IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 FAO.No. 244 of 2008() --------------------- AGAINST THE ORDER DATED 28/08/2008 IN IA 1956/08 IN OS.308/2008 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): -------------------- NAGENDRANATH P.THIRUKODE, S/O.DR.N.P.PILLAI, KALYANIMANDIRAM, VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENTLY R/AT.B-605, MANTRI CLASSIC, ST, BED LAYOUT 4TH BLOCK, KORAMANGALA BANGALORE-34. BY ADV. SRI.P.A.AHAMMED RESPONDENT(S): --------------- 1. KALYANI UNNITHAN, D/O.K.MEENAKSHIKUTTY AMMA, R/AT.14/57, FURLONG WAY, GERMAN TOWN MD.20874, U.S.A. ADDL.RESPONDENTS IMPLEADED : 2. T.P.MADHAVAN, S/O.DR.N.P.PILLAI, KALYANIMANDIRAM ANNEX, KALYANI MANDIRAM COMPOUND, VAZHUTHACAUD, THIRUVANANTHAPURAM-10. 3.DR.RAM NAYAR, S/O.DR.N.P.PILLAI, FROM KALYANI MANDIRAM, VAZHUTHACAUD, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT 1423, DEXTER DRIVE NORTH, PORT ORANGE, FLORIDA - 320 20 USA 4.MRS.CHANDRIKA NAIR, D/O.K.MEENAKSHIKUTTY AMMA, RESIDING AT 12505, CORAL GROVE PLACE, GERMAN TOWN, USA. 5.MRS.INDIRA NAIR, W/O.LATE C.P.N.NAIR, RESIDING AT SRIVIDYA, KALYANI MANDIRAM COMPOUND, VAZHUTHACAUD, THIRUVANANTHAPURAM-10. (IMPLEADED AS PER ORDER DT. 4.11.2008 IN I.A. 4373/08) ADV. SRI.D.KISHORE FOR R1 SRI.LIJI.J.VADAKEDOM FOR ADDL.R3 SRI.D.KISHORE FOR ADDL.R4 SRI.P.GOPALAKRISHNAN NAIR FOR ADDL.R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ----------------------------------------- F.A.O.No.244 of 2008 ----------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT K.T.Sankaran,J . The appeal is filed by the plaintiff in O.S.No.308/2008 on the file of the court of the II Additional Subordinate Judge, Thiruvananthapuram challenging the order in I.A.No.1956/2008 by which the court below vacated the order of interim injunction granted earlier. 2. In the application for temporary injunction, namely, I.A.No.1956/2008 filed by the plaintiff, the 3rd defendant was the respondent. When the appeal came up for admission, we thought that in the interests of all parties, an attempt could be made to settle the whole dispute between the parties. Accordingly, we appointed Advocate Sri.P.C.Joseph Pazheparambil as Mediator. All the parties in the suit were impleaded as per the order in I.A.No.4373/2008. Counsel appeared for the parties except for the additional 5th respondent. Notice was issued to her counsel appearing in the court below. Advocate Sri.M.R.Anandakuttan appeared for the additional 5th respondent. On his behalf Smt.Hemalatha and Sri.Mahesh Anandakuttan appeared today. F.A.O.No.244 of 2008 -:2:- 3. As a result of an effective mediation, the parties except the 5th defendant (5th respondent) agreed to settle their disputes and differences among them and to file a compromise petition. It is stated that the 5th defendant-5th respondent is presently in the United States of America and therefore, an effective settlement could not be arrived at with her as well. 4. The plaintiff as well as defendants 1 to 4 have signed and presented a compromise petition, namely, I.A.No.4705/2008. The terms of settlement have been set out in detail in the compromise petition. 5. The suit was filed for partition claiming 1/6th share in the plaint schedule properties. The plaint schedule properties were dealt with by the mother of the parties as per document No.1712/1972 dated 26-5-1972, a gift deed executed by her in favour of defendants 3, 4 and 5. A schedule to the gift deed was given to the 5th defendant, B schedule to the 4th defendant and the C schedule to the 3rd defendant. A, B and C schedules in the said gift deed would constitute the plaint schedule property. 6. Now the compromise entered into by the parties except the 5th defendant is in respect of the B and C schedules in the gift deed dated 26-5-1972. The 5th defendant, who is not a signatory to the F.A.O.No.244 of 2008 -:3:- compromise is interested in the A schedule to the gift deed dated 26-5-1972. 7. As per the terms of compromise, the plaintiff agreed to relinquish his rights in the C and B schedule properties in the gift deed in favour of defendants 3 and 4 for a total consideration of Rs.65 lakhs. The first defendant has agreed to release his rights in favour of defendants 3 and 4 in respect of the aforesaid B and C schedule properties in the gift deed for a total consideration of Rs.40 lakhs. The second defendant has agreed to relinquish and release his rights in B and C schedules in the gift deed in favour of defendants 3 and 4 for a consideration of Rs.15 lakhs. The compromise also indicates the terms in respect of the payment of the consideration referred to above. It is also stated that a separate agreement is executed among the parties to the compromise. 8. As the terms of the settlement have been set out in detail in the compromise petition, the plaintiff and defendants 1 to 4 submit that the compromise petition may be recorded in this appeal. The learned counsel appearing for the 5th defendant submitted that the 5th defendant being not a signatory to the compromise, her rights should not be affected by accepting the compromise petition. 9. As per the terms of the compromise, the plaintiff agreed to F.A.O.No.244 of 2008 -:4:- withdraw the suit. It is also stated in the compromise petition that the suit itself can be disposed of recording the compromise. 10. In view of the compromise, it is not necessary to decide the appeal on merits. The order passed by the court below need not be interfered with. Accordingly we confirm the order passed by the court below. It is made clear that the findings and the observations in the order impugned regarding the nature of the property or the title to the property are made only for the purpose of disposal of the interlocutory application. Since the signatories to the compromise have agreed as per the terms of the compromise to relinquish their rights, all those observations/findings are unnecessary. 11. We record the compromise and dispose of I.A.No.4705/2008 recording the compromise. I.A.No.4705/2008 shall be forwarded by the registry to the trial court for the purpose of disposing of the suit in terms of the compromise, on payment of the full consideration to be paid to the plaintiff and defendants 1 and 2. It is also made clear that the rights of the 5th defendant are not affected by recording this compromise. The trial court shall accept the compromise petition as between the plaintiff and defendants 1 to 4 and dispose of the suit accordingly. 12. The parties agree that in view of the compromise and in F.A.O.No.244 of 2008 -:5:- view of the confirmation of the order impugned, there shall be no impediment for respondents 3 and 4 to commence or continue the construction activities in the C schedule property in the gift deed dated 26-5-1972. 13. The plaintiff and defendants 1 to 4 will pay Rs.10,000/- each as fee of the Conciliator, within two weeks as agreed to by them. The appeal is disposed of as above. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg. KURIAN JOSEPH & K.T.SANKARAN, JJ. --------------------------- F.A.O.No.244 of 2008 ---------------------------- JUDGMENT 4th November 2008