LexNARENDRA KANTE versus ANURADHA KANTE & ORS.
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[2009] 16 (ADDL.) S.C.R'. 491 NARENDRA KANTE A v. ANURADHA KANTE & ORS. (Civil Appeal No. 8290 of 2009) DECEMBER 15, 2009 B [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] Code of Civil Procedure, 1908: " Or. 39, r. 1 - Temporary injunction - Suit for declaration and permanent injunction claiming suit property as ancestral c property- Application for temporary injunction rejected by trial court holding that suit properties had already been partitioned and a deed of family settlement had been executed - High Court declining to interfere - Reliance upon deed of family settlement though not signed by one of the co-sharers - D HELD: Factum of partition being a question of fact, prima facie view taken by courts below, for purposes of interim order, that oral partition had been effected, not interfered with - Deed of family settlement cannot be relied upon unless signed by all co-sharers - However, plaintiff, acting upon the said settlement, having executed sale deeds, it would not be open E to him to question the deed of settlement - Keeping in view the balance of convenience and irreparable loss, the High Court while declining to grant temporary injunction has protected the interests of plaintiff by restraining the purchaser from alienating or transferring the property or from creating F any third party rights therein during pendency of suit - Order of High Court not interfered. with - Trial court would dispose of the suit expeditiously- Till then co-sharers would not create any third party right in respect of their shares in the suit property - Deeds and documents - Deed of family settlement G - Evidentiary value of The appellant filed a suit for declaration and permanent injunction as also mandatory injunC:tion in 491 H 492 SUPREME·COURT REPORTS [2009] 16 (ADDL.) S.C.R. A respect of the suit property claiming it to be ancestral property of his father. It was the case of the plaintiff that though a partition deed was executed on 8.2.1967, but it was only with the intention of giving a separate share to his step-brother, and rest of the properties remained joint B as there was no partition by metes and bounds; that defendants 1 and 2 had no right to execute the agreement and Special Powers of Attorney dated 27.11.2004 in respect of the suit property in favour of defendants 8 and 9 nor did defendants 8 and 9 have any C right to execute the sale deed dated 31.3.2006 in favour of defendant no. 10. The plaintiff-appellant 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 0 on the defendants to remove the wall which had been erected in the suit property. An application for interim injunction was also filed, which was rejected by the trial court holding that a partition had been effected between the legal heirs concerned and their names were recorded in the municipal records and a deed of family settlement E dated 8.2.1967 was executed. The dee~ of family settlement dated 8.2.1967 and the partition had been upheld in an earlier litigation arising out of a suit filed by the plaintiff-appellant which suit was decreed partly in his \ favour. In the miscellaneous appeal filed by the plaintiff- F appellant against the order of the trial court rejecting the application for interim injunction, the High Court declined to interfere. In the instant appeal filed by the plaintiff, the G questions for consideration before the Court were: (i) whether reliance could be placed on the family settlement dated 8.2.1967 since the same was not registered, thought it sought to apportion the shares of the respective co-sharers; and (ii) whether the family H settlement could at all be relied upon since all the co- • NARENDRA KANTE v. ANURADHA KANTE & ORS. 493 sharers were not signatories thereto. A Dismissing the appeal, the Court HELD: 1.1. As far as factum of partition is concerned, the same being a question of fact, this Court is not inclined to interfere with the prima facie view taken by the B courts below, for the purpose of interim order, that an oral partition had been effected which had been 4 subsequently reduced into writing as a Memorandum and not as an actual Deed of Partition. [Para 21] (503-B-C] 1.2. As regards the placing of reliance on the Deed c of Family Settlement seeking to partition joint family properties, the same
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