[Cites 1, Cited by 0]
Kerala High Court
Aishabi vs Fathima Beevi on 21 January, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
2026:KER:4856
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 21ST DAY OF JANUARY 2026 / 1ST MAGHA, 1947
FAO NO. 84 OF 2025
IA 1/2022 IN RESTORATION PETITION IA 20/2022 IN OS 210/2016
AND IA 1/2020 IN OS 210/2016
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APPELLANTS/PETITINERS/DEFENDANT NO.1,4 & 5:
1 AISHABI,
AGED 89 YEARS,
W/O MADATHIPARAMBIL MAJEED, KULIMUTTAM VILLAGE,
KULIMUTTAM DESOM, KODUNGALLUR TALUK, KULIMUTTAM P.O,
PIN - 680691.
2 SHAHINA @ SHYNA M M,
AGED 42 YEARS,
D/O MADATHIPARAMBIL MAJEED, KULIMUTTAM VILLAGE,
KULIMUTTAM DESOM, KODUNGALLUR TALUK, KULIMUTTAM P.O,
PIN - 680691.
3 SHAFI,
AGED 40 YEARS,
S/O MADATHIPARAMBIL MAJEED, KULIMUTTAM VILLAGE,
KULIMUTTAM DESOM, KODUNGALLUR TALUK, KULIMUTTAM P.O,
PIN - 680691.
2026:KER:4856
FAO NO. 84 OF 2025 -2-
BY ADVS.
SHRI.MANUMON A.
SHRI.REBIN VINCENT GRALAN
SHRI.SURESH C.
SMT.EDATHARA VINEETA KRISHNAN
SMT.ROSNA M. JOY
SMT.GAYATHRI E.S.
SMT.ATHIRA SURESH
SHRI.JOHN CHRISTO T.P.
SHRI.AKSHAY KUMAR C.S.
SMT.LINIYA LOVESON
SMT.ANJALI N.S.
RESPONDENTS/RESPONDENT/PLAINTIFF NO.1, 2 & DEFENDANT NO.2,3:
1 FATHIMA BEEVI,
MADATHIPARAMBIL MOITHEENKUNJU AND
W/O PUTHUVEETTIL SAITHU MUHAMMAD, ERIYAD VILLAGE,
KODUNGALLUR TALUK,
PIN - 680666.
2 KOCHAMI,
D/O MADATHIPARAMBIL MOITHEENKUNJU AND
W/O VALIYAKATH ABDUL KAREEM, KULIMUTTAM VILLAGE, DESOM,
KODUNGALLUR TALUK, PIN - 680666.
3 RAFEEK,
S/O MADATHIPARAMBIL MAJEED, KULIMUTTAM VILLAGE,
KULIMUTTAM DESOM, KODUNGALLUR TALUK, PIN - 680666.
4 SEBEENA,
W/O PUTHUVEETTIL SAGEER, ERIYAD VILLAGE AND
D/O MADATHIPARAMBIL MAJEED, KULIMUTTAM VILLAGE,
KULIMUTTAM DESOM, KODUNGALLUR TALUK, PIN - 680666.
BY ADVS.
SHRI.RASHEEK AHAMED B.A.
SHRI.DINESH G WARRIER
SHRI.HAMDAN MANSOOR K.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
21.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:4856
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O. No.84 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 21st day of January, 2026
J U D G M E N T
Sathish Ninan, J.
The application to set aside ex parte decree, on condonation
of delay of 294 days, was dismissed by the trial court.
Defendants 1, 4 and 5 are in appeal.
2. As per the impugned order the trial court found that
there is no bonafides in the explanation offered by the
appellants-petitioners.
3. We have heard learned counsel on either side.
4. The suit was listed for trial to 12.03.2021. The first
appellant, who is the mother of the other appellants, was
suffering from old age diseases and was unable to appear in
court. The second appellant was in an advanced stage of pregnancy
and on 12.02.2020 she delivered a child. There were some
complications relating to the delivery resulting in health issues
2026:KER:4856
and hence she could not undertake travel to appear in court. The
third appellant was not in station in connection with his
business. Added to the above was the Covid-19 pandemic. All these
prevented the appellants from appearing before the court, is the
explanation given by the appellants for their absence on the day
of trial and for the delay in seeking to set aside exparte.
5. The suit was earlier decreed exparte on 12.12.2019 and on
the application of the appellants, the exparte decree was set
aside. The fourth defendant who is the second appellant had
appeared before the court in the final decree proceedings on
10.10.2021. Appellants 2 and 3 were present at the site when the
Advocate Commissioner visited the property. The present
applications were filed only on 05.02.2022.
6. On the above facts, the trial court was justified in
holding that the explanation offered by the applicants for their
non-appearance, lacks bona fides. Under the circumstances, the
fact that the period from 15.03.2020 to 28.02.2022 stands
excluded from computation of the period of limitation by virtue
of the order of the Apex Court in, In Re: Cognizance For Extension of
Limitation v. [2022 (1) KHC 240] cannot come to the aid of the appellants.
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7. Apart from the above, for yet another reason we find lack
of bona fides in the contention of the appellants. The suit is
one for partition. The plaintiffs, and late Majeed who is the
predecessor-in-interest of the defendants, are siblings. The
properties sought to be partitioned belonged to their mother.
Majeed predeceased the mother. As per the Muslim Law of
Inheritance the legal heirs of a predeceased son is not entitled
for any share from his mother's estate. The defendants claim that
the entire property is bequethed to them under a Will executed by
the plaintiff's mother. Under Muhammadan Law, bequeath cannot be
in respect of more than one third of the estate. Therefore, the
claim for the entire property cannot, in any event, be upheld. In
the plaint the plaintiffs themselves have conceded that though
the defendants are not entitled for any share they are amenable
for granting one third share in the plaint schedule property.
Decree is also passed accordingly. Appellants cannot aspire for
anything more.
8. Learned counsel for the appellants relied on the judgment
of the Apex Court in Commissioner Nagar Parishad, Bhilwara v. Labour Court,
Bhilwara and another [2009 (3) SCC 525], Surendra G. Shankar v. Esque Finamark Pvt. Ltd.
2026:KER:4856
[2025 SCC OnLine SC 134] to contend that, while considering the
present appeal, the merits of the case ought not be gone into. We
make it clear that the disposal of the appeal is not solely based
on the merits of the appellant's claim in the suit, but we have
incidentally looked into the same also in view of the fact that
the suit is of the year 2016 and also the fact that on an earlier
occasion also the exparte decree was set aside and we are
satisfied that the attempt of the appellant is only to protract
the disposal of the suit. The explanation offered by the
appellants for their non-appearance is not acceptable.
In the above circumstances, we do not find any reason to
interfere with the order impugned. The appeal lacks merits and is
dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
2026:KER:4856
APPENDIX OF FAO NO. 84 OF 2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE JUDGMENT OF SUBORDINATE
JUDGE IRINJALAKUDA IN OS 210 OF 2016 DATED
18/03/2021
Exhibit P2 THE TRUE COPY OF RP IA 20/2022 DATED
05.02.2022
Exhibit P3 THE TRUE COPY OF IA 1/2022 IN RP IA 20/2022
DATED 05.02.2022 IN OS 210 OF 2016
Exhibit P4 THE TRUE COPY OF THE COUNTER FILED BY THE 1
&RESPONDENTS/PLAINTIFFS IN RP IA 20/2022 IN
OS 210/2016 DATED 18/05/2022
Exhibit P5 THE TRUE COPY OF THE COUNTER FILED BY THE 1 &
Exhibit P6 THE TRUE COPY OF THE PROOF AFFIDAVIT FILED BY
THE PETITIONER IN RP IA 20/2016 IN OS
210/2016 DATED 21/01/2023
Exhibit P7 THE CERTIFIED COPY OF ORDER IN RP IA 20/2022
AND IA 1/2022 DATED 24.10.2024
Exhibit P8 THE TRUE COPY OF THE FDIA 6/2021 FILED BY THE
1 & 2 RESPONDENTS/PLAINTIFFS DATED 20.07.2021
Exhibit P9 THE TRUE COPY OF THE PLAINT IN OS 210/2016
DATED 20.12.2016
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