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2009(8) Supreme 519
SUPREME COURT OF INDIA
Altamas Kabir & Cyriac Joseph, JJ.
Narendra Kante — Appellant
versus
Anuradha Kante & Ors. — Respondents
Civil Appeal No. 8290 of 2009
@ Special Leave Petition (C) 27909 of 2008).
Decided on : 15-12-2009
Facts of the Case :
Present Appeal has been filed against judgment and order passed by High Court dismissing Miscellaneous Appeal filed by appellant. The said Miscellaneous Appeal had been preferred by appellant against the order passed by 5th Additional District Judge, in Civil Suit filed by appellant rejecting the appellant’s application under Order 39 Rules 1 and 2 of Cpc.
Findings of the Court :
Though the Deed of Family Settlement had been heavily relied upon by Courts below and the Respondents it had 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. Held since the same was a question of fact and had, on a prima facie basis, been accepted by the Courts below, no interference was called for 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 . Again 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, was not a signatory to the Deed of Settlement although, she was the daughter of original owner .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. There was yet, another question which went against the case made out by the appellant, viz., that after the Deed of Family Settlement, even the appellant had executed Conveyances In respect of portions of the suit property, thereby supporting the case of the respondent that the Deed of Family Settlement dated 8.02. 1976, had not only been· accepted by the parties, but had also been acted upon. In such circumstances, no interference called for with the order passed by the High Court.Appeal was disposed of directing the Trial Court to dispose of the pending suit within a year. In the meantime, direction given that 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 whatsoever and all transactions undertaken in respect thereof shall be subject to the final decision in the suit.
Result : Appeal disposed of.
Certainly. Based on the provided legal document, here are the key points:
A Deed of Family Settlement that seeks to partition joint family properties cannot be relied upon unless it is signed by all the co-sharers. The absence of signatures from all co-sharers renders the deed invalid for establishing a partition (!) (!) .
The validity of a family settlement does not require registration if it is an oral agreement that has been acted upon, or if it is a memorandum recording an already agreed-upon settlement, provided it does not transfer property rights directly. However, a deed of settlement that functions as a partition must be registered if it involves a transfer of rights, especially when not all co-sharers have signed (!) (!) .
The courts have accepted that an oral partition, subsequently documented as a memorandum, can be considered valid, especially when acted upon by the parties, even if the document was not registered. The question of whether a partition has been effected is a question of fact, and courts' prima facie findings are generally upheld unless clearly erroneous (!) .
The conduct of the parties, such as executing sale deeds and dealing with the property in accordance with the alleged partition, can be evidence that the partition was accepted and acted upon, even if the formal deed was not signed by all co-sharers (!) (!) .
The courts have held that reliance on a family settlement or memorandum for the purpose of apportioning shares is permissible even if the document was not registered, provided it is not a transfer of property rights requiring registration. The memorandum can serve as evidence of the parties' agreement and acts as an estoppel against them (!) (!) .
The courts emphasized that the balance of convenience and potential for irreparable injury favor allowing development or transfer rights to bona fide purchasers or transferees, provided that the substantive issues are properly adjudicated later. Interim orders should not cause undue hardship or irreparable loss to any party (!) (!) .
The courts have directed that the pending suit must be disposed of within a specified period, and until then, the co-sharers are restrained from creating third-party rights, encumbering, or transferring their shares in the property. All transactions are subject to the final outcome of the suit (!) .
The courts have recognized that a family settlement or memorandum, even if not registered, can operate as a binding estoppel against parties who have acted upon it, provided it reflects an agreement that was mutually accepted and acted upon (!) (!) .
The courts have reiterated that the primary consideration in granting interim relief is the conduct of the parties, the prima facie strength of their case, and the potential for irreparable harm, rather than solely the formalities of documentation (!) (!) .
Overall, the decision emphasizes that formal registration and signatures are critical for certain types of property transfers or partitions, but the actual conduct and acts of the parties can establish the existence and acceptance of a partition or settlement for the purposes of interim relief and substantive adjudication (!) (!) (!) .
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JUDGMENT
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 appellant against the had been preferred by 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 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 arid 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 Kantea 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 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.7 6 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 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 filed by the predecessor-in-interest of Jai Rao was dismissed. A Letters Patent A
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