2002 Supreme(Bom) 20

IN THE HIGH COURT OF BOMBAY
S.J. Vazifdar, J.
P.N. Wankudre .... Appellant.
Versus
C.S. Wankudre others.... Respondents.
Appeal From Order No. 762 of 2001, decided on 9-1-2002.
Advocates appeared :
N.V. Walawalkar i/b. A.B. Borkar, for appellant.
A.A. Kumbhakoni, for respondent Nos. 2 3.

Headnote:Civil Procedure Code, 1908- Order I, Rule 10 - Order XXXIX, Rules 1 and 2 - Injunction suit - Hindu joint family property - Non joinder of necessary parties - Partition of - Claimed against brothers of decease husband - Brothers of deceased/ defendants No. 1 and 2 cannot develop property and create third party interest - third party interest already treated not made party to suit for injunction - Held - Third party rights have intervened and not made parties to dispute - Discretionary relief of injunction cannot be granted - Grant of any injunction would prejudiced respondents - Refusal of injunction would cause no harm to appellant. - The trial Court has also rightly held that the balance of convenience is in favour of respondent Nos. 2 and 3. It is they who protected and preserved the said plots. It is they who prosecuted the litigations at their expense to safeguard their interest in the property. All this while the appellant said and did nothing Loans have been taken against the said property and respondent Nos. 2 and 3 have altered their position to their detriment. Third party rights have now intervened. Yet the appellant has made no attempt to make them parties to the litigation. In these circumstances, it will be highly unjust and unfair to grant the discretionary reliefs of an injunction in favour of the appellant. Any injunction would cause grave harm and irreparable injury to respondent Nos. 2 and 3. On the other hand, if an injunction is refused, the appellant will suffer no harm or injury.

       Civil Procedure Code, 1908 - Order I, Rule 10 - Order XXXIX, Rules 1 and 2 - Injunction suit - Hindu joint family property - Non joinder of necessary parties - Partition of - Claimed against brothers of decease husband - Brothers of deceased/ defendants No. 1 and 2 cannot develop property and create third party interest - third party interest already treated not made party to suit for injunction - Held - Third party rights have intervened and not made parties to dispute - Discretionary relief of injunction cannot be granted - Grant of any injunction would prejudiced respondents - Refusal of injunction would cause no harm to appellant. - The trial Court has also rightly held that the balance of convenience is in favour of respondent Nos. 2 and 3. It is they who protected and preserved the said plots. It is they who prosecuted the litigations at their expense to safeguard their interest in the property. All this while the appellant said and did nothing Loans have been taken against the said property and respondent Nos. 2 and 3 have altered their position to their detriment. Third party rights have now intervened. Yet the appellant has made no attempt to make them parties to the litigation. In these circumstances, it will be highly unjust and unfair to grant the discretionary reliefs of an injunction in favour of the appellant. Any injunction would cause grave harm and irreparable injury to respondent Nos. 2 and 3. On the other hand, if an injunction is refused, the appellant will suffer no harm or injury.

       Civil Procedure Code, 1908 - Order I, Rule 10 - Order XXXIX, Rules 1 and 2 - Injunction suit - Hindu joint family property - Non joinder of necessary parties - Partition of - Claimed against brothers of decease husband - Brothers of deceased/ defendants No. 1 and 2 cannot develop property and create third party interest - third party interest already treated not made party to suit for injunction - Held - Third party rights have intervened and not made parties to dispute - Discretionary relief of injunction cannot be granted - Grant of any injunction would prejudiced respondents - Refusal of injunction would cause no harm to appellant. - The trial Court has also rightly held that the balance of convenience is in favour of respondent Nos. 2 and 3. It is they who protected and preserved the said plots. It is they who prosecuted the litigations at their expense to safeguard their interest in the property. All this while the appellant said and did nothing Loans have been taken against the said property and respondent Nos. 2 and 3 have altered their position to their detriment. Third party rights have now intervened. Yet the appellant has made no attempt to make them parties to the litigation. In these circumstances, it will be highly unjust and unfair to grant the discretionary reliefs of an injunction in favour of the appellant. Any injunction would cause grave harm and irreparable injury to respondent Nos. 2 and 3. On the other hand, if an injunction is refused, the appellant will suffer no harm or injury.

       Evidence Act, 1872 - Section 115 - Estoppel - Joint Hindu family property - Partition of by family arrangement - Memorandum recording terms thereof - Unregistered - Agreement of partition - Later on appellants mother-in-law gifted her shave to other sons by registered gift deed - Not objected by appellant and her husband - Plea of appellant that no partition by metes a bounds - Other sons defendants No. 1 and 2 cannot claim right in gifted properties - Held - Appellant and her husband acted upon memorandum and agreement - Derived benefits of - Not raised objection for more than one decade - Conduct of appellant operate as an estopped - She cannot try to revoke arrangement - They are prevented from resiling from arrangements. - Further as stated above, the appellants husband through whom the appellant claims, had acted upon the said documents and had derived benefit thereunder. The appellant herself also affirmed the agreements as stated above and further raised no objection in respect thereof for a number of years. In such circumstances even assuming that the documents were required to be registered, their conduct operated as an estoppel preventing them from resiling from the arrangements.

        Registration Act, 1908 - Section 17 - Joint Hindu family property - Partition of - Parties acting upon family arrangement - Memorandum recording terms - Con- tended that memorandum being unregistered document cannot create right in favour of parties - Held - Memorandum recorded before arrangement - Acted upon by parties - Registration of memorandum not necessary - As it not create or extinguish any rights in immovable property. - Faced with this situation, Mr. Walawalkar submitted that the memorandum of 4th May, 1953, was not a registered document and therefore cannot create any right in favour of the parties thereto. Firstly the memorandum of 4th May, 1953 and the agreement of 8th October, 1959 are in substance family arrangements arrived at with a view to availing any escalation in the disputes which already existed between the family members. This is clear from the documents. More- over as stated above, the memorandum of 4th May, 1953 merely recorded the prior arrangement of 29th April 1953 which had even been acted upon. Registration of such a document is not necessary.

       Registration Act, 1908 - Section 17(1)(b) - Registration of document - Immovable property - Memorandum in substance family arrangement - Subsequent family agreement - Acted upon and derived benefit thereunder - No objection by appellant - Registration of such document not necessary. - The memorandum of 4th May, 1953 and the agreement of 8th October, 1959 are in substance family arrangements arrived at with a view to avoiding any escalation in the disputes which already existed between the family members. This is clear from the documents. Moreover as stated above, the memorandum of 4th May, 1953 merely recorded the prior arrangement of 29th April, 1953 which had even been acted upon. Registration of such a document is not necessary.

        The appellant s husband through whom the appellant claims had acted upon the said documents and had derived benefit thereunder. The appellant herself also affirmed the agreements as stated above and further raised no objection in respect thereof for a number of years. In such circumstances even assuming that the documents were required to be registered their conduct operated as an estoppel preventing them from resiling from the arrangement