advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, September 9, 2016

Deed of Family Settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers ? = 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 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. As mentioned hereinabove, there is yet another question which goes against the case made out by 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.

               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.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.