Allowed

Akbar Ali v. Mohammed Farook

Kerala HC21 Oct 2021FAO/70/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal challenging a partition decree passed on a compromise where a sharer remained ex parte. The court held that a compromise decree is incomplete and bad in law if not signed by all sharers, regardless of whether they remained ex parte in the appeal. The compromise decree was set aside and the matter remanded to allow the excluded party to participate.

What did the court decide?

The compromise decree of the first appellate court was set aside. The appeal was allowed and the matter was remanded to the first appellate court to proceed according to law.

Akbar Ali Vs Mohammed Farook — Partition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 21^ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943

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FAO NO. 70 OF 2020

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AGAINST THE ORDERS DATED 28/5/2020 IN I.A NOs.175/2019 AND

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176/2019 IN AS 102/2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD

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APPELLANT/PETITIONER/RESPONDENT NO.10:

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AKBAR ALI,S/O LATE T.M. ABDUL KARIM, AGED 74, HAZEENA FASHION CENTRE, KALPATTA, WAYANAD DISTRICT

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BY ADVS. SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.JOPHY POTHEN KANDANKARY

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RESPONDENTS/RESPONDENTS/APPELLANT & RESPONDENTS NO.1 TO 9, 11 &

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12:

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1 MOHAMMED FAROOK, AGED 62, S/O LATE TM ABDUL KARIM, RESIDING AT TAVARTHU HOUSE, KOZHIKKADA, THATHAMANGALAM POST, CHITTUR TALUK, PALAKKAD DISTRICT-678 102.

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2 KHADEEJA BEEVI, AGED 87, W/O LATE T.M. ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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3 MOHAMMED ISMAIL, AGED 58, S/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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4 ASHRAF ALI, AGED 47, S/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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5 SIRAJUDHEEN, AGED 62 YEARS S/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503

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F.A.O.No.70 of 2020

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6 FOUZIYA, AGED 50, D/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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7 SHAKEENA, AGED 39, D/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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8 MOHAMMED MUSTHAFA, AGED 56, S/O LATE TM ABDUL KARIM, EDAYANKOLAMBU KALAM, KOZHIKKADA, PUDUNAGARAM POST, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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9 SOWRA, AGED 68, D/O LATE T. ABDUL KARIM, RESIDING AT ABBAZ MANZIL, MANJAKULAM, PALAKKAD-678 014.

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10 NOORJAHAN, AGED 59, D/O LATE T.M. ABDUL KARIM, RESIDING AT MOOPAN STREET, METTUVALAVU, THATHAMANGALAM POST, CHITTUR TALUK, PALAKKAD DISTRICT-678 102.

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11 SALUDHEEN,AGED 50 YEARS S/O ABDUL RAZAcK, THEKKATHIYAVATARAM, PUDUNAGARAM AMSOM AND POST, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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12 SHAMEER, S/O NIJAMUDHEEN @ GUSTHI MUTHU, PUDUNAGARAM AMSOM AND POST, CHITTUR TALUK, PALAKKAD DISTRICT-678 503.

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BY ADVS.

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SRI.RAJESH SIVARAMANKUTTY FOR R4, R5 & R7 SMT.K.VIJINA FOR R4, R5 & R7 SMT.MARIAN G.M.THARAKAN FOR R10

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON

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21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.No.70 of 2020

JUDGMENT

The legality and sustainability of a decree for partition based on a compromise arrived at by the parties in exclusion of a sharer, who remained ex parte in the suit came up for consideration at the instance of the appellant, who was the 10^th respondent in the first appellate court.

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It was in the first appellate stage, the

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respondents 1 to 9 and the appellants entered into a compromise without the juncture of 10^th respondent and caused to pass a preliminary decree for partition based on it. The applications submitted by the 10^th respondent for re-hearing of the appeal and to

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condone the delay ended in dismissal before the first appellate court.

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partition cannot be maintained unless all the sharers were made parties to the proceedings. The very same

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F.A.O.No.70 of 2020

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principle is applicable in the matter of a decree that can be passed based on a compromise of the dispute involved in a partition suit. Unless the

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compromise is signed by all the sharers, who are parties to the suit, the court cannot accept the compromise or to pass a decree based on it. The court

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is duty bound to verify and ascertain whether the compromise is signed and accepted by all the sharers, otherwise, it would stand incomplete and bad in law. The fact that one of the sharers remained ex parte does not itself empower or authorise the remaining parties to the suit for partition to conclude the suit by entering into a compromise, without his/her juncture. There is no limitation in the exercise of jurisdiction to adjudicate the dispute involved in a suit even if some of the respondents/defendants remained ex parte. But the legal position would be

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different in the matter of a decree that can be passed based on a compromise, especially in a suit for partition, wherein the sharer, who remained ex

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F.A.O.No.70 of 2020

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parte must also join as a party to the compromise to effectuate it. A compromise lawfully entered into and signed by all the sharers including the sharer, who

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remained ex parte alone can be accepted to pass a

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valid decree of partition on it, otherwise, the compromise decree would stand not binding on the sharer who remained ex parte. Virtually, it would stand incomplete and bad in law. Though it is within the jurisdiction of the first appellate court to hear and dispose of the appeal on merits without hearing the sharer, who remained ex parte, the same principle cannot be adopted in the matter of a decree that may be passed based on a compromise. There are material differences in the jurisdiction that can be exercised while adjudicating a dispute involved in a suit or appeal from that of the jurisdiction to pass a decree by accepting compromise. In the latter case, there

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cannot be any scope for adjudication, except the question of acceptability of compromise, which would include the jurisdiction to ascertain whether it is

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F.A.O.No.70 of 2020

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lawful and complete. When the compromise is incomplete and bad for non-joinder of all the

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sharers, the court will have no other option, but to proceed with the suit or appeal, as the case may be by rejecting the compromise. The first appellate court is not justified in passing a decree based on the compromise entered into without the juncture of the sharer, who remained ex parte in the appeal. Hence, the compromise decree passed by the first appellate court is liable to be set aside. I do so.

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The applications submitted by the 10^th

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respondent will stand allowed. The matter is remanded back to the first appellate court to proceed further in the matter in accordance with the law in

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force, for which the parties shall appear before that court on 25/11/2021.

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The appeal will stand allowed accordingly.

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JUDGE

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Akbar Ali v. Mohammed Farook

Case brief

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Akbar Ali v. Mohammed Farook

Case brief

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