//
you're reading...
legal issues

Code of Civil Procedure, 1908: Or. 39, r.1 – Temporary injunction – Suit for declaration and permanent injunction claiming suit property as ancestral property – Application for temporary injunction rejected by trial court holding that suit properties had already been partitioned and a deed of family settlement had been executed – High Court declining to interfere – Reliance upon deed of family settlement though not signed by one of the co-sharers – HELD: Factum of partition being a question of fact, prima facie view taken by courts below, for purposes of interim order, that oral partition had been effected, not interfered with – Deed of family settlement cannot be relied upon unless signed by all co-sharers – However, plaintiff, acting upon the said settlement, having executed sale deeds, it would not be open to him to question the deed of settlement – Keeping in view the balance of convenience and irreparable loss, the High Court while declining to grant temporary injunction has protected the interests of plaintiff by restraining the purchaser from alienating or transferring the property or from creating any third party rights therein during pendency of suit – Order of High Court not interfered with – Trial court would dispose of the suit expeditiously – Till then co-sharers would not create any third party right in respect of their shares in the suit property – Deeds and documents – Deed of family settlement – Evidentiary value of. The appellant filed a suit for declaration and permanent injunction as also mandatory injunction in respect of the suit property claiming it to be ancestral property of his father. It was the case of the plaintiff that though a partition deed was executed on 8.2.1967, but it was only with the intention of giving a separate share to his step-brother, and rest of the properties remained joint as there was no partition by metes and bounds; that defendants 1 and 2 had no right to execute the agreement and Special Powers of Attorney dated 27.11.2004 in respect of the suit property in favour of defendants 8 and 9 nor did defendants 8 and 9 have any right to execute the sale deed dated 31.3.2006 in favour of defendant no. 10. The plaintiff-appellant prayed for a decree of permanent injunction against the defendants not to deal with the property without a partition having been effected and also prayed for a mandatory injunction on the defendants to remove the wall which had been erected in the suit property. An application for interim injunction was also filed, which was rejected by the trial court holding that a partition had been effected between the legal heirs concerned and their names were recorded in the municipal records and a deed of family settlement dated 8.2.1967 was executed. The deed of family settlement dated 8.2.1967 and the partition had been upheld in an earlier litigation arising out of a suit filed by the plaintiff-appellant which suit was decreed partly in his favour. In the miscellaneous appeal filed by the plaintiff-appellant against the order of the trial court rejecting the application for interim injunction, the High Court declined to interfere. In the instant appeal filed by the plaintiff, the questions for consideration before the Court were: (i) whether reliance could be placed on the family settlement dated 8.2.1967 since the same was not registered, thought it sought to apportion the shares of the respective co-sharers; and (ii) whether the family settlement could at all be relied upon since all the co-sharers were not signatories thereto.

Civil Procedure Rules

Image by septuagesima via Flickr

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.8290 OF 2009
 (@ SPECIAL LEAVE PETITION (C)NO.27909 OF 2008)

NARENDRA KANTE ... Petitioner

 Vs.

ANURADHA KANTE & ORS. ... Respondents

 J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal is directed against the judgment

and order dated 13th October, 2008, passed by the

Gwalior Bench of the Madhya Pradesh High Court

dismissing Miscellaneous Appeal No.478 of 2007

filed by the appellant herein. The said
 2

Miscellaneous Appeal had been preferred by the

appellant against the order dated 14th February,

2007, passed by 5th Additional District Judge,

Gwalior, in Civil Suit No.08A of 2006 filed by the

appellant rejecting the appellant's application

under Order 39 Rules 1 and 2 of the Code of Civil

Procedure.

3. The appellant herein had filed the above-

mentioned suit for declaration and permanent

injunction and also mandatory injunction in respect

of the suit property situated at Nadigate Jayendra

Ganj, Lashkar, Gwalior, bearing Survey No.37/903 on

the ground that the suit property was the ancestral

property of his father, Bapu Saheb Kante, who had

died intestate on 13th May, 1976. The application

for ad-interim injunction had been filed in the

suit which was rejected by the Trial Court on the

ground that a partition had been effected between

the legal heirs of Bapu Saheb Kante. It was also
 3

held that a Family Settlement had been effected

between the heirs of Bapu Saheb Kante, whereby Smt.

Putli Bai and Surendra Kante, the widow and son of

Bapu Saheb Kante, acquired a 50% share of House

No.95/21. The Respondent Nos.1 and 2 herein are the

widow and daughter of late Surendra Kante, and

after his death their names were recorded in the

Municipal records.

4. At this juncture it may be pertinent to mention

that Bapu Saheb Kante is said to have had two

wives, Smt. Putli Bai and the mother of Jai Singh

Rao. The appellant herein is one of the sons of

Bapu Saheb Kante through his wife, Smt. Putli Bai.

When, after the death of Bapu Saheb Kante a son by

his second wife, Jai Singh Rao, came to claim a

share in his estate, a family settlement was

arrived at by which the properties of Bapu Saheb

Kante were divided amongst the heirs by a Family

Arrangement dated 8th February, 1967, by metes and
 4

bounds. Under the said arrangement, Jai Singh Rao

was allowed to retain possession of plot No.25/528

and after his death on 15th June, 1971, his wife and

children were allowed to live in the said premises.

However, since the concession granted to them was

misused, Surendra Kante filed a suit against them

for possession in respect of the property in

dispute and the same was partly decreed on 14th

September, 1993.

5. First Appeal No.76 of 1993 was filed by the

legal heirs of Jai Singh Rao, wherein it was sought

to be asserted that no partition had at all been

effected in respect of the properties of late Bapu

Saheb Kante and that the alleged document of

partition could not be acted upon since the same

had not been registered and was not, therefore,

admissible in evidence. In the First Appeal it was

held that there was a previous oral partition

which was reduced into writing later on, on 8th
 5

February, 1967, which could in fact be said to be a

Memorandum of Partition in the eyes of law. It was

observed that while a document of partition does

require registration, the Memorandum of Partition

subsequently executed after an oral partition

entered into on the basis of a mutual agreement

could not be said to be inadmissible on account of

non-registration, since the same did not require

registration within the meaning of Section 17 of

the Registration Act, 1908.

6. The High Court accepted the contention that a

partition had been effected between the heirs of

Bapu Saheb Kante and that a document had been

executed in that regard on 8th February, 1967, and

that it was not open to the defendants, as well as

to the predecessor-in-title of Jai Singh Rao, to

wriggle out of the said agreement which had been

admitted by the defendants. The First Appeal filed

by Surendra Kante was allowed and the other appeal
 6

filed by the predecessor-in-interest of Jai Singh

Rao was dismissed. A Letters Patent Appeal was

filed by Jai Singh Rao questioning the judgment and

decree passed by the Trial Court, which was also

dismissed by the Division Bench of the High Court

upon holding that the partition deed dated 8th

February, 1967, is a Memorandum of Partition

pertaining to a previous oral partition.

7. In the present suit filed by the appellant

herein an attempt has been made to make out a case

that the alleged partition deed of 8th February,

1967, was executed only with the intention of

giving a separate share to Jai Singh Rao and the

rest of the properties remained joint as there was

no partition by metes and bounds. Accordingly,

the Respondents Nos.1 and 2 had no right to execute

an agreement and Special Powers of Attorney in

respect of the suit property in favour of the

Defendant Nos.8 and 9 on 27th November, 2004, nor
 7

did the Defendant Nos.8 and 9 have any right to

execute a sale deed in favour of Defendant No.10 on

31st March, 2006. The appellant herein prayed for a

decree of permanent injunction against the

defendants not to deal with the property without a

partition having been effected and also prayed for

a mandatory injunction on the defendants to remove

the wall which had been erected in the disputed

property. The appellant herein also prayed for a

grant of temporary injunction which was rejected by

the Trial Court on 14th February, 2007, upon holding

that a partition had been effected between the

legal heirs of Bapu Saheb Kante and that the Family

Settlement had been reduced into writing on 8th

February, 1967.

8. Before the High Court proof of partition and

the Family Settlement, which was also accepted by

the appellant herein without any objection, were

produced, as was the decision of the High Court in
 8

First Appeal No.9 of 1994 in which the learned

Single Judge had held that the documents of 8th

February, 1967, had been held to be a Family

Settlement for which no registration was required

under Section 17 of the Registration Act, 1908.

It was also urged that since the disputed property

had come to the share of Surendra Kante, and,

thereafter, to the Respondents Nos.1 and 2, they

had the right to transfer their share in favour of

the transferees and that the defendant No.10 was a

bona fide purchaser for value. It was also pointed

out that the decision of the learned Single Judge

had been upheld by the Division Bench.

9. The High Court in the Miscellaneous Appeal

observed that the matter of grant of temporary

injunction had been considered in detail by the

Trial Court which had exercised its jurisdiction in

refusing to grant temporary injunction to the

appellants. It also observed that in case
 9

injunction was granted, it would be the defendants

who would suffer irreparable loss and injury. It

was observed that the defendant No.10, the

transferee from Respondents/defendant Nos.1 and 2,

had acquired a right to the suit property. He

was, therefore, allowed to carry out construction

activities over the disputed land, but was

restrained from alienating or transferring the

property in question or from creating any third

party rights during the pendency of the civil suit.

The Trial Court was, however, directed to decide

the suit expeditiously and to dispose of the same

within six months from the date of appearance of

the parties before the Trial Court.

10. Questioning the aforesaid decision of the High

Court, Mr. Vivek Kumar Tankha, learned Senior

Advocate, submitted that the High Court had erred

in accepting the stand taken on behalf of the

defendants/respondents herein that a valid
 10

partition had taken place by metes and bounds, on

account whereof the Respondents/defendant Nos.1 and

2, as the heirs of Surendra Kante, had acquired

title to his share in the suit property and were,

therefore, competent to dispose of the same in

favour of Defendant No.10. Mr. Tankha urged that a

partition of joint family property could be

effected only by metes and bounds and by delivery

of actual possession. In the absence of the same,

it could not be contended that a partition had, in

fact, been effected between the co-sharers. Mr.

Tankha urged that both the Trial Court, as well as

the High Court, had erred in pre-supposing a

partition between the parties simply on the basis

of the Deed of Family Settlement executed on 8th

February, 1967. It was submitted that in the

absence of evidence of partition by metes and

bounds, the learned Courts below had erred in

refusing to grant ad-interim injunction as prayed

for by the appellant since once the portion of the
 11

property allegedly transferred in favour of

Respondent No.9 was permitted to be developed, the

very object of the suit would stand frustrated.

11. Apart from the above, Mr. Tankha urged that the

learned Courts below had erred in acting upon the

Deed of Family Settlement executed on 8th February,

1967, which, in fact, was a Deed of Partition and

could not have been acted upon without being

executed by all the co-sharers and without being

registered as provided for under Section 17 of the

Registration Act, 1908. Mr. Tankha submitted that

if the Deed of Family Settlement was to be acted

upon, as has been done by the Courts below, it must

also be held that partition had been effected

thereby and, therefore, the same required

registration. In the absence thereof, the Courts

had wrongly placed reliance on the same in refusing

to allow the appellant's prayer for grant of

temporary injunction pending the hearing of the
 12

suit. In support of his aforesaid submissions, Mr.

Tankha referred to and relied upon the decision of

this Court in M.N. Aryamurthy vs. M.D. Subbaraya

Setty (dead) through LRs. [(1972) 4 SCC 1], wherein

in the facts of the case it was held by this Court

that under the Hindu Law if a family arrangement is

not accepted unanimously, the Family Settlement has

to fail as a binding agreement.

12. Mr. Tankha urged that there could be little

doubt that in the facts of this case, the balance

of convenience and inconvenience lay in favour of

grant of temporary injunction during the pendency

of the suit, as prayed for by the appellant herein

as otherwise the appellants would suffer

irreparable loss and injury.

13. Mr. Anoop G. Chaudhary, learned Senior

Advocate, appearing for the Respondent No.6, while

supporting Mr. Tankha's submissions, reiterated

that the Deed of Family Settlement had not been
 13

acted upon as would be evident from the Deed of

Settlement itself. It would be clear therefrom

that one of the co-sharers, Sau. Pratibha, who was

shown as the eighth executant of the Deed of

Settlement dated 8th February, 1967, had, in fact,

not signed the said document. She was not also

made a party in the First Appeal, although,

admittedly she was one of the daughters of Bapu

Saheb Kante through his first wife.

14. On the other hand, Mr. Ranjit Kumar, learned

Senior Advocate, appearing for the Respondent

Nos.1, 2, 8, 9 and 10, reiterated that the family

settlement of 8th February, 1967, had been duly

acted upon, as would be evident from the sale deeds

executed by Narendra Kante, which have been

exhibited by Narendra Kante in the suit pertaining

to the suit property. Mr. Ranjit Kumar also

referred to a copy of the agreement made Annexure

P-1 to the Special Leave Petition, which is an
 14

agreement alleged to have been executed by Udai

Kante, Narendra Kante and Surendra Kante in favour

of one Ram Bharose Lal Aggarwal regarding Municipal

House No.15/642, known as "Kante Saheb Ka Bara".

Reference was also made to a suit, being Case

No.32A of 1991, filed by Ram Bharose Lal Aggarwal

in the Court of Third Additional District Judge,

Gwalior, for specific performance of the agreement

dated 8th February, 1967.

15. Similarly, several other documents were also

referred to by Mr. Ranjit Kumar, which were also

executed during the hearing of the suit, in order

to establish the fact that the parties, including

the present appellant, had acted in terms of the

said Deed of Settlement and had dealt with the

properties which had fallen to their respective

shares.

16. Mr. Ranjit Kumar submitted that as far as the

second question raised on behalf of the appellant
 15

was concerned, it was well-settled that a Deed of

Family Settlement which was reduced into writing

was not required to be registered under Section 17

of the Registration Act, 1908. Learned counsel

submitted that when an oral settlement had been

arrived at and acted upon and a subsequent document

was prepared only for the purpose of recording such

settlement, the provisions of Section 17 of the

Registration Act were not attracted, since except

for recording a settlement, no actual transfer

takes place by virtue of such document.

17. In support of his aforesaid submission, Mr.

Ranjit Kumar firstly relied on the decision of the

Three Judge Bench in Kale vs. Dy. Director of

Consolidation [(1976 (3) SCC 119] in which the

question of registration of a family arrangement

had fallen for consideration. Their Lordships

held that a family arrangement may be even oral in

which case no registration is necessary.
 16

Registration would be necessary only if the terms

of the family arrangement are reduced into writing

but there also a distinction should be made between

a document containing the terms and recitals of a

family arrangement made under the document and a

mere Memorandum prepared after the family

arrangement had already been made, either for the

purpose of recording or for information of the

Court for making necessary mutation. In such a

case, the Memorandum itself does not create or

extinguish any right in the immovable properties

and, therefore, neither does it fall within the

mischief of Section 17(2) of the Registration Act

nor is it compulsorily registrable. Their

Lordships went on further to conclude that a

document, which was no more than a memorandum of

what had been agreed to, did not require

registration.
 17

18. While holding as above, Their Lordships also

indicated that even if a Family Arrangement, which

required registration was not registered, it would

operate as a complete estoppel against the parties,

which had taken advantage thereof.

19. Learned counsel urged that as had been held by

this Court in Mandali Ranganna vs. T. Ramachandra

[(2008) 11 SCC 1], while considering an application

for grant of injunction, the Court has not only to

take into consideration the basic elements

regarding existence of a prima face case, balance

of convenience and irreparable injury, it has also

to take into consideration the conduct of the

parties since grant of injunction is an equitable

relief. It was observed that a person who had kept

quiet for a long time and allowed another to deal

with the property exclusively, ordinarily would not

be entitled to an order of injunction. Mr. Ranjit

Kumar also referred to the recent decision of this
 18

Court in Kishorsinh Ratansinh Jadeja vs. Maruti

Corpn. & Ors. [(2009) 5 Scale 229], in which the

observation made in Mandali Ranganna's case (supra)

was referred to with approval.

20. From the submissions made on behalf of the

respective parties and the materials on record, we

have to see whether the Courts below, including the

High Court, were justified in refusing the

appellant's prayer for grant of interim orders

pending the hearing of the suit. Though the Deed

of Family Settlement has been heavily relied upon

by the Courts below and the Respondents herein, it

will have to be considered whether reliance could

have been placed on the same since the same was not

registered, though it sought to apportion the

shares of the respective co-sharers. It has also

to be seen whether the document could at all be

relied upon since all the co-sharers were not

signatories thereto.
 19

21. As far as the first point is concerned, since

the same is a question of fact and has, on a prima

facie basis, been accepted by the Courts below, we

are not inclined to interfere with the prima facie

view taken that an oral partition had been effected

which had been subsequently reduced into writing as

a Memorandum and not as an actual Deed of

Partition. Of course, these observations are made

only for the purpose of disposal of the Special

Leave Petition and not for disposal of the suit

itself.

22. As far as the second question is concerned, a

Deed of Family Settlement seeking to partition

joint family properties cannot be relied upon

unless signed by all the co-sharers. In the

instant case, admittedly, the Respondent No.8, Sau.

Pratibha, was not a signatory to the Deed of

Settlement dated 8th February, 1967, although, she

is the daughter of Bapu Saheb Kante by his first
 20

wife. As was held in the case of M.N. Aryamurthy

(supra), under the Hindu Law if a Family

Arrangement is not accepted unanimously, it fails

to become a binding precedent on the co-sharers.

Both Mr. Vivek Tankha and Mr. Anoop G. Chaudhary,

learned Senior Advocates, brought this point to our

notice to indicate that all the co-sharers had not

consented to the Deed of Family Settlement which

could not, therefore, be relied upon. The argument

would have had force had it not been for the fact

that acting upon the said Settlement, the

appellants had also executed sale deeds in respect

of the suit property. Having done so, it would not

be open to the appellants to now contend that the

Deed of Family Settlement was invalid.

23. Now, coming to the question of balance of

convenience and inconvenience and irreparable loss

and injury, it has to be kept in mind that the

Respondent No.10 has already acquired rights in
 21

respect of the share of the Respondent Nos.8 and 9

to the suit property and in the event an interim

order is passed preventing development of the

portion of the property acquired by it, it would

suffer irreparable loss and injury since it would

not be able to utilize the property till the suit

is disposed of, which could take several years at

the original stage, and, thereafter, several more

years at the appellate stages. The appellant

herein has been sufficiently protected by the order

of the High Court impugned in this appeal. While

the Respondent No.10 has been permitted to carry

out construction activities over the disputed land,

it has been restrained from alienating or

transferring the property or from creating any

third party right therein during the pendency of

the suit.

24. As mentioned hereinabove, there is yet another

question which goes against the case made out by
 22

the appellant, viz., that after the Deed of Family

Settlement, even the appellant has executed

Conveyances in respect of portions of the suit

property, thereby supporting the case of the

respondent that the Deed of Family Settlement dated

8th February, 1976, had not only been accepted by

the parties, but had also been acted upon.

25. In such circumstances, we are not inclined to

interfere with the order passed by the High Court,

but we are also concerned that the suit should not

be delayed on one pretext or the other, once such

interim order is granted.

26. We, accordingly, dispose of the appeal by

directing the Trial Court to dispose of the pending

suit within a year from the date of communication

of this judgment. In the meantime, the co-sharers

to the suit property shall not create any third

party rights or encumber or transfer their

respective shares in the suit property in any
 23

manner whatsoever and all transactions undertaken

in respect thereof shall be subject to the final

decision in the suit.

27. There will be no order as to costs.

 ................................................J.
 (ALTAMAS KABIR)

 ................................................J.
 (CYRIAC JOSEPH)
New Delhi,
Dated: December 15, 2009.

About advocatemmmohan

ADVOCATE

Blog Stats

  • 2,887,732 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: