C.R.No.3477 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3477 of 2010 Date of Decision: 23 .11.2011 Satwinder Pal Singh and another ....Petitioners Versus Shri Inderjit Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. M.L. Sarin, Senior Advocate with Mr. Nitin Sarin, Advocate for the petitioners. Mr. Sumeet Mahajan, Senior Advocate with Mr. Vaibhav Sehgal, Advocate for respondent Nos.1 to 3. None for respondent No.4. JASWANT SINGH, J Plaintiffs-petitioners have filed the present petition under Article 227 of the Constitution praying for setting aside the impugned order dated 24.12.2009 (P.7) passed by the learned Addl. Civil Judge (Sr. Division), Ludhiana whereby their application under Order 39 Rules 1 & 2 CPC for grant of interim injunction has been dismissed and judgment dated 24.2.2010 passed by the learned Additional District Judge, Ludhiana vide which an appeal against the aforesaid order has also been dismissed. Brief facts of the case are that the plaintiffs-petitioners filed a Civil Suit No.141 dated 6.6.2009 (P.2) for declaration and mandatory injunction with a consequential relief of partition regarding the suit property described in the head note of the plaint. Along with the suit, C.R.No.3477 of 2010 #2# an application (P.3) under Order 39 Rules 1 & 2 CPC for grant of ad interim injunction was also filed. Upon notice, the civil suit as well as the application were opposed by the defendants-respondent Nos.1 to 3 by filing their written statement/reply (P.4 & P.5) respectively and after hearing both the sides, learned trial Court dismissed the application vide order dated 24.12.2009 (P.7). Aggrieved against the order dated 24.12.2009, an appeal was preferred by the plaintiffs-petitioners, which has also been dismissed by the learned Additional District Judge, Ludhiana vide impugned judgment dated 24.2.2010 (P.8), hence the present petition. Learned counsel for the plaintiffs-petitioners argues that both the courts have seriously erred while not granting the interim injunction in their favour in view of the fact that in the present case there is a family dispute between one brother along with his mother on one side (plaintiffs-petitioners) and remaining three brothers on the other side (defendants-respondents) and in view of the family settlement, status quo was the best remedy between the parties during the pendency of the civil suit otherwise the very purpose of filing the civil suit shall be frustrated. It is further argued that once family settlement is there, the same is per se admissible for the purposes of interim injunction and there is no need for registration of the said Settlement Deed at all. In support, learned counsel cites judgments of Hon'ble Supreme Court reported as Kale v. Deputy Director of Consolidation, AIR 1976 SC 807, Amteshwar Anand v. Virender C.R.No.3477 of 2010 #3# Mohan Singh 2006 (1) SCC 148 and Manish Mohan Sharma v. Ram Bahadur Thakur, 2006 (4) SCC 416, Maharwal Khewaji Trust (Regd) v. Baldev Dass, AIR 2005 SC 104, 2010(1) SCC 379 Julien Education Trust v. Sourendra Kr Roy and others. On the other hand, learned counsel for the respondents argues that the order/judgment passed by both the courts below are perfectly legal and justified and do not warrant any interference by this Court while exercising powers under Article 227 of the Constitution as there is no error of jurisdiction and in view of the settled preposition of law, the discretion exercised by the courts below in the matter of interim injunction should not be interfered until and unless the order(s) is/are palpably wrong. It is further argued that the alleged family settlement dated 18.6.2008 is a result of fraud committed by the plaintiffs-petitioners in connivance with the marginal witnesses and the same being an unregistered document is neither admissible in law nor helpful to the plaintiffs-petitioners for grant of interim injunction. It is further argued that both the courts have found that no prima facie case is made out in favour of the plaintiffs-petitioners, hence in view of the law laid down by Hon'ble Supreme Court in Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy 2010 (1) RCR (Civil) 581, the impugned order does not require any interference by this court. After hearing learned counsel for the parties and perusing the paper book, this court does not find any merit in the present petition and the same deserves dismissal. C.R.No.3477 of 2010 #4# Before proceeding further, it is apposite to narrate brief factual background of the case. It is stated that plaintiff-petitioner No.1 and defendants-respondents are the sons of late Sh. Satnam Singh and plaintiffs-petitioner No.2/Smt Sunderjit Kaur is their mother. It is alleged that Satnam Singh died on 11.6.2007 and during his life time, the family was running a business under the name and style of M/s Arora Manufacturing Company under overall supervision and control of business with said Satnam Singh, which used to make Padlocks under the brand name AMCO. With the expansion of business, another firm/companies were also formed/incorporated and various properties were purchased as described in the head note of the plaint. It is further alleged that after the death of said Satnam Singh, differences/disputes arose between the parties and an oral family partition took place on 16.6.2008 and the same was reduced into writing vide Memorandum dated 18.6.2008 (P.1) thereby giving respective shares to the parties/individual. It is alleged by the plaintiffs-petitioners that family settlement had been acted upon by the parties but defendants/respondent Nos.1 to 3 were not coming forward to execute the necessary documents in terms of the settlement (P.1) due to their dishonest intention and in order to defeat the lawful rights of plaintiffs-petitioners as well as defendant-respondent No.4. In the written statement as well as reply (P.4 & P.5) respectively filed on behalf of defendants-respondent Nos.1 to 3, the claim of the plaintiffs-petitioners has been serious disputed by alleging C.R.No.3477 of 2010 #5# that all the properties mentioned in the plaint are self acquired by individuals and there is neither any HUF property nor income tax return in the name of HUF. So far as alleged family settlement dated 18.6.2008 is concerned, it is alleged that the same is the result of fraud and misrepresentation committed by the plaintiffs-petitioners, defendant No.4 along with Pritam Singh Sapra and Rajinder Singh Sapra being the marginal witnesses and admittedly, who are real brothers of plaintiff-petitioner No.2 and thus maternal uncles of defendants. It is also denied that such a family settlement has ever been acted upon by the parties. It has also been submitted that relation between their father-Satnam Singh and plaintiff No.2(mother) remained strained as number of court cases were filed between Satnam Singh and his wife-plaintiff No.2 Sunderjit Kaur during the period 1963 to 1980, and as such no question arises for overall supervision and control of business by said Satnam Singh. A perusal of order dated 24.12.2009 passed by the learned trial Court reveals that there is nothing on record to substantiate that the properties mentioned in the head note of the plaint were ever purchased from the joint funds of the parties. The execution of family settlement dated 18.6.2008 is denied by the defendants-respondents on the ground that their signatures were obtained on blank papers. In view of this, when both the parties are yet to lead evidence to prove their respective claims, no prima facie case was found by the ld. Trial Court in favour of the plaintiffs-petitioners for grant of interim injunction. C.R.No.3477 of 2010 #6# A further perusal of the judgment dated 24.2.2010 passed by the learned Additional District Judge also clearly reveals that the suit properties are either in the name of persons, who are not the parties to the civil suit or in the names of individuals, who have purchased the same in their names by withdrawing the amount of consideration from their respective bank accounts and there is nothing on record to show that the suit properties were purchased from joint family funds. So far as the family settlement dated 18.6.2008 is concerned, it has been observed that the genuineness of the same shall be proved after leading the evidence by both the parties. It is further observed that plaintiff- petitioner No.1 had even sold property shown at Serial No.B of the plaint yet the same was included in the suit and injunction was sought against the defendants-respondents although the same is owned by one Surekha Lamba and as such the Court came to the conclusion that the appellant had not come to the court with clean hands. In addition to the non-existence of prima facie case, no irreparable loss and balance of convenience in favour of the plaintiff-petitioners was found by both the courts below. Keeping in view the factual matrix of the case, it is apparently clear that the whole basis of the plaintiff-petitioners seeking interim injunction is the so called memorandum of family settlement dated 18.6.2008 (P.1) and the very execution of the same is strongly denied by defendant-respondent Nos.1 to 3. Even the perusal of the family settlement itself reveals that in case of any violation of any C.R.No.3477 of 2010 #7# terms and conditions of the settlement, the parties concerned shall have a right to approach the competent court of law in order to get his/her share/relief and the relevant part reads as under: “This Family Settlement has been arrived at with free consent of each party, without any pressure or coercion from any corner and with free will and violation and keeping in view to maintain future relations beteween the parties. It is binding upon the parties as well as their successors agents, legal heirs and in case of violation of any of the terms and conditions of this writing, the parties concerned shall have every right to approach competent court of law in order to get his/her share/relief.”(emphasis supplied). Thus, a glance of aforesaid part of family settlement itself goes to show that in case of any grievance i.e rights being disputed, the aggrieved party may go to the Court of competent jurisdiction to get his/her share but in view of the facts and circumstances of the present case, it is not discernible that the alleged family settlement would be per se admissible and can be a basis to form an opinion regarding the existence of a prima facie case in favour of the plaintiffs-petitioners for the grant of interim injunction when its execution is strongly refuted being the result of fraud and misrepresentation and the alleged rights being created/conferred (if at all) for the first time by an unregistered document dated 18.6.2008 (P.1) So far as the judgment of Hon'ble the Supreme Court in Kale's case (supra) is concerned, the same is not helpful to the C.R.No.3477 of 2010 #8# plaintiffs-petitioners rather the same goes against them and for this purpose, it is necessary to refer para 10 of this judgment, which reads as under: “10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property ’It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or C.R.No.3477 of 2010 #9# titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” A perusal of paragraph 10 clearly reveals that family settlement must be bona fide, and the same should be voluntary and it should not be the result of fraud etc. It is clearly held by Hon'ble Supreme Court that the registration of family settlement would be necessary if the terms of family arrangements are reduced into writing whereas in case the memorandum itself does not create or extinguish any rights in immovable property, the same does not require compulsory registration. It has further been held by Hon'ble Supreme Court that members, who may be parties in the family arrangement must have some antecedent, title, claim or interest in the property, which is acknowledged by parties to the settlement. In the present case, the bona fide in the execution of the alleged family settlement dated 18.6.2008 is seriously disputed by the defendants-respondent Nos.1 to 3 as the same is alleged to have been the result of fraud played by plaintiffs-petitioners in connivance with its marginal witnesses, namely, Pritam Singh Sapra and Rajinder Singh Sapra being the real brothers of plaintiff-petitioner No.2. Further more, both the courts have concurrently found that there is no evidence C.R.No.3477 of 2010 #10# available on record to prove that the suit properties were purchased from the funds of joint family properties rather the evidence is that the same were purchased by the individuals from their own sources and as such no prima facie case is made out in favour of the plaintiffs- petitioners for their entitlement. Still further, in fact, the plaintiffs- petitioners have been unable to show that they are having any pre- existing rights in the suit property rather only on the basis of the alleged family settlement dated 18.6.2008 (P.1), they are trying to derive their rights for the first time, which is yet to be proved. The language of the so-called family settlement dated 18.6.2008 does not indicate the confirmation of any pre-existing right. In fact, it only creates right in prasenti. The very language of the memorandum which records that “this family settlement is being written on 18.6.2008 (P.1) and in order to settle the dispute between the parties with the intervention of the respectables, close relatives, the present indent of family settlement is being arrived at between the parties to this writing” (emphasis supplied) would show that the rights are being created in prasenti in favour of the plaintiffs. Thus, the aforesaid family settlement would be required to be compulsorily registered under Section 17 (2) (vi) of the Registration Act as held by their Lordships of Hon'ble Supreme Court in Maturi Pullaiah and another v. Maturi Narsimha and others, AIR 1966 SC 1836. It is admitted case of the parties that the aforesaid family settlement is an un- registered document, therefore, no prima facie reliance can be placed C.R.No.3477 of 2010 #11# on the same to claim ownership in some of the suit properties. Therefore, the preposition of law laid down by Hon'ble Supreme Court in Kale's case (supra) goes against the plaintiffs-petitioners in stead of supporting their case. In Amteshwar Anand's case (supra), the question for consideration before the Hon'ble Supreme Court was whether the dispute between the parties was set at rest by a valid consent decree dated 25.8.1993 in civil suit No.63 of 1975 and suit No.1495 of 1989 or not. Even otherwise, in that case the parties had agreed mutually to receive the benefit under the agreement/arrangement but in the present case, the defendants-respondents are strongly disputing that any benefit by the parties has been received on the basis of family settlement dated 18.6.2008 rather its execution is denied from the very beginning and as such the same is not applicable to the facts and circumstances of the present case. In Manish Mohan Sharma's case (supra) by an order dated 19.8.1999, the Company Law Board resolved the dispute between the parties and suggested various terms of settlement to resolve the matter amicably between the parties having regard to their close relationship and subsequently an application was filed on 5.7.2000 by one group seeking recalling of the order dated 19.8.1999 and to take up the matter for final hearing and in these circumstances, the Company law Board vide order dated 18.8.2000 rejected the application but observed as under: C.R.No.3477 of 2010 #12# “In case the parties still desire to have the disputes decided amicably, they are at liberty to do so failing which the petition will have to be heard on merits and till that time all the interim orders including the present arrangement in relation to the management of the affairs of the Company will continue.” Aggrieved against the above order and observation, the other group carried the matter before the High Court of Patna in an appeal under Section 10-F of the Companies Act, 1956 but the same was also dismissed and ultimately the matter went before the Hon'ble Supreme Court wherein it was urged that the court could not refuse to implement the consent order dated 19.8.1999 passed by the Company Law Board and in these circumstances, Hon'ble the Supreme Court held that the settlement was binding between the parties and a direction was issued to execute the order dated 19.8.1999 in accordance with law. Thus, the same is clearly distinguishable to the facts of the present case as in the present case, there is no consent order passed by any court of competent jurisdiction rather the whole basis is the alleged settlement dated 18.6.2008 and its execution is being denied by the defendants-respondent Nos.1 to 3. So far as the judgment in Maharwal Khewaji Trust's case (supra) is concerned, the same is also not helpful to the petitioners as in that case initially the interim injunction was granted by the learned trial court in favour of the plaintiffs-appellants and the defendants- respondents were restrained from alienating the suit property or raising construction thereon but in appeal the order of interim injunction was C.R.No.3477 of 2010 #13# set aside subject to the observation of law of lis pendense and construction if any, would be removed at the risks and costs of the defendants-respondents and revision there-against was dismissed. In these circumstances, the order of appellate court and revisional court were set aside whereas in the present case, both the courts have concurrently declined to grant the interim injunction in favour of the plaintiffs-petitioners and no such direction like in Maharwal Khewaji Trust's case (supra) was issued in favour of the defendants- respondents. In other words, in that case, the discretion exercised in favour of the plaintiffs-appellants while granting temporary injunction was reversed by the learned first appellate court and upheld by the High Court but in the present case, the position is entirely different. In Julien Education Trust's case (supra) also, the position is entirely different as in that case, suit for specific performance was pending before the learned trial Court and an application for grant of interim injunction was filed, which was allowed on 16.1.2008 but in an appeal, the High Court set aside the injunction order with the result the suit for specific performance filed by the plaintiff-appellant was virtually rendered infructuous and in these circumstances, the Hon'ble Supreme Court directed to maintain the status quo of the suit property during the pendency of the suit for specific performance but in the present case, neither there is any suit for specific performance nor any discretion was exercised by the learned trial Court in favour of the plaintiff-petitioner. Rather both the C.R.No.3477 of 2010 #14# courts have concurrently gone against the plaintiffs-petitioners. Undisputedly, both the courts have exercised their discretion by specifically recording a finding that on the basis of material on record, no prima facie case is made in favour of the plaintiffs-petitioners and this court also supports the view expressed by both the courts below and in view of the law laid down by Hon'ble Supreme Court in its judgment reported as Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy 2010 (1) RCR (Civil) 581 when no prima facie case is made out in favour of a party, the question of considering the balance of convenience or irreparable loss would not be material at all. The relevant part of the judgment reads as under: “But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.” In view of the aforesaid discussion, this Court does not find any illegality or perversity in the impugned order/judgment passed by both the courts below warranting interference under Article 227 of the Constitution. Dismissed. November 23, 2011 ( JASWANT SINGH ) manoj JUDGE C.R.No.3477 of 2010 #15#