2009 (12) TMI 1027 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the Family Settlement and its requirement for registration.
2. Entitlement to temporary injunction and balance of convenience.
3. Impact of non-signature by all co-sharers on the Family Settlement.

Summary:

1. Validity of the Family Settlement and its requirement for registration:
The appellant challenged the Family Settlement dated 8th February 1967, arguing it was a Deed of Partition requiring registration u/s 17 of the Registration Act, 1908. The High Court held that the document was a Memorandum of Partition, recording a previous oral partition, and thus did not require registration. The Supreme Court upheld this view, noting that the document was a Memorandum and not an actual Deed of Partition, and hence, did not necessitate registration.

2. Entitlement to temporary injunction and balance of convenience:
The appellant sought a temporary injunction to prevent the respondents from dealing with the property, arguing that no partition by metes and bounds had occurred. The Trial Court and High Court denied the injunction, reasoning that a partition had been effected and the Family Settlement had been acted upon. The Supreme Court agreed, emphasizing that the balance of convenience and irreparable injury favored the respondents, who had already acquired rights and would suffer loss if development was halted. The Court noted that the appellant was protected by the High Court's order, which allowed construction but restrained alienation or transfer of the property.

3. Impact of non-signature by all co-sharers on the Family Settlement:
The appellant contended that the Family Settlement was invalid as not all co-sharers, specifically Sau. Pratibha, had signed it. The Supreme Court acknowledged that a Family Settlement must be accepted unanimously to be binding. However, it noted that the appellant had acted upon the Settlement by executing sale deeds, thus estopping them from challenging its validity. The Court held that the Settlement had been accepted and acted upon by the parties, making it binding despite the non-signature of one co-sharer.

Conclusion:
The Supreme Court dismissed the appeal, directing the Trial Court to dispose of the suit within a year and restraining the co-sharers from creating third-party rights or transferring their shares during the pendency of the suit. The Court emphasized the need for expeditious resolution and maintained the High Court's interim order allowing construction but preventing alienation.