IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
F.A.O.NO. 46 OF 2021
AGAINST THE ORDER DATED 06.02.2021 IN I.A.NO.6 OF 2020 IN
O.S.NO.106 OF 2020 OF THE SUB COURT, OTTAPPALAM
APPELLANT/PETITIONER/PLAINTIFF:
MUHAMMED SHERIF @ SHERIEFF PUTHAN PEEDIKAKKAL,
AGED 54 YEARS, S/O.LATE AHAMAD KABEER, PUTHAN
PEEDIKAKKAL HOUSE, KULUKKALLUR, MULAYANKAVU POST,
PATTAMBI TALUK, PALAKKAD DISTRICT,
REPRESENTED BY THE POWER OF ATTORNEY HOLDER
ABDULLA SHAHID.P., AGED 20 YEARS, S/O.SHERIEFF
PUTHAN PEEDIKAKKAL, PUTHAN PEEDIKAKKAL HOUSE,
KULUKKALLUR, MULAYANKAVU POST, PATTAMBI TALUK,
PALAKKAD DISTRICT-679 337.
BY ADVS.
R.SREEHARI
P.B.KRISHNAN
RESPONDENTS/RESPONDENT/DEFENDANTS:
1 ABDUL AKBAR,
AGED 46 YEARS, S/O.LATE AHAMMED KABEER,
PUTHAN PEEDIKAKKAL VEETTIL, ERAVATHARA,
MULAYAN KAVU POST, PATTAMBI TALUK,
PALAKKAD DISTRICT-679 337.
2 ABDUL JABBAR,
AGED 42 YEARS, S/O.LATE AHAMMED KABEER,
PUTHAN PEEDIKAKKAL VEETTIL, ERAVATHARA,
MULAYAN KAVU POST, PATTAMBI TALUK,
PALAKKAD DISTRICT-679 337.
2
F.A.O.No.46 of 2021 &
O.P.(C) No.1125 of 2021
BY ADVS.
J.RAMKUMAR
SANTHEEP ANKARATH
THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
24.06.2022, ALONG WITH O.P.(C).1125/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
3
F.A.O.No.46 of 2021 &
O.P.(C) No.1125 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
O.P.(C) NO. 1125 OF 2021
AGAINST THE ORDER DATED 06.02.2021 IN I.A.NO.6 OF 2020 IN
O.S.NO.106 OF 2020 OF THE SUB COURT, OTTAPPALAM
PETITIONER/PETITIONER:
MUHAMMED SHERIF @ SHERIEFF PUTHAN PEEDIKAKKAL
AGED 54 YEARS, S/O.LATE AHAMAD KABEER, PUTHAN
PEEDIKAKKAL HOUSE, KULUKKALLUR, MULAYANKAVU
POST, PATTAMBI TALUK, PALAKKAD DISTRICT,
REPRESENTED BY THE POWER OF ATTORNEY HOLDER
ABDULLA SHAHID P., AGED 20 YEARS, S/O.SHERIEFF
PUTHAN PEEDIKAKKAL, PUTHAN PEEDIKAKKAL HOUSE,
KULUKALLUR, MULAYANKAVU POST, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679 337.
BY ADV R.SREEHARI
RESPONDENTS/RESPONDENTS:
1 ABDUL AKBAR
AGED 46 YEARS, S/O.LATE AHAMMED KABEER, PUTHAN
PEEDIKAKKAL VEETTIL, ERAVATHARA, MULAYANKAVU
POST, PATTAMBI TALUK, PALAKKAD DIST. - 679 337.
2 ABDUL JABBAR
AGED 42 YEARS, S/O.LATE AHAMMED KABEER, PUTHAN
PEEDIKAKKAL VEETTIL, ERAVATHARA, MULAYANKAVU
POST, PATTAMBI TALUK, PALAKKAD DIST. - 679 337.
4
F.A.O.No.46 of 2021 &
O.P.(C) No.1125 of 2021
BY ADVS.
J.RAMKUMAR
SANTHEEP ANKARATH
THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
24.06.2022, ALONG WITH F.A.O.NO.46/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
5
F.A.O.No.46 of 2021 &
O.P.(C) No.1125 of 2021
JUDGMENT
Ajithkumar, J.
The plaintiff in O.S.No.106 of 2020 on the files of the Sub Court, Ottappalam, has filed the appeal as well as the original petition. The appeal has been filed under Order XLIII, Rule 1(s) of the Code of Civil Procedure, 1908, challenging the order of the Sub Court dated 06.02.2021 in I.A.No.6 of 2020 in O.S.No.106 of 2020, by which his application for appointment of a Receiver was dismissed. He has filed the original petition invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India seeking to set aside Ext.P6 order dated 06.02.2021 in I.A.No.7 of 2020 in O.S.No.106 of 2020, which he has filed seeking to direct the respondents to pay him share of profits that they earn from two establishments.
2. On 13.07.2021, notice on admission was ordered to the respondents in the appeal. On 12.7.2021 the original petition was admitted. The respondents entered appearance through their learned counsel.
6F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021
3. Heard the learned counsel for the appearing for the appellant/petitioner and the learned counsel appearing for the respondents. The parties to both the appeal and the original petition are the same. They are referred to hereafter as the plaintiff and defendants of respective rank in the suit for convenience.
4. The suit was filed for partition of the plaint schedule properties, injunction and share of profits. The plaintiff claims that all the properties scheduled in the plaint, immovable properties as well as the establishments, are joint assets of himself and defendant Nos.1 and 2. They are joint owners. Their father was also a co-owner, but he is no more. On the basis of the allegations that the plaintiff is being excluded and the profits are not being shared with him, he has filed the suit. Ext.A1 is an agreement entered into between the plaintiff and the defendants agreeing for partition of the plaint schedule properties. Ext.A2 is a copy of the nayakarar dated 19.09.2019, as per which the parties are said to have agreed to share the properties among them and 7 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 execute necessary documents to accomplish the mutual undertakings. I.A.No.6 of 2020 was filed by the plaintiff with the allegations that the defendants were not prepared to act in accordance with Exts.A1 and A2, instead they are appropriating the entire profits generated from the business, especially on the supermarket being conducted by them. The 2nd respondent recently had transferred Rs.30 lakhs from the common account to his personal account. In view of those matters, it is absolutely necessary to appoint a Receiver for the management of the business concern.
5. The defendants, on the other hand, contended that the plaintiff did not have any right in the supermarket business or any right in the properties scheduled in the plaint. The supermarket business is being conducted by a partnership firm to which persons other than the defendants are also partners. The defendants produced Exts.B1 to B3 to show that fact. Their contention is that Exts.A1 and A2 were executed just to satisfy the pious wish of their father when he was bedridden. The said documents were not executed with an 8 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 intention to perform. Thus, they contended that the plaintiff has no right or interest, whatsoever, in the plaint schedule properties.
6. The learned Sub Judge after considering the rival contentions held that on the basis of the materials on record, the plaintiff could not establish even prima facie that he acquired any right in the plaint schedule properties. A view was taken that Exts.A1 and A2, based on which the plaintiff claims right in the properties, are only executory contracts and the plaintiff is not entitled to claim ownership in the property as long as documents are executed in terms of the said agreements.
7. The learned counsel appearing for the plaintiff would contend that the terms of Exts.A1 and A2 are to the effect that the parties, including their deceased father, agreed to have a family arrangement as per terms iterated therein, which the parties concerned are obliged to obey. The materials on record would establish the right of the plaintiff in the properties, and therefore, the Sub Court ought to have 9 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 made some arrangements, possibly by appointment of a Receiver, to safeguard the interest of the plaintiff. The learned counsel would place reliance on the decisions in S.Shanmugham Pillai v. K.Shanmugham Pillai [(1973) 2 SCC 312) and Kale and others v. Deputy Director of Consolidation [(1976) 3 SCC 119] to contend that Exts.A1 and A2 amount to family arrangement and the parties are obliged to honour its clauses. It is contended that the plaintiff was therefore well within his right to claim the interlocutory orders as sought in I.A.No.6 and 7 of 2020.
8. In S.Shanmugham Pillai (supra) the Apex Court held,-
"If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements."
In Kale (supra) the Apex Court held,-
"The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family and create hatred and righting between various members of 10 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 the family. A family arrangements by which the property is equally divided between the various contend are so as to achieve an equal distribution of wealth inspite of concentrated the same in the hands of a few is undoubtedly a mile stone not desirous the social justice. The said arraignment shall be voluntarily and should not be form of any fraud, undue influence or coercion. The agreement may necessarily be in a writing one which may well while be implied from a long court of negotiations."
9. The court below has to decide in the light of the aforesaid legal principle, whether Exts.A1 and A2 constitute a family arrangement and the plaintiff is entitled to claim rights in the property. Questions whether there is a partnership firm and/or whether the plaint schedule properties constitute co-ownership properties may also crop up for adjudication. All such disputes are to be decided in the suit.
10. As pointed out by the learned Sub Judge on the basis of the materials on records, especially in view of Exts.B1 to B3, it cannot be found prima facie that the plaintiff has a right to claim share of profits. We agree with that view. It is the settled law that the Court should not appoint a receiver 11 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. In view of that matter, it is not just or proper in this case to appoint a Receiver for the management of the business establishments scheduled in the plaint. The request for sharing profits also cannot be entertained at this stage. The properties are the subject matter of the suit. If the plaintiff ultimately succeeds in the suit, he certainly will have a share in the properties and will get corresponding share of profits in view of the definite stand taken by the defendants that they are not sharing the profits with the plaintiff. In the said circumstances, we are of the view that the orders impugned in this appeal and original petition are not liable to be interfered with.
The appeal and the original petition are therefore dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr 12 F.A.O.No.46 of 2021 & O.P.(C) No.1125 of 2021 APPENDIX OF OP(C) 1125/2021 PETITIONER EXHIBITS Exhibit P1 PHOTO COPY OF PLAINT IN O.S.NO.106/2020 OF SUB COURT, OTTAPALAM.
Exhibit P2 PHOTO COPY OF PARTITION AGREEMENT DT.
19/9/2019 EXECUTED BETWEEN THE
PARTIES.
Exhibit P3 PHOTO COPY OF NYAYA KARAR DT.
19/09/2019 EXECUTED BETWEEN THE
PARTIES.
Exhibit P4 PHOTO COPY OF THE AFFIDAVIT FILED IN
SUPPORT OF IA 7/2020 IN
O.S.NO.106/2020 OF SUB COURT,
OTTAPALAM.
Exhibit P5 PHOTO COPY OF THE OBJECTION FILED IN
IA 7/2020 IN OS NO.106/2020 OF SUB
COURT, OTTAPALAM.
Exhibit P6 PHOTO COPY OF THE ORDER IN IA 7/2020
IN OS 106/2020 OF SUB COURT, OTTAPALAM DT. 6/2/2021.