High Court of KeralaDivision Bench2022-06-24Appeal and Original Petition dismissed.

Muhammed Sherif @ Sherief Puthan Peedikakkal v Abdul Akbar & Abdul Jabbar

Case / Petition Number:F.A.O No.46 of 2021 & O.P.(C) No.1125 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P. G. Ajithkumar
Judgment Date: 2022-06-24
Court Decision / Holding: The appeal and the original petition are therefore dismissed.
Final Disposition: Appeal and Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

MUHAMMED SHERIF @ SHERIEFF PUTHAN PEEDIKAKKAL

Respondents

ABDUL AKBAR
ABDUL JABBAR

Legal Representation & Advocates

Counsels for Petitioners

• R. Sreehari
• P. B. Krishnan

Counsels for Respondents

• J. Ramkumar Santheep Ankarath

Case Synopsis & Summary

This Kerala High Court judgment arises from an appeal under Order XLIII, Rule 1(s) CPC and a supervisory petition under Article 227 challenging a Sub Court’s order rejecting a Receiver in O.S. No.106 of 2020 (Ottappalam). The plaintiff, Muhammed Sherif, seeks partition of plaint schedule properties and a share of profits from two establishments, arguing that the disputed assets are joint family properties and that Exts. A1 (partition agreement) and A2 (Nyaya Karar) reflect a family arrangement binding on all parties, including their late father who is no more. The defendants/respondents contend that the supermarket business is operated by a partnership with others and that Exts. A1 and A2 were executed merely to fulfill their father’s wishes without creating enforceable rights in the properties; they also produce evidence (Exts. B1–B3) indicating the existence of others in the business. The Sub Judge held that the plaintiff failed to prima facie establish any right in the plaint properties and that Exts. A1 and A2 are executory contracts; he declined to appoint a Receiver and deemed the profit-sharing claim unsustainable at that stage. The High Court, citing S. Shanmugham Pillai and Kale, acknowledges the policy favoring family arrangements but upholds the Sub Judge’s findings; the appeal and O.P. are dismissed, leaving the suit to be adjudicated on merits.

Provisions of Law Cited

Order XLIII, Rule 1(s) of the Code of Civil Procedure, 1908Article 227 of the Constitution of India

Legal Doctrines & Maxims

Doctrine of family arrangements to protect family peace and unity; courts lean in favour of such settlements
Object and scope of a family arrangement to achieve equal distribution and prevent prolonged litigation
Court should not appoint a Receiver unless the plaintiff shows prima facie a strong likelihood of success in the suit; interim relief must be guarded
Writing and voluntariness requirement for family arrangements; arrangements should be free from fraud, undue influence, or coercion

Submissions & Arguments

Contentions of Appellants / Petitioners

The plaintiff contends that Exts. A1 (partition agreement) and A2 (Nyaya Karar) reflect a binding family arrangement obliging the parties, including their late father, to share the family properties and profits from the jointly managed establishments. He argues that the arrangement creates a right in the plaint schedule properties and justifies protective orders such as appointment of a Receiver to safeguard his interests and a claim to profits. Relying on S. Shanmugham Pillai v. K. Shanmugham Pillai and Kale v. Deputy Director of Consolidation, he submits that family arrangements deserve protection and should not be lightly set aside; the Sub Judge’s interpretation that Exts. A1/A2 are executory contracts should be revisited, and at least interim relief should be considered to preserve assets until a full adjudication.

Contentions of Respondents

The respondents contend there is no right in the plaintiff to the plaint properties since the supermarket is operated by a partnership that includes others. Exts. A1 and A2 were allegedly executed only to satisfy the deceased father’s wishes and do not bind the parties; the documents do not establish co-ownership or a right to profits. They rely on the evidence (Exts. B1–B3) showing the involvement of other partners and assert that the Sub Judge properly concluded that the plaintiff has no prima facie case for share of profits or for appointing a Receiver. Therefore, interim relief is unwarranted at this stage and the suit should be decided on its merits without disturbing existing business arrangements.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
S. Shanmugham Pillai v. K. Shanmugham Pillai	(1973) 2 SCC 312	Positive	Used to support the principle that family settlements should be honoured to maintain family peace; courts generally lean in favour of family arrangements.
Kale and others v. Deputy Director of Consolidation	(1976) 3 SCC 119	Positive	Cited for the idea that family arrangements aim at equitable distribution and must be free of fraud or coercion; may be in writing as a formal expression of negotiations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 24[TH] 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 F.A.O. 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 24[TH] 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.7 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. 6 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 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.**||