High Court of KeralaSingle Judge2011-01-03Dismissed

Valiyakath Kunhamina and others v. Abdul Razak and others

Case / Petition Number:CRP.No.1869 of 1999 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N. Krishnan, J.
Judgment Date: 2011-01-03
Court Decision / Holding: DISMISSED
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Valiyakath Kunhamina
Nazema
Asma
Zuhara
Noushad
Shemna
Shainy
Ashitha
Arshad
Anez
Reema
Remiz
Ramla
Asgar
Saliha
Muneera
Sumiyya
Shabeer
Shemirin
Saddaf
Nameer
Mubash
Lezia
Ayesha
Najma
Janeesh
Jaishil
Hyder Ali

Respondents

V Abdul Razak
M.C. Fathimabi
M.C. Thahira Mazood
M.C. Nishad
Valiyakath Noufal
Shaima
V. Muhamood
V. Rufaida
V. RUBBAYYA
Valiyakath Saru
V. Raheem
V. Saifudeen
V. Shafeer
Shafeela
Shamil
Shajil
Jasleema
Jasna
Sukulum
Pushpalatha (Advocate Commissioner)
Nameer
Mubash
Lezia
Aysha
Najma
Janeesh
Jaishil
Hyder Ali

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Vidhya A.C.

Counsels for Respondents

• Sri K.M. Mohammed Kunhi

Case Synopsis & Summary

This is a Kerala High Court Civil Revision Petition (CRP No. 1869 of 1999) arising from a partition suit (O.S. 240/1993, Sub Court, Thalassery). The suit concerns a property at Kayyath Road, Thalassery, including a house and courtyard. The Commissioner recommended dividing the property into 168 shares and allotting the entire house and courtyard to the group comprising the plaintiffs and defendants 7 to 10 on payment of a specified amount. The petitioners (listed as respondents 1–5, 8–17, 19, 21–27, 29, 32, 40–41 & 43) challenge this plan, contending that a portion of the house and the courtyard should be allotted to them, and that if sale among sharers is contemplated, it should be done by the court in open court rather than by the Commissioner. They also contend that, as a group, they are entitled to 138 of the 168 shares and thus equity requires allotting a larger portion of the property to them. The court notes that the Subordinate Judge’s order was a vague remand (“Heard. Remitted”) without clear purpose, and references the Law’s and practice regarding sales among sharers. It relies on the principle that such sale should occur in open court (citing Anthony Ammal v. Antony) and ultimately sets aside the remand, directing a fresh consideration of I.A.3017/1997 after hearing all parties. The petition is disposed of with a direction to proceed lawfully, and ultimately the revision petition is dismissed.

Provisions of Law Cited

Rule 234 of the Civil Rules of PracticeRule 234(2) of the Civil Rules of Practice

Legal Doctrines & Maxims

Orders can be brief but not blank.
Sale among sharers must be conducted in open court.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the Commissioner’s plan, which allotted the entire house and courtyard to a specific group (plaintiffs and defendants 7–10) after a fixed payment, should be reconsidered. They argued that portions of the house and the courtyard ought to be allotted to them, and that sale among sharers, if required, should be conducted by the court in open court rather than by the Commissioner. They asserted a right to 138 of 168 shares, urging equity to allot a larger portion of the property to their group. They pressed for a re-valuation and for a sale process in accordance with law, not a blanket allotment.

Contentions of Respondents

The respondents supported maintaining the Commissioner’s plan or contending for the appropriate distribution as per traditional partition principles, emphasizing that legal sale among sharers, if necessary, should occur in the court’s open proceedings. They argued that the order of remand by the Subordinate Judge was proper if followed with clear purpose and hearing, and asserted that the partition process must advance with due process and compliance with Civil Rules of Practice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Anthony Ammal v. Antony	1983 KLT 645	Positive	The decision is cited to support the proposition that sale among sharers must be conducted in open court; the court relies on this authority to reject a blanket remand and to insist on a proper in-court sale process.

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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 M.N.KRISHNAN** **MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932** **CRP.No. 1869 of 1999(B)** **-------------------------------------** **I.A.1695/95 IN O.S.NO.240/1993 OF SUB COURT, THALASSERY ...** ## **PETITIONER(S): RESPONDENTS 1 TO 5,8 TO 17, 19, 21 TO 27,29, 32, 40,41 & 43** - **-------------------------------------------------------------------------------------------------------------------** **1. VALIYAKATH KUNHAMINA, D/O.PATHOOTTY, AGED 54 YEARS, VALIYAKATH HOUSE, KAYYATH ROAD, THALASSERY.** **2. ..DO...NAZEEMA, D/O.KUNHAMINA, AGED 35 YEARS,..DO...DO....** **3. ...DO..ASMA, D/O. KUNHAMINA, AGED 33 YEARS, ...DO..DO....** **4. ....DO...ZUHARA, D/O.KUNHAMINA, AGED 31 YEARS,..DO..DO....** **5. ...DO...NOUSHAD, S/O.KUNHAMINA, AGED 25 YEARS, ...DO..DO....** **6. ...DO...SHEMNA, D/O.NAZEEMA, AGED 14 YEARS (MINOR)** **7. ...DO....SHAINY, D/O. NASEEMA (MINOR)** **(MINOR PETITIONERS 6 AND 7 REPRESENTED BY THEIR GUARDIAN AND MOTHER 2ND PETITIONER NAZEEMA)** **8. ..DO....ASHITHA, D/O.ASMA, AGED 13 YEARS(MINOR) ...DO..DO....** **9. ..DO....ARSHAD, S/O.ASMA, AGED 15 YEARS(MINOR)..DO..DO....** **10. ..DO...ANEZ, S/O.ASMA, AGED 6 YEARS(MINOR)...DO...DO.....** - **(MINOR PETITIONERS 8 TO 10 REPRESENTED BY THEIR MOTHER AND GUARDIAN ASMA, 3RD PETITIONER)** **11. REEMA, D/O. ZUHARA, AGED 13 YEARS(MINOR) ..DO...DO....** **12. ...DO...REMIZ, S/O. ZUHARA, AGED 8 YEARS(MINOR) ..DO..DO....** - **(MINOR PETITIONERS 11 AND 12 REPRESENTED BY THEIR GUARDIAN AND MOTHER ZUHARA, 4TH PETITIONER)** **..2/-** **Kss** **...2....** ## **CRP.NO.1869/1999** **13. ...DO... RAMLA, AGED 47 YEARS, VALIYA VILLA, KAYYATH ROAD, THALASSERY.** **14. ..DO....ASGAR, AGED 30 YEARS, .....DO...DO.....** **15. ...DO....SALIHA, AGED 28 YEARS, ....DO...DO.....** **16. ...DO....MUNEERA, D/O.RAMLA, AGED 24 YEARS, ...DO..DO....** **17. ...DO...SUMIYYA, D/O.RAMLA, AGED 18 YEARS,....DO...DO.....** **18. ...DO... SHABEER, AGED 21 YEARS, ...DO...DO.....** **19. ...DO...SHEMRIN, D/O. SALIHA, AGED 18 YEARS, ..DO..DO....** **20. ...DO....SADDAF, D/O.SALIHA, AGED 13 YEARS,...DO...DO....** - **(MINOR PETITIONER 20 REPRESENTED BY HER MOTHER AND GUARDIAN 15TH PETITIONER SALIHA)** **21. NAMEER, S/O.MUNEERA, AGED 12 YEARS (MINOR) ..DO...DO....** **22. MUBASH, S/O.MUNEERA, AGED 10 YEARS (MINOR)..DO..DO.....** **23. ..DO..LEZIA, D/O.MUNEERA, AGED 7 YEARS (MINOR) ..DO...DO...** **(MINOR PETITIONERS 21,22 AND 23 REPRESENTED BY THEIR MOTHER AND GUARDIAN MUNEERA, PETITIONER NO.16)** **24. ..DO...AYSHA, AGED 57 YEARS, RESIDING AT AYSHA MANZIL, POOVALAP STREET, THALASSERY.** **25. ..DO...NAJMA, AGED 33 YEARS, ..DO..DO....** **26. ...DO...JANEESH, AGED 16 YEARS (MINOR),...DO...DO....** **27. ...DO.....JAISHIL, AGED 12 YEARS (MINOR),...DO...DO....** **(MINOR PETITIONERS 26 AND 27 REPRESENTED BY THEIR MOTHER AND GUARDIAN NAJMA, PETITIONER NO.25)** **..3/-** **Kss** **..3....** ## **CRP.NO.1869/1999** **28. V.HYDER ALI, S/O.K.P. SOOPIKUTTY, AGED 49 YEARS, BABY QUARTERS, COURT ROAD, THALASSERY.** **BY ADVS. SMT.VIDHYA. A.C.,** ## **RESPONDENT(S): PETITIONERS 1 AND 3 TO 5, AND R6,7, 18,20,28,30,31,33 TO 39, 42 AND ADVOCATE COMMISSIONER:** **---------------------------------------------------------------------------------------** **1. V.ABDUL RAZAK, RETIRED TEACHER OF B E M P HIGH SCHOOL, KAYYATH ROAD, THALASSERY.** **2. M.C.FATHIMABI, W/O.V.MUHAMMED (RETIRED TEACHER) “THAREEF”, URUVACHAL, KANNUR - 3.** **3. M.C.THAHIRA MAZOOD, D/O.V.MUHAMMED, “THAREEF”, URUVACHAL, KANNUR - 3.** **4. M.C.NISHAD, S/O.V. MUHAMMED, “THAREEF”, URUVACHAL, KANNUR - 3.** **5. VALIYAKATH NOUFAL, AGED 21 YEARS, VALIYAKKATH HOUSE, KAYYATH ROAD, THALASSERY.** **6. ..DO...SHAIMA, D/O. NAZEEMA, AGED 19 YEARS, ..DO..DO....** **7. V.MUHAMOOD, S/O.RAMLA,AGED 24 YEARS, VALIYAKATH VILLA, KAYYATH ROAD, THALASSERY.** **8. V.RUFAIDA, D/O.RAMLA, AGED 22 YEARS, ..DO...DO....** **9. V.RUBBAYYA, D/O. RUFAIDA, AGED 10 YEARS (MINOR)..DO...** **(MINOR RESPONDENT NO.9 REPRESENTED BY GUARDIAN AND MOTHER 8TH RESPONDENT RUFAIDA)** **10. VALIYAKATH SARU, AGED 42 YEARS, DEENA BAKERY, PANDIKKAD ROAD, MANJERI, ERNAD TALUK.** **11. V.RAHEEM, AGED 37, AYSHA MANZIL, POOVALAP STREET, THALASSERY.** **..4/-** **Kss** **CRP.NO.1869/1999** **...4...** **12. V.SAIFUDEEN, S/O.AYISHA, AGED 26 YEARS, DEENA BAKERY, PANDIKKAD ROAD, MANJERI, ERNAD TALUK.** **13. V.SHAFEER, AGED 24 YEARS, ...DO...DO....** **14. ...DO...SHAFEELA, AGED 22 YEARS, ...DO..DO....** **15. ..DO...SHAMIL, AGED 20 YEARS, ....DO..DO.....** **16. ...DO..SHAJIL, AGED 16 YEARS(MINOR)...DO...DO....** **17. ..DO....JASLEEMA, D/O.NAJMA, AGED 25 YEARS, RESIDING AT AYSHA MANZIL, POOVALAP STREET, THALASSERY.** **18. ...DO....JASNA, AGED 19 YEARS, ...DO...DO....** **19. ..DO...SUKULUM, AGED 7 YEARS (MINOR) D/O. SHAFEELA, DEENA BAKERY, PANDIKKAD ROAD, MANJERI.** - **(MINOR RESPONDENT 19 THROUGH GUARDIAN AND MOTHER R14 SHAFEELA)** **20. V.PUSHPALATHA, ADVOCATE COMMISSIONER, THALASSERY.** ## **R2 TO R4 BY ADV. SRI.K.M.MOHAMMED KUNHI** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **ORDER ON CMP.NO.3920/1999 IN CRP.NO.1869/1999** ## **DISMISSED** **3/01/2011 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE** **Kss** ## **M.N. KRISHNAN, J.** ........................................... C.R.P.NO.1869 OF 1999 ............................................. Dated this the 3[rd] day of January, 2011. ## **O R D E R** This revision is preferred against the order of the Subordinate Judge, Thalassery in I.A.No.3017/1997 in I.A.No.1695/1995 and also on the memo of the Commissioner. The suit is one for partition. The property is directed to be divided into 168 equal shares. The Commissioner on inspection of the property reported that the entire property and the house has to be allotted to the group of the plaintiffs and defendants 7 to 10 by directing them to pay an amount of `1,52,017.13. The grievance is that the Commissioner ought to have alloted a portion of the house and the courtyard in favour of the petitioners in the IAs. Similarly, it is also submitted that the Commissioner ought to have sought the permission of the court to auction the house and the property among the shares instead of allotting it to one set of persons. 2. The prayer in the petition was to remit the Commissioner's plan and report with a direction either to auction the house among the sharers or to allot a portion of : 2 : ## C.R.P.NO.1869 OF 1999 the house along with the courtyard in favour of the petitioners on proper valuation. 3. I find that the learned Subordinate Judge had not applied his mind properly and had just passed an order “Heard. Remitted.”. It is not known for what purpose the remission is made. It is seen that subsequently the Commissioner filed an application to the effect that the house is not divisible by metes and bounds and therefore, prayed for sale among sharers. 4. The revision petitioners would contend that as a group they are entitled to 138 out of 168 shares and therefore in equity they are to be allotted the entire house and compound. This is a matter which requires consideration. Similarly time and again it has been held by this Court that when sale among sharers is ordered, it is not to be done by the Commissioner, but it is to be done in open court by the court. This position has been clearly laid down in the decision reported in **Anthony Ammal v. Antony** (1983 KLT 645). A learned Judge of this Court held that Rule 234 of the Civil Rules of Practice insists that in the : 3 : ## C.R.P.NO.1869 OF 1999 case of a sale among the sharers only, the sale is to be conducted in open court. Simply because the Commissioner is an officer of the court, it does not mean that a sale by him will be a sale in open court as insisted by Rule 234(2) of the Civil Rules of Practice”. It is also a settled position that orders can be brief but not blank. Here it is a blank order passed by the learned Subordinate Judge. 5. Therefore it is set aside and the revision petitioners are permitted to file counter and the court is directed to consider the application I.A.No.3017/1997 afresh and pass appropriate orders in accordance with law after hearing all concerned. Parties are directed to appear before the court on 14.2.2011. Being a very old matter of 1993, endeavour shall be made to dispose of the final decree application at the earliest. Disposed of accordingly. ## **M.N. KRISHNAN, JUDGE.** ## **cl** : 4 : ## C.R.P.NO.1869 OF 1999 ## **M.N. KRISHNAN, J.** ........................................... C.R.P.NO.1869 OF 1999 ............................................. 3[rd] January, 2011. ## **O R D E R**