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2008 DIGILAW 255 (KER)

Arammal P. v. P. V. Subdhara

2008-04-10

HARUN-UL-RASHID, KURIAN JOSEPH

body2008
Judgment :- Kurian Joseph, J. Blood is thicker than water is a proverb first recorded about 1412, indicating stronger bonds within the family. Water is thinner and leaves no mark on evaporation; blood on the contrary is thicker and always leaves a stain. There is no difficulty in effecting partition of family property when the stain is fresh. But thinner the stain owing to passage of time, more difficult and complicated is the process of partition since the relationship among the members is distanced, if not strained. This is the crux of the problem in these cases, perhaps the oldest before this court. During the beginning of the 20th century one Karathotti and Matha did not deem it serious to partition their family property. They had six children namely (1) Kunhikannan, (2) Chathan, (3) Manikkam, (4) Paru, (5) Karinji and (6) Mathu. It is not in dispute that Kunhikannan had released his rights in the properties in favour of others. So the dispute is only with regard to the descendants of the rest five children. That lead to the filing of O.S.No.102/1980 on the file of the Sub Court, Badagara. The plaintiffs and defendants 3 to 5 are the legal representatives of Govindan, the only son of Paru. Defendants 1 and 2 are the children of Karinji. During the pendency of the legal proceedings, the legal representatives of the parties had to be impleaded and hence the voluminous cause title. 2. A preliminary decree in O.S. No. 102/1980 of Sub Court Vadakara was passed allotting shares to Plaintiffs and defendants 3, 4, 5, 11, 12, 13, 15, 29, 30, 31, 32, 33 and 34 (Who are respondents Nos. 1 to 19, 23 to 29 and 31 to 40 in AS. No. 250 of 1987) to the following effect: I. The plaint Schedule items 1, 9 and 13 (excluding the house in 9) shall be divided as below: i. Plaintiffs 1 to 6 and Defendants 3 to 5 (Respondents 1 to 9) will together take 68/330 shares in the said plaint Schedule items 1, 9 and 13. ii. Deceased defendants 6 & 7 (now by surviving Respondents 47 to 50) will together take 22/330 shares in the plaint Schedule items 1, 9 and 13. iii. ii. Deceased defendants 6 & 7 (now by surviving Respondents 47 to 50) will together take 22/330 shares in the plaint Schedule items 1, 9 and 13. iii. Defendants 11 to 15 and 27 to 29 (now by surviving Respondents 14, 17, 27 to 29, 38 & 39, 40 to 42 and 51 to 55) will together take 183/330 shares in the said plaint Schedule items 1, 9 and 13. iv. Defendants 16 to 21 (Respondents 18-23) will together take 22/330 shares in the said plaint Schedule items 1, 9 and 13. v. Defendants 29 to 34 (now by surviving Respondents 32 to 35 and 43 to 46) will together take 35/330 shares in the said plaint Schedule items 1, 9 and 13. II. Theplaint Schedule items 2 to 8, 10 to 12 and 14 to be divided as below: and Cross Objections. i. Plaintiffs 1 to 6 and Defendants 3 to 5 (now by surviving Respondents 2 to 9) will together take 26/88 shares in the plaint Schedule items 2 to 8, 10 to 12 and 14 ii. Defendants 11 to 15 and 27 to 29 (now by surviving Respondents 14, 17, 27 to 29, 38 & 39, 40 to 42 and 51 to 55) will together take 49/88 shares in the plaint Schedule items 2 to 8, 10 to 12 and 14. iii. Defendants 29 to 34 (now by surviving Respondents 32 to 35 and 43 to 46) will together take 13/88 shares in the plaint Schedule items 2 to 8, 10 to 12 and 14. iv. The plaintiffs and defendants 3 to 5 are liable to pay mesne profits to defendants 16 to 21, defendants 6 and 7 and defendants 29 to 34, defendants 11 to 15 and 25 to 28 with respect to item 1, 9 and 14. The plaintiffs and defendants 3 to 5 are liable to pay mesne profits to defendants 11 to 15 and 25 to 28 and 29 to 34 with respect to items 2 to 8, 10 to 12 and 14 from the date of suit till they get possession. The quantum can be decided in the final decree proceedings. v. The equities which defendants 29 to 34 claims can be considered at the time of the final decree proceedings. 3. Thesaid decree excludes the branches of Manickam fully and Chathan partially. The quantum can be decided in the final decree proceedings. v. The equities which defendants 29 to 34 claims can be considered at the time of the final decree proceedings. 3. Thesaid decree excludes the branches of Manickam fully and Chathan partially. Manickams branch include deceased D8 and D23 to D25 (Respondents 24 to 26), grand children born to Kumaran, the only son of Manickam. Chathans branch include Defendant No. 2, and Defendants 6,7, 9 to 16 grand children (now by surviving Respondents 14, 17, 27 to 29, 38 to 42 and 51 to 55). In view of the exclusion, three appeals have been filed. i. Sri. Krishnan (Appellant) son of late Kumaran born in his 2nd widow (late Madhavai 8th defendant) challenged the decree under AS 250 of 1987. ii. The grandchildren of late Kumaran, namely: Sri. Padmanabhan (Respondent No.20), Sri. Somaratnam (Respondent No.21) and Smt. Hemalatha (Respondent No.22), children in 2nd wife of Kumaran and have disputed their exclusion and challenged under AS No. 270 of 1987. iii. Sri. Hareendran (Respondent No. 36) son of 10th defendant late Balan (and grand child of Kunjiraman son of Chathan) has challenged the denial of shares to him vide AS. No. 237 of 1987. 4. There are cross objections as well regarding sharing of mesne profit. 5. When the matters were listed before the learned single Judge, by order dated 18-8-1995 the appeals were referred to the Division Bench observing that important questions of law are involved in the cases. 6. No doubt there are certain important questions of law, particularly as to the law of succession that was applicable to the parties, either with regard to the entire 14 items of properties or with regard to a part. Part of the properties is situated in Mahe, so that whether it is Indian law or French law that is to be applied is one of the important questions. But if peace can be otherwise purchased between the parties, the court need not burden itself with the decision on the question of law. Deciding the question of law, of course is a duty cast on the court. But in view of the new thrust introduced by Section 89 and Order X Rule 1-A of the Civil Procedure Code, the Court has to see first whether a settlement of the dispute is possible through one of the alternate dispute resolution mechanisms. Deciding the question of law, of course is a duty cast on the court. But in view of the new thrust introduced by Section 89 and Order X Rule 1-A of the Civil Procedure Code, the Court has to see first whether a settlement of the dispute is possible through one of the alternate dispute resolution mechanisms. Section 89 reads as follows:- "89. Settlement of disputes outside the Court.-(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for -- .(a) arbitration; .(b) conciliation; .(c) judicial settlement including settlement through Lok Adalat; or .(d) mediation. .(2) Where a dispute has been referred - .(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; .(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub- section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat. .(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; .(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed." The legislature is clear in its intention that the procedural rigour cannot be allowed to stand in the way of compromise between the parties. Order X Rules 1A, 1B and 1C read as follows:- "1A. Order X Rules 1A, 1B and 1C read as follows:- "1A. Direction of the Court to opt for any one mode of alternative dispute resolution.- After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of Section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. 1B. Appearance before the conciliatory forum or authority.-Where a suit is referred under rule 1A the parties shall appear before such forum or authority for conciliation of the suit. 1C. Appearance before the Court consequent to the failure of efforts of conciliation- Where a suit is referred under rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it." The court has an obligation to see whether a case or some of the issues involved in the case can be settled in any one of the Alternate Dispute Resolution (ADR) mechanisms. In fact one factor which contributed to the delay in disposing of the cases is the high degree of formalization in the court process. That is why a complementary mechanism was thought of by introducing the amendments to the Civil Procedure Code and by various other legislations. The Supreme Court in the celebrated decision in Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 has referred to the combined effect of Section 89 read with Order X Rule 1A. Paragraph 55 of the judgment reads as follows:- "55. As can be seen from Section 89, its first part uses the word "shall" when it stipulates that the "court shall formulate terms of settlement". The use of the word "may" in later part of Section 89 only relates to the aspect of reformulating the terms of a possible settlement. Paragraph 55 of the judgment reads as follows:- "55. As can be seen from Section 89, its first part uses the word "shall" when it stipulates that the "court shall formulate terms of settlement". The use of the word "may" in later part of Section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting Section 89 is that where it appears to the court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the section and if the parties do not agree, the court shall refer them to one or the other of the said modes. Section 89 uses both the words "shall" and "may" whereas Order 10 Rule 1-A uses the word "shall" but on harmonious reading of these provisions it becomes clear that the use of the word "may" in Section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarised in the terms of settlement formulated or reformulated in terms of Section 89." 7. In view of the complexity of the matter and the voluminous nature of the work involved and the inconvenience otherwise of so many counsel appearing for the parties in the appeals, the cases have been adjourned from time to time. Hence and thus they are now more than two decades old in the High Court. Being a dispute essentially of partition of properties within the family, we suggested resolution of the dispute before the Lok Adalat. It is seen that two attempts made by the Lok Adalat were not fruitful and the appeals were sent back to the court. After hearing the parties for quite some time we felt that it is unnecessary and it is not in the interests of the parties at this stage and at this distance of time to go for a resolution of the complicated questions of law involved in the case, particularly since it is a vanishing branch of fact situation. After hearing the parties for quite some time we felt that it is unnecessary and it is not in the interests of the parties at this stage and at this distance of time to go for a resolution of the complicated questions of law involved in the case, particularly since it is a vanishing branch of fact situation. Therefore, we suggested to the parties that it would be in their interest to go for mediation. As agreed to by the parties, an expert mediator was also appointed, Advocate Sreelal N. Warriar. As usually happens, some of the parties were not willing to part with what is already granted to them in the preliminary decree. When the whole process was almost on the verge of a stalemate we suggested to the Mediator that he could also assume the role of a Conciliator. The court also intervened and gave appropriate timely suggestions so as to facilitate the process of mediation-cum-conciliation. Yet in that process we fond that the entire issues involved in the appeals cannot be settled by mediation and conciliation; judicial pronouncement was required in respect of one of the issues namely sharing of mesne profits. That was so partly because also of the reason that some of the affected parties had remained unrepresented. 8. Two questions in the process are to be tackled. (1) Whether the court can identify and segregate issues which can be settled in ADR and which are to be adjudicated by the court and whether on such identification, those segregated issues can be referred for settlement in one of the ADR mechanisms; and (2) Even if there is no agreement among the defendants on all the issues referred for ADR by settlement, can some of the defendants satisfy the plaintiff and thus enter a compromise. 9. Order XXIII Rule 3 provides for compromise of suit which reads as follows:- "3. 9. Order XXIII Rule 3 provides for compromise of suit which reads as follows:- "3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject- matter of the suit." It is fairly clear from the provision itself that the subject matter of suit can be wholly or partly adjusted. It will be open to the defendant to satisfy the plaintiff and enter a compromise. It will also be open to the defendant to satisfy the plaintiff in respect of the whole or any part of the subject matter. On issues which have been settled, on recording the settlement the court shall have to pass a decree in terms of the settlement. To that extent the burden of the court is reduced in trying the suit. However, in case the issues settled by the parties are not capable of being severed from the other disputed issues pending decision by the court, the court has to wait for a judicial pronouncement on such unsettled issues and thereafter only a composite decree can be passed on all issues. But a partition suit cannot be allowed to be withdrawn without notice to all the defendants because had the defendants been given notice, subject to the law of limitation, if required they could have transposed themselves as plaintiffs and continued the suit making the plaintiff a defendant. It is also possible for one or more of the several defendants in the suit to satisfy the plaintiffs without affecting the other defendants who are not co-operating with the ADR. It is this principle that we have attempted and applied in this case through the mediator-cum-conciliator. It is also possible for one or more of the several defendants in the suit to satisfy the plaintiffs without affecting the other defendants who are not co-operating with the ADR. It is this principle that we have attempted and applied in this case through the mediator-cum-conciliator. At one stage it was brought to our notice that a mediation-cum-conciliation involving all the parties to the suit may not be possible in view of the passage of time, number of parties and their distanced relationship. However, in the conciliation-cum-mediation it came out that without affecting the interests of those defendants who are benefited by the preliminary decree and who have not filed appeals, the plaintiffs could be satisfied by some of the defendants. 10. Satisfaction of the plaintiff is the most vital aspect in a compromise or settlement. Mediation or conciliation or both together, compared to other ADR methods, would produce better results, since by those processes reconciliation is achieved and the parties are no more in a fighting mood. One case settled thus would avoid minimum ten cases in future. Mediation is a process in which a neutral third party assists the disputing parties to resolve their disputes without going to trial. It presents an opportunity for dispute resolution with involvement and participation of all the parties and their advocates. A trustworthy and neutral third party called mediator uses his special negotiation skills and communication tactics to facilitate the litigants to bring their difference and find a solution to their disputes. In mediation decision making power is always with the parties. The mediator does not decide what is fair or right or apportion, blame or predict the outcome in court. The mediator only acts as a catalyst to bring the disputing parties together by identifying the issues and eliminating obstacles for communication and settlement. Apart from identifying the issues, the mediator also helps to reduce misunderstandings between the parties, he clarifies priorities, explores the areas of compromise and generates options in an attempt to solve the dispute emphasising of course that the parties alone are responsible for the decision-making and decision taking. In conciliation the conciliator is in a position to move a step farther and he is in a position to very actively participate and involve himself in the decision making process. In conciliation the conciliator is in a position to move a step farther and he is in a position to very actively participate and involve himself in the decision making process. As held by the Supreme Court in Salem Advocate Bar Associations case (supra) "....in "conciliation" there is a little more latitude and a conciliator can suggest some terms of settlement too". Instead of generating options, the conciliator is in a position to suggest terms of compromise and guide the parties and to some extent persuade them, of course not to pressurize them, for arriving at a reconciliation and settlement convincing them that it is in their interest to go for a settlement. Such a process was absolutely necessary in the instant case for several reasons, some of which we have already indicated above. Therefore, we suggested that the learned Mediator-cum-Conciliator could proceed with the mediation- cum-conciliation in respect of issue No.7 regarding the sharing of the property, leaving the issue No.6 regarding sharing of mesne profits for decision by the court. 11. Thanks to the strenuous and sticky efforts taken by Sri. Sreelal N. Warriar by employing both methods of mediation and conciliation, it is heartening to note that the parties have agreed for a settlement. The terms of the mediated settlement have been reduced to writing and the same dated 16-3-2008 has been duly filed. Thereafter, the matter was posted on a few occasions and all the parties have submitted before us that they stick to the mediated settlement regarding issue No.7. Therefore, we modify the judgment and decree under appeal with regard to issue No.7 and substitute the same with the mediated settlement dated 16-3-2008. The said settlement will form part of the decree. 12. The court below has ordered that the plaintiffs and defendants 3 to 5 shall be liable for the mesne profits. But it has come out in evidence, more specifically in the report of the Advocate Commissioner, that plaintiffs and defendants 3 to 5 are not in possession of the plaint schedule 4 and 5 items of properties; they have been in the possession of the first defendant, now survived by respondents 32 to 35 and 43 to 46. But it has come out in evidence, more specifically in the report of the Advocate Commissioner, that plaintiffs and defendants 3 to 5 are not in possession of the plaint schedule 4 and 5 items of properties; they have been in the possession of the first defendant, now survived by respondents 32 to 35 and 43 to 46. Though there have been heated arguments for sustaining the decree regarding sharing of mesne profits with effect from the date of suit, the suggestion made by the conciliator that the same could be given effect to from the date of the judgment and decree by this court and in the same proportion of sharing of property was finally accepted to be a fair suggestion by the parties before us. We also find that though some of the parties are not before us they may not be very seriously affected by the above suggestion and that it is in the interest of all the parties that a three decades old dispute is thus settled finally. In view of the long litigation pursued by the parties such a suggestion, according to us, is just, fair and reasonable. The said proposal is also otherwise justifiable. By the decree of the trial court passed as early as in 1987. It has been seen that defendant 1 was in possession of schedule items of properties. He died and his interests have in course of time devolved upon respondents 32 to 35, 43 to 46 who will have to, now all on a sudden, account for the mesne profits in respect of such items 4 and 5. In effect no computation of mesne profits would now be reasonably possible with respect to the said properties for the period from 1987 till date. Accordingly the preliminary decree regarding issue No.6 is set aside and the same will stand substituted by the following:- .(i) The mesne profit derived out of items 4 & 5 will have to be accounted by respondents 32 to 35 and 43 to 46 and not plaintiffs and defendants 3 to 5 (ie. respondents 1 to 9 in A.S.No.250 of 1987) and given to those entitled in proportion to the share holdings excluding that of respondents 32 to 35 and 43 to 46. respondents 1 to 9 in A.S.No.250 of 1987) and given to those entitled in proportion to the share holdings excluding that of respondents 32 to 35 and 43 to 46. .(ii) The mesne profit derived out of items other than plaint schedule items 4 and 5 will have to be accounted by the plaintiffs and defendants 3 to 5 (i.e., respondents 1 to 9 herein) and given to those entitled in proportion to the share holdings excluding that of respondents 1 to 9 herein. The mesne profits need be computed for the purpose of distribution, only from the date of this judgment. However, this is without prejudice to the right of the distribution of the amounts already deposited before the court by way of mesne profits, as per the proportion settled in respect of item No.7. 13. In view of the voluminous work, it was suggested before the court that the Mediator-cum-Conciliator should be reasonably remunerated. In the light of the suggestion made by the parties before us we fix the remuneration of the Mediator-cum-Conciliator at Re.1 lakh. We direct the 5th respondent to withdraw the said amount of Re.1 lakh from the deposits already made before the trial court and disburse the same to the Mediator-cum-Conciliator within a period of three months from today. 14. We make it clear that it will be open to any of the parties to apply for a final decree. We direct the court below to pass a final decree within a period of six months from the date fixed for appearance of the parties pursuant to an application filed by any of the parties for passing the final decree. The appeals and the cross objections are partly allowed as above. There will be no order as to costs.