IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 RSA.No. 136 of 2010() --------------------- AS.16/2008 of SUB COURT, QUILANDY OS.123/2007 of MUNSIFF COURT, QUILANDY .................... APPELLANT IN RSA – RESPONDENT No.3 IN A.S – DEFENDANT No.3 IN SUIT: ------------------------------------ VASANTHA, D/O.VASU, RESIDING AT THOLETTIYIL HOUSE, KAVUNTHARA AMSOM, KAVIL DESOM,KOYILANDY TALUK. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENTS IN RSA – APPELLANT & SUPPLEMENTAL RESPONDENTS 4 TO 12 IN A.S – PLAINTIFF & L.RS OF DEFENDANTS 1 &2 IN SUIT: ---------------------------------- 1. UNICHIRA, D/O.KELAPPAN, THOLETTIYIL HOUSE, KAVUNTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK. 2. K.K.NANU, S/O.KUMARAN, KAPPALLIPARAMBATH HOUSE, VAKAYAD AMSOM DESOM, KOYILANDY TALUK. 3. VALSALA, W/O.LATE CHANDRAN, KURUPPASSANKANDY HOUSE, NIRMALLOOR AMSOM, DESOM,KOYILANDY TALUK. 4. SRIJILA CHANDRAN, D/O.LATE CHANDRAN, IN -DO- -DO- 5. SREESHLAL, S/O. DO. RESIDING IN DO.DO. 6. CHANDRIKA, W/O. PURUSHOTHAMAN, KALORATH MEETHAL HOUSE, THALAKULATHUR AMSOM, DESOM, KOZHIKODE TALUK. 7. SOUMINI, W/O.LATE KUNHIRAMAN, THOLETTIYIL HOUSE, KAVUNTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK. 8. SUNIL KUMAR T., S/O. DO. DO. 9. MINI, D/O. DO. IN DO- DO- 10. SREEJA, D/O. DO. RESIDING IN -DO- -DO-. ADV. SRI.SANTHARAM.P FOR R1 to R10 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.136 of 2010 and I.A.Nos.839 and 840 of 2010 --------------------------------------- Dated this 26th day of March, 2010 JUDGMENT Heard. Admit. 2. This appeal arises from judgment and decree of learned Sub Judge, Koyilandy in A.S.No.16 of 2008 confirming judgment and preliminary decree for partition passed by learned Munsiff, Koyilandy in O.S.No.123 of 2007. Dispute concerns entitlement of appellant/defendant No.3 for a share in the suit property which originally belonged to one Chathukutty who died on 07-02-2004. Courts below found that appellant is not entitled to any share in the suit property and accordingly passed a preliminary decree for partition of the property among the respondents. Hence this second appeal. 3. Parties have settled the dispute outside court and filed I.A.No.839 of 2010 to record compromise and to pass a final decree in accordance with terms of the compromise. Respondent No.5 in the appeal is a minor, represented by his mother who is respondent No.3. Since respondent No.5 is also a party to the compromise, his guardian and mother (respondent No.3) has filed I.A.No.840 of 2010 R.S.A.No.136 of 2010 and I.A.Nos.839 and 840 of 2010 : 2 : seeking leave of this court to enter into compromise on behalf of respondent No.5 as well. In the affidavit in support of I.A.No.840 of 2010 the circumstance which led to the settlement of dispute between the parties is explicitly stated. As per the compromise respondents have executed gift deed No.785 of 2010 dated 11-03- 2010 of SRO, Naduvannur in favour of the appellant transferring right, title, interest and possession of the property referred to therein in favour of the appellant. Respondents have executed document No.786 of 2010 dated 11-03-2010 of the same SRO deviding the rest of the property among themselves and foregoing the need for a final decree proceedings. It is stated in the affidavit in support of I.A.No.840 of 2010 that the settlement is for the advantage of minor respondent No.5. Along with the affidavit there is a certificate issued by the learned counsel for respondents as provided under Order 23 Rule 1(2) of the Code of Civil Procedure (for short, “the Code”) certifying from the relevant documents and as told by the client that the compromise arrived at by the parties and abandonment of the claim over the property gifted to the appellant as per document No.785 of 2010 dated 13-07-2010 is not at all adverse or detrimental to the interest of minor (respondent No.5) and that the settlement is effected protecting the interest of the said minor. On going through the records before me, affidavit of respondent No.3 and the certificate issued by the learned R.S.A.No.136 of 2010 and I.A.Nos.839 and 840 of 2010 : 3 : counsel, I am satisfied that the compromise is not in anyway detrimental to the interest of the minor and it has protected the interest of the minor. Learned counsel for respondents would say that in view of document Nos. 785 of 2010 and 786 of 2010 it is not necessary for respondents to go for a final decree and that respondents could enjoy the property as divided as per document No.786 of 2010. Having regard to all the relevant circumstances I am inclined to allow I.A.No.840 of 2010. Accordingly that application is allowed and leave is granted to respondent No.3 to enter into compromise on behalf of minor respondent No.5. The compromise as per I.A.No.839 of 2010 is accepted and recorded. Resultantly the compromise vide I.A.No.839 of 2010 is accepted and recorded and in substitution of the decree of the courts below, the second appeal is disposed of in terms of the compromise and a decree is passed in terms of the compromise accepting the gift in favour of the appellant as per document No.785 of 2010 and the division made among the respondents as per document No.786 of 2010 of SRO, Naduvannur. The compromise will form part of the decree of this court. Further proceedings in the suit will stand closed by the decree of this court. THOMAS P JOSEPH, JUDGE Sbna/