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.
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.
