passed by learned Civil Judge (Senior Division) 7th Court, Alipore, in T.S. no. 86 of 2005 and thereby ordered to send the matter before the Trial court on restricted remand as if it is a partition suit to mould the Relief to the parties.

2. The background of the case is that the father of the parties namely Sudhangshu Sekhar Dhara (since deceased) executed an alleged family settlement dated 6th July 1992 and distributed his property among his sons and daughters and retained one portion under his ‘khas’ possession. In the said deed it was specifically mentioned that aforesaid Sudhangshu would enjoy the property as trustee and after his demise the trust would be dissolved and the beneficiaries would get their portion absolutely.

Subsequently on January, 3rd 1996, said Sudhangshu executed a deed of revocation, thereby cancelled and revoked the aforesaid deed of settlement dated 6th July, 1992.

3. The plaintiffs being some of the sons and daughters of said Sudhangshu filed aforesaid T.S. No. 86 of 2005, interalia seeking for declaration of their absolute right title interest in the suit property in terms of settlement as mentioned in the schedule to the plaint and also for cancellation of the aforesaid deed of revocation dated January, 3rd 1996.

4. The defendant no. 1, 2 and 4 contested the said suit by filing written statement denying all material allegations brought by the plaintiff in the plaint. The specific case of the defendants is that the deed of settlement executed by Sudhanghsu does not exist, following the deed of revocation and therefore the question of allotment as per deed of settlement does not arise and that now the parties are governed by the Successions Act and accordingly they prayed for dismissal of the suit.

5. Learned Trial Court by a judgment and decree dated 26.04.2012 dismissed the aforesaid suit observing that the deed dated 6th July, 1992 is basically a deed of trust created by will. Being aggrieved by the aforesaid judgment and decree the plaintiffs preferred appeal before the District Judge, Alipore being T.A. No. 126 of 2012. Learned Appellate Court after hearing the parties was pleased to affirm the ultimate conclusion recorded by the Trial court, but held that the reasons thereof are not at all sustainable. Therefore, the court below invoking it’s jurisdiction under order XLI. Rule 33 of Code of Civil Procedure was pleased to modify the decree directing the learned trial judge to proceed with the suit in order to divide the suit property among the parties to the suit by metes and bound as if the suit is one for partition to pass a preliminary decree, declaring respective shares of all the parties to the suit according to the rule of succession applicable to the parties. Therefore Court below sent back the suit on restricted remand to the trial court with the direction to pass a preliminary decree for partition in respect of the entire suit property covered under the deed of settlement according to the share of the parties and also to proceed to pass a final decree of partition in accordance with law, if amicably partition could not be effected by metes and bounds by the parties.

6. The plaintiffs/appellants being aggrieved by the said order of remand prefe