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2025 Supreme(Online)(KER) 8287
HIGH COURT OF KERALA
K. Babu, J
SINDU – Appellant
Versus
MOHANACHANDRAN NAIR – Respondent
OP(C) 889/2014
SRI.K.B.PRADEEP, SRI.ASHOK SURESH, SRI.V.G.ARUN, SRI.S.ARAVIND, SRI.RENJITH B.MARAR, SMT.RESHMI JACOB, SRI.V.R.REKESH, SRI.P.S.RAGHUKUMAR, SRI.K.SASIKUMAR
In partition suits, agreements involving alienated property require the consent of all parties, and the Trial Court must assess the legality of such compromises.
Headnote:(A) Code of Civil Procedure, 1908 - Section 151 - Suit for partition - Preliminary decree was challenged by defendant alleging fraud, leading to its recall by the Trial Court - The matter involves three items of property, where one item was alienated to a stranger - A compromise among the parties was reached regarding the properties, excluding the alienated item - The Court remitted the matter back to the Trial Court to proceed with the suit and consider the legality of the compromise. (Paras 1-7)
(B) Partition suits - The inclusion of alienated property in a compromise agreement without the consent of the assignee is prejudicial and requires careful consideration by the Trial Court. (Paras 4-6)
JUDGMENT
The parties in a suit for partition are before this Court. The Trial Court initially passed a preliminary decree partitioning the property. The preliminary decree was challenged by defendant No.1 alleging fraud by way of an application under Section 151 CPC. The Trial Court allowed the application and recalled the decree as per Ext.P8 order. This order is under challenge in this Original Petition.
2. Needless to say, the suit is pending before the Trial Court.
3. Three items of the property are included in the suit. Even prior to the institution of the original suit, some of the sharers had alienated their right over item No.3 property to a stranger, who is respondent No.5 in the present petition.
4. It is submitted that the parties other than assignee of the sharers (respondent No.5) arrived at a settlement. The compromise arrived at by the parties and reduced to writing has been produced before the Court for perusal. Respondent No.5 contends that the inclusion of the third item of the property that had been assigned to him in the agreement entered among the parties without his junction would cause prejudice to him.
5. It is submitted that Clauses 33 and 34, wherein there is a reference regarding the partition of the property assigned to the stranger, will be deleted and a fresh compromise will be produced before the Trial Court.
6. It is made clear in the compromise that the parties are at liberty to institute a fresh suit for partition in respect of the third item.
7. Having regard to the fact that the sharers have arrived at a compromise in respect of the properties other than item No.3, upon which the stranger makes a claim, the matter is liable to be remitted to the Trial Court. Therefore, the matter is remitted to the Trial Court with liberty to proceed with the suit. The parties are also at liberty to file a compromise, the legality of which will be considered by the Trial Court.
The Original Petition stands disposed of.
