Kerala High Court
Muhammed Sherif @ Sherieff Puthan ... vs Abdul Akbar on 24 June, 2022
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.
F.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
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
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
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
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
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
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.
