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

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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.   

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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  

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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.   

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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  

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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  

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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  

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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  

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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.

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