TMI Blog2009 (12) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 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 bounds. Under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kha 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 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 signator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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