Dismissed

Jafar Sadique, v. P.V. Abdul Khader

Kerala HC4 Oct 2021OP(C)/1233/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a petition to reopen a preliminary decree in a partition suit. The petitioner, a legal heir excluded from the original suit, sought reopening to support a respondent's claim that the property was non-partible burial ground. The Court held the remedy lay in challenging the underlying documents in a separate suit, not collaterally.

What did the court decide?

The original petition for reopening the preliminary decree is dismissed.

Jafar Sadique, Vs P.V. Abdul Khader — Partition | Kerala HC (2021)

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OP(C).1233/2020

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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 V.G.ARUN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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OP(C) NO. 1233 OF 2020

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AGAINST THE ORDER/JUDGMENT IN OS 434/2013 OF PRINCIPAL SUB COURT, KOZHIKODE, KOZHIKODE

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PETITIONER/S:

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JAFAR SADIQUE, AGED 60 YEARS S/O. SEETHI, SWATHI HOUSE, POST FEROKE COLLEGE, KARINKALLAI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673632.

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BY ADVS. M.R.MINI SRI.VINOD RAVINDRANATH SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR

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RESPONDENT/S:

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1 P.V. ABDUL KHADER, AGED 56, S/O. AHAMMED KOYA THANGAL, RESIDING AT AKHITHAZHATH HOUSE, KIZHAKKOTH AMSOM, KODUVALLY DESOM, KOZHIKODE DISTRICT-673572.

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2 SUHARA C., AGED 65, D/O. C. SEETHI, 5/9766A, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673006.

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3 MARIYAM, AGED 59, D/O. SEETHI, 5/976A, CHEROOTTY NAGAR

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OP(C).1233/2020

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HOUSING COLONY, PUTHIYARA POST, KASABA AMSOM DESOM, KOZHIKODE-673004.

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4 C. SALEEKATH, AGED 54, D/O. SEETHI, 5/976A, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673006.

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5 C. KAMARUNNISA, AGED 52, 5/976A, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-676006.

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6 C. HASHIM, AGED 46, S/O. C. SEETHI, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-676006.

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7 FIJUL KOMU,

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AGED 40 YEARS, S/O. A. KOMU, PLOT NO.12, CHEROOTTY NAGAR HOUSING COLONY, PUTHIYARA P.O., KASABA AMSOM AND DESOM, KOZHIKODE-673004.

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8 B.C. ABDURAHIMAN, AGED 77, S/O. AHAMMED, GENERAL SECRETARY, JAMAIYYATHU ATHBAYI NAKSHA BANDHIYA,REG. NO.37/1983, KIZHAKKOTH, KIZHAKKOTH AMSOM, KODUVALLY DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT-673603.

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9 C. JASMIN, AGED 40, W/O. SHAHUL HAMEED, THADATHIL HOUSE, ABDURAHIMAN NAGAR AIRPORT ROAD, KOLAPPRUAM, MALAPPURAM DISTRICT-673603.

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R1 TO R7 BY ADVS. SRI.A.KOMU

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SRI.T.B.SIVAPRASAD

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R8 BY ADV.

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SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER

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OP(C).1233/2020

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OTHER PRESENT:

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ADV.T.KRISHNANUNNI (SR) FOR THE PETNR.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.7.2021, THE COURT ON 04.10.2021 THE DELIVERED THE

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FOLLOWING:

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OP(C).1233/2020

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V.G.ARUN, J.

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O.P(C).No.1233 of 2020

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Dated this the 4^th day of October, 2021

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JUDGMENT

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The petitioner is aggrieved by the rejection of his application for reopening the preliminary decree in O.S.No.434 of 2013 of the Subordinate Judge’s Court, Kozhikode. The suit was filed for partition of plaint C schedule properties belonging to late Fathima Beevi. The plaintiffs are the legal heirs of Fathima Beevi and the first defendant is a religious Society. The defendant Society acquired right in the property by virtue of a settlement executed in its favour by one of the legal heirs. The petitioner, though a legal heir, was not arrayed as a party to the suit, since he had assigned his right in the property by way of registered settlement deed No.119 of 2007 of Kozhikode SRO and document No.1218 of 2007 of Koduvally SRO. The suit was decreed on 23.2.2018, setting apart specified shares to the plaintiffs and the first defendant. In the final decree application (FDIA No.1241 of 2018), the petitioner was arrayed as the 3^rd respondent in his capacity as legal representative of the deceased 7^th plaintiff. On being impleaded, the petitioner filed I.A.No.1535 of 2019 seeking to reopen the preliminary decree, contending that his father, who

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OP(C).1233/2020

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was the 7^th plaintiff in the suit, had expired before pronouncing the judgment and therefore, the judgment and decree, with a dead person on the party array, is invalid. It was also contended that the petitioner’s independent right over the property is still subsisting since the documents, by which the petitioner is alleged to have transferred his right, were executed without his knowledge and concurrence. The petitioner sought reopening of the preliminary decree, not for the purpose of augmenting his share, but to lend support to the contention of the 1^st respondent that the property is not partible, being the burial ground of the religious sect represented by the Society.

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As far as the contention that the suit was decreed with a dead person on the party array, it is pertinent to note that the 7^th plaintiff had died after hearing of the suit. As such, the suit would not abate in view of Order XXII Rule 6. The next contention is regarding petitioner's subsisting right in the properties and having deliberately been excluded from the array of parties. As rightly held by the court below the remedy, if any, of the petitioner is to challenge the power of attorney and the settlement deed in an appropriately constituted suit and not by way of a collateral challenge in the final decree proceedings. The law on this point is well settled by the decisions of the Apex Court in Sardar Surjeet Singh v. Juguna Bai and Others [2017 Legal Eagle (SC) 1673] and of this Court in Ankkayam Puliyil

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OP(C).1233/2020

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Juma-Ath Palli v. V.P.Abdulla and Others [2012 (2) KHC 283] .

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The petitioner is seeking to get the preliminary decree reopened, so as to lend support to the contentions of the 1^st defendant that the property is not partible. The trial court has noted that some of the defendants had filed appeal against the preliminary decree and the petitioner had preferred a cross appeal raising the same grounds urged in the application for reopening the preliminary decree. That, the appeal and the cross appeal were dismissed and hence, the contention cannot be urged again. I am in agreement with the said finding. In any event, the preliminary decree in a partition suit cannot be reopened for enabling a person to contend that the decree scheduled properties are not partible.

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For the aforementioned reasons, the original petition is dismissed.

Sd/-

V.G.ARUN, JUDGE

vgs

OP(C).1233/2020

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APPENDIX OF OP(C) 1233/2020

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 19/11/2013 IN OS NO.434/2013, ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KOZHIKODE. EXHIBIT P2 TRUE COPY OF THE DECREE DATED 23/02/2018 PASSED IN OS NO.434/2013, ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KOZHIKODE. EXHIBIT P3 TRUE COPY OF IA 1535/2019 DATED 21/08/2019 IN FD IA 1241/2018 IN OS 434/2013 DATED 21/08/2019 ON THE FILES OF THE ADDITIONAL SUB COURT-I, KOZHIKODE. EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 18/09/2019 FILED IN IA 1535/2019. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 08/11/2019 IN IA 1535/2019 IN FD IA 1241/2018 IN OS 434/2013 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF KOZHIKODE.

Jafar Sadique, v. P.V. Abdul Khader

Case brief

What is this about?

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Jafar Sadique, v. P.V. Abdul Khader

Case brief

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