This Court is of the view that this agreement dated 22.6.1988 and family arrangement dated 1.8.1988 do not run counter to each other in substance. They supplement each other. Nothing contrary can be found from the agreement or the family arrangement. It appears from the record that Anand Kumar Nigam who was appointed as the President of the Executive Committee known as late Smt. Chanda Bai Nigam Smriti Sanstha Chanda Nagar entered into an agreement for sale of a portion of the property with the appellant No.5 and subsequently executed a sale-deed in favour of the appellant No.5. A perusal of the agreement would show that Anand Kumar Nigam claimed that he was executing this agreement in the capacity of the President of the Executive Committee aforesaid. However while signing the document he has stated that he was the Parivarik Karta. The agreement was endorsed and ratified subsequently by all the ten male members of the family who had also signed a family settelement. Therefore, apparently Anand Kumar Nigam was armed with an authority of all the male members to go ahead and execute the sale deed. Accordingly, appellant No.2 Anand Kumar Nigam executed the sale deed in favour of the appellant No.5 on 30.8.1990. Subsequently on 15.10.1990 a notice was sent by the respondents no.1 to 4 challangeing the sale-deed and cancelling the family arrangement. It is apparent from the conduct of the respondents No.1 to 4 that till the stage of execution of sale-deed they had no objection to the agreement and the family arrangement. It appears to this Court that they wanted to abide by the earlier agreements even when the appellant No.2 executed the agreement with appellant No.5. Otherwise there was no reason to say that they had consented to the document and signed. It is, therefore, difficult for this Court to hold that the earlier agreement or the family settlement could not authorise Anand Kumar Nigam to execute the sale-deed for the purpose for which family settlement was made and the agreement to the same effect was executed. In fact there is the equitable consideration that a person or a party acting upon the action of others cannot be permitted to jeopardise his own right when the persons giving express or implied consent changed their mind. In other words a sort of principle of estoppel would operate against the respondents No.1 to 4 to subsequently cancel the agreement or the family settlement unilaterally without any cause. Further the respondents No.1 to 4 cannot act to the detriment of the appellant No.5 because it had purchased the suit property by the sale-deed signed by the appellant No.2 Anand Kumar Nigam at the instance of the other male members of the family. The respondents No.1 to 4 did not object and therefore, they cannot turn around and say that the family arrangement was incorrect. Moreover, even if we hold that the action of appellant No.2 Anand kumar Nigam in transferring a portion of the property in dispute was illegal and unauthorised, the remedy lay in getting the sale-deed set aside rather than questioning the family settlement solemnly agreed to with a avowed purpose of houring Smt. Chanda Bai, the mother of the three elder members of the family.
IN THE HIGH COURT OF MADHYA PRADESH
M.A. No. 1334 of 1997 (J)
Decided On: 28.09.2000
Radhey Saran Nigam Vs. Smt. Jyoti Shrivastava & Ors.
Hon'ble Judges/Coram:
S.C. Pandey, J.
Citation: AIR 2001 NOC 116 MP
This is an appeal against order dated 27.2.1997 passed by Additional District Judge, Narsinghpur in Civil Suit No. 3-A of 1995. This appeal is filed by the defendants No. 1, 2, 3, 4, and 7 against the respondents no. 1, 2, 3, and 4 who are the plaintiffs and the other defendants-respondents No. 5, 6 and 7. It appears that another appeal has been filed on behalf of the defendant No.4 registered as Misc. Appeal No. 585 of 1997 on 8.5.1997 and therefore, it would be proper to hold that the subsequent appeal filed on behalf of the appellant No.4 on 13.10.1997 was not proper. Consequently it would be deemed as that the appellant no.4 had not filed Misc. Appeal No.1334 of 1997. However, this would not affect Misc. Appeal No. 585 of 1997 and the disposal of Misc. Appeal No. 1334 of 1997 shall govern the disposal of Misc. Appeal No.585 of 1997.
The respondents No. 1, 2, 3 and 4 filed a suit for declaration and parmanent injunction against the appellants and the respondents no. 5, 6 and 7 in respect of suit property. The respondents no. 1 to 4 prayed that it be declared that the respondents No. 1,2,3 and 4 and the appellant No.1 are the co-owners of the suit land and the other appellants no. 3, 4 & 5 and respondents no. 6 and 7 had no right and title to the suit land. It was further prayed that the sale-deed executed by the appellants No. 2, 3 and 4 and respondents no.5 and 6 in favour of the respondent no.7 is illegal and void. It was further claimed that a permanent injunction be issued by the Court in favour of the respondents No. 1 to 4 against the appellants and respondents no. 5, 6 and 7 restraining them from making any construction or investment over the suit land. It was further prayed that the aforesaid persons be restrained from transferring the suit land to any other person.
Shortly stated, the case of the respondents no.1 to 4 was that Smt. Chanda Bai was the owner of the suit land. She was the mother of Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam. Guru Saran Nigam was the original plaintiff No.1 who died during the pendency of the suit. His name was deleted and in his place Smt. Jyoti Shrivastava has been brought on record. The respondent no.3 is son of respondent Guru Saran Nigam and respondent no.4 is son of Gyan Saran Nigam. They are plaintiffs. It was claimed by the plaintiffs against the respondents No. 1, 2, 3, and 4 that Smt. Chanda Bai was the owner of agricultural land Khasra No. 101 area 2.991 Hactares and Khasra No. 212/1 area 3.056 Hectares situate in village Kandeli, Tehsil and District Narsinghpur. She had succeeded to aforesaid estate after the death of her father. Consequently her three living sons namely Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam succeeded by her property by operation of law and their names were accordingly mutated.
It is further alleged in the plaint that subsequently the three brothers Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam decided that they shall develop aforesaid land and construct a residential colony and an educational institution. It was further agreed by the three brothers that the names of sons of all the co-owners shall be mutated and they shall be given equal shares in accordcance with a family settlement dated 1.8.1988. It was agreed that in order to meet development cost khasra No. 101 area 2.991 Hectares shall be sold to meet the expenses of development cost upon khasra No. 212/1. It was further alleged that pursuant to the settlement-deed, names of the appellants No.1 to 4 and the respondents No.5 and 6 were mutated alongwith the other owners. However, the appellants No. 1 to 4 and the respondent no.5 executed sale-deed in favour of the respondent No.7 without the consent of the respondent no.1 to 4. According to the plaintiffs execution of the sale-deed was totally illegal because the consent of Guru Saran Nigam and Gyan Saran Nigam who are the true owners alongwith Radhey Saran Nigam was not obtained. It was further alleged that the appellants No.1 to 4 and the respondent no.5 had no authority to sell specific portion of the land by the alleged sale-deed dated 30.8.1990. It was further stated that the aforesaid sale-deed was in violation of the family settlement dated 1.8.1988 and consequently it was cancelled by the respondents No.1 to 4 by the written notice 15.10.1990. The respondents No.1 to 4 further claimed on these facts that declaration and permanent injunction as indicated above be granted to them. After filing of the written statement, the respondents No.1 to 4 amended the plaint and denied that Smt. Chand Bai had executed the Will dated 9.7.1982 in favour of Radhey Saran Nigam. It was claimed that this Will was false and fabricated as Smt. Chanda Bai was an literate lady and was able to sign the will. It was further claimed that after death of Smt. Chanda Bai this Will was not brought into light for a period of nine years and therefore the respondent no. 1 could not claim ownership on the basis of alleged Will which was a forged doument.
It appears that appellant No.1 Radhey Saran Nigam and his son appellant No.2 Anand Kumar Nigam filed written statement to the effect that Chanda Bai was living with Radhey Saran Nigam who used to look after her during her life time after the death of Devi Prasad Nigam, her husband and the father of Radhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam. Guru Saran Nigam and Gyan Saran Nigam were living separately and were in service. Consequently Smt. Chanda Bai had executed a registered power of attorney in favour of appellant No.1 Radhey Saran Nigam. She also executed a Will dated 7.8.1982 in favour of Radhey Saran Nigam and got it registered. However, Radhey Saran Nigam had full love and affection for his two brothers Guru Saran Nigam and Gyan Saran Nigam. He wanted to perpetuate the memory of his mother Smt. Chand Bai and wanted to construct a colony and an educational institution in her name. Therefore, instead of pressing his exclusive right under the Will, Radhey Saran Nigam agreed to execute the deed of family settlement dated 1.8.1988 for developing a colony. It was further pleaded that at that time there was amity peace and good among the three brothers and their three sons and accordingly all the brothers executed a power of attorney in favour of appellant no.2 Anand Kumar Nigam. The three brothers and their sons were shown as owners of the suit property by amending the entry in the revenue records and entering the names of sons of the three brothers. Subsequently the mutation entry was changed on account of cancellation notice dated 15.10.1990. Thereafter, on the basis of a registered Will dated 7.8.1982, the name of appellant No.1 Radhey Saran Nigam was entered into revenue records. It was further alleged that after execution of the family arrangement dated 1.8.1988, agreements dated 6.10.1987 and 25.10.1989 were executed with the consent of the respondents No.1 to 4. Khasra No. 101 was sold for Rs. 1,90,000/-. This amount was not adequate for the development of the khasra No.212/1 and therefore, the appellant No.2 Anand Kumar Nigam had also sold his own house for development of Chanda Nagar Colony in the name of Chanda Bai. It was further alleged that the possession of the suit land was always with the appellant no.1 and appellant no.2 and not with the respondents No.1 to 4.
Respondent No.6 Prem Kumar Nigam also claimed that the interlocutory application be dismissed on the ground that the possession was never with the respondents No.1 to 4.
The appellant No.5 which was arrayed as the defendant no.7 had claimed that it is a housing society and had purchased the suit property on 30.8.1990 after paying full consideration. It has spent its money for the development of the plots and got a layout sanctioned for colonisation. It was also claimed that the members of the society were delivered possession of the land after development and they have paid the necessary consideration mentioned in the sale-deed executed in their favour by the appellant no.5. Under these circumstances the respondents No. 1 to 4 could not claim any permanent injunction as the appellant No.5 was the bonfide purchaser for value.
Respondent No.7 State Government also filed a reply asserting that the Court fee paid was inadequate. It was also stated that the appellant No. 1 was recorded as the owner of the suit property in the revenue papers, it was further stated that the licence of coloniser was granted by the State Government to the respondent no.6 as well as the appellant No.1 and consequently third parties have purchased the plots pursuant to the scheme for colonisation. In case permanent injunction is granted then the innocent purchasers are likely to be affected. The grant of injunction is therefore, opposed even by the State Government as the injunction was likely to affect the innocent persons and loss in revenue to the State Government.
The learned trial Judge was required to pass an order on the question of grant of temporary injunction during the pendency of the suit on the aforesaid rival contentions of the parties. It appears that the lower appellate Court was of the view that the family arrangement after death of Chanda Bai was executed by the three brothers Radhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam. It was agreed that a colony and educational institution shall be developed. It was also agreed that the sons of the three brothers will get equal share in the suit property. It was found by the learned trial Judge that since the names of three brothers were mutated immediately after the death of Smt. Chanda Bai, appellant No.1 Radhey Saran Nigam did not claim any exclusive right in the suit property by virtue of the Will dated 7.8.1982 alleged to have been executed by Chanda Bai prior to her death. It appears that the learnd trial Judge has doubted the authenticity of the-Will dated 7.8.1982 as this Will was not pressed by the respondent No.1 immediately after the death of Chanda Bai. It was held that prima-facie there were suspicious circumstances regarding the execution of the Will and therefore, the trial Court declined to hold that the appellant No.1 alone was the true owner of the suit property by virtue of the Will. The trial Court also found that after the death of Chanda Bai, the property inherited by her through her husband would go to the heirs of the husband and therefore, the contention of the respondents No.1 to 4 that after the death of Chanda Bai her daughters or the heirs of her daughters would not get the shares in the suit property was not held to be correct. It was further held by the trial Court that the suit was maintainable and was not barred by limitation. The trial Court held that the suit was maintainable despite the fact that the daughters of Smt. Chanda Bai were not made parties to the suit and further that the purchasers from the respondent no.7 were also held to be necessary parties. This was so held that was a suit for declaration alone. It was further held that the sale-deed was not according to the family settelment. However, in paragraph 24, the learned trial Judge found that the appellant No.1 could not rely upon the family settlement because he was not ready and willing to act upon it after issuance of notice dated 15.10.1990. He got his name mutated on the basis of Will and appellant No.2 Anand Kumar Nigam had sold Khasra No.212/1 in the capacity of holder of power of attorney of appellant no.1 Radhey Saran Nigam. It was also held that the sale-deed was invalid because it was not binding upon the co-owners though they were present at the time of the execution of the sale-deed by appellant no.2 Anand Kumar Nigam in favour of the appellant No.5. It was held that the appellant No.5 Society was not bonafide purchaser of the land and had purchased the suit land without permission from the other true owners. The learned trial Judge found prima-facie case in favour of the respondent No. 1 to 4 and granted temporary injunction holding that the balance of convenience was in their favour and they shall suffer irreparable injury if the appellants and other defendants-respondents No.5 and 6 are not restrained from selling khasras No. 212/1 and 101 during the pendency of the suit It was further directed that so far as khasra No. 101 is concerned, the appellant No.5 shall not make any construction over the suit land.
In this appeal it has been urged on behalf of the appellants that there is no case for grant of temporary injunction. Learned counsel for the appellants argued that there was a family settlement between the parties and apparently appellant no.1 Radhey Saran Nigam who had registered Will in his favour did not press it in the interest of amicable settlement between the three brothers and their sons for developing a colony in the name of Chanda Bai. It was argued that the dispute was a subsequent development and the respondents No.1 to 4 could not resile from settlement. In case they are permitted to resile from it, the appellant No. 1 is as well entitled to press the Will. It is urged vehemently that prima facie it appears to be a good and valid document. It was urged that a registered Will in itself lends authenticity to the document and this document was executed during the life-time of Chanda Bai. She expired on 20.5.1985. It was also argued that the facts of this case speak for themselves. The appellant No.1 had a weapon in his hand in the shape of registered will. He was made full owner of the total property in the suit. If he was greedy then he would have pressed the will and would not have entered into family arrangement granting' equal share to everyone concerned. The conduct of the appellant No.1 showed that the family arrangement was entered into with a bonafide motive on his part to develop a colony in the memory of his revered mother. It was further argued that the family settlement should ordinarily be deemed to be binding upon all the parties concerned. The disputed rights of the members of the family are settled and the result is reduced into a document so that there will be no future trouble. Such a document is made for drowning existing or likely dispute for ever and the Courts are always inclined to enforce a family arrangement despite the fact that it may not appear to have strictly followed the lines on which partition is legally done. It was also argued that such a family arrangement would not require registration and was admissible in evidence. As such it did not create, limit, assign or extinguish any right in the immoveable property and therefore, the Court is entitled to look into it. It was further argued that the parties had agreed to authorise appellant No.2 Anand Kumar Nigam to execute the sale-deed in favour of the appellant no.5 and he had done so. There was no objection on the part of the respondents No. 1 to 4 but now they have changed their minds and with a view to harass the appellants and the respondents No.5 and 6, they have filed this suit. In other words, it Was claimed that there was no prima facie case in favour of the respondents No.1 to 4 for grant of temporary injunction. A number of authorities were cited by the learned counsel for the appellants and it would be appropriate to refer to them during the course of discussion.
The counsel for the respondents No.1 to 4 on the other hand argued that the facts of this case do disclose that the appellants No.1 to 4 did not adhere to the family arrangement made by the parties and consequently equitable principle is in their favour. It was also argued that the family arrangement did require a registration and the Court is not entitled to look into it even for collateral purpose. The learned counsel for the respondents No.1 to 4 has also cited a number of authorities which shall be considered during the course of discussion.
Having heard the counsel for the parties, this Court must decide if there is a prima-facie case in favour of the respondents No.1 to 4 for grant of temporary injunction. The learned trial Judge in his judgment has not dealt with the issue involved in the case adequately and consequently it is necessary to consider the case of the respondents No.1 to 4 for grant of temporary injunction in somewhat detailed manner.
A first thing that comes to the mind what is the nature of the Will dated 9.7.1982 ? It may be noted that this will was executed by Chanda Bai prior to three years of her death. At that time undisputedly Chanda Bai was aged about 92 years. The Will bears the thumb mark of Chanda Bai. She has not signed the Will dated 9.7.1982 before the Sub-Registrar. Therefore, a question arises if she could sign why she did put her thumb mark on the Will ? In the Will itself there is a recital to the fact that the testator is unable to move and sign on account of fact that she had become too old prima-facie this be a reason for not signing the Will. It has not been disputed before me that Chanda Bai used to read and write when she was young but it argued that it is not possible at the old age of 92 years. She may not be in a position to sign the document. The Indian Succession Act also does not require that the testator should sign the Will. It would always be a question of fact if a particular testator was in a position to sign the Will or not. Howerver, in this particular case the Will was registered before the Sub-Registrar and her signature appears to have been officially authenticated on 7th August, 1982 and this Court on the basis of speculation cannot say that prima-facie the registered Will is inoperative on the suspicion that it might have been a forged Will and somebody else had appeared before the Sub-Registrar instead of Chanda Bai. In the opinion of this Court this inference cannot be drawn at this stage. On the other hand the formality of registration of Will lends it greater assurance in favour of the beneficiery of the Will. It is apparent that the appellant No. 1 was living with his mother and he was looking after her whereas the other brothers Guru Saran Nigam and Gyan Saran Nigam were not living with her. The appellant No.1 was looking after her and there is every possibility that the appellant No. 1 developed great affinity with his mother on account of close proximity. Looking to the common course of events it can be inferred that she might be more affectionately inclined towards the appellant No.1 than the two brothers who were living apart. The possibility of desire to give the suit land to the appellant no.1 solely cannot be ruled out. The preponderance of probability appears to be in his favour.
It appears to this Court that if this Will was executed in favour of the appellant No.1, there was every reason for him to press it and get the entire property mutated in his favour on the basis of the Will. However, he did not do so. What can be the reason ? The appellate say that it was the idealism on the part of the appellant no. 1 that moved him to make a family arrangement. It was argued that the appellant no.1 had also reached an age where he would not get much benefit if he alone enjoyed the suit property. He appears to be of considerable old age when his mother had died and at that age the persons are given to give up the claims to property. This argument appears to be plausible. If the appellant No.1 had a Will in his favour, that too a registered Will he could definitely press it into service. Even a forged registered Will could be used to foment trouble among other brothers and create a legal dispute. This he had not done. This fact lends more authenticity to the claim of the appellants that such a will was executed by Chanda Bai and the appellant No.1 did not press it into service for raising his sole claim to the suit property. It has been argued that the appellant No.1 did not suffer from the disease universal in India i.e. undue love for his progeny. Infact he loved his mother more and therefore, he agreed to enter into family arrangement without mentioning the Will. The question is if it is possible that he entered into family arrangement without mentioning the Will. The answer to this question is that it is more than probable that the appellant No.1 wanted to avoid family dispute and he therefore, entered into a family arrangement.
At first the question, therefore, has to be decided, if the family arrangement which is placed on record is admissible in evidence because the learned counsel for the respondents laid stress upon this aspect of the matter. There are number of cases in which the matter regarding family arrangement has been dealt with. Both the learned counsel placed reliance on the decisions of the Supreme Court on this point. The learned counsel for the appellants referred to Kale vs. Dy. Director of Consolidation MANU/SC/0529/1976 : AIR 1976 SC 807, Ram Charan Vs. Girja Nandlal MANU/SC/0358/1965 : AIR 1966 SC 323, Pullalah Vs. Narasimham MANU/SC/0328/1966 : AIR 1966 SC 1836 and a host others. It is not necessary to refer to all the decisions cited by the learned counsel for the appellants for the reasons that the principles regarding the family settlement are well settled. The leading case is Kale Vs. Dy. Director of Consolidation MANU/SC/0529/1976 : AIR 1976 SC 807. In that case the Supreme Court laid down the following six propositions -
1. The family settlement must be a bona fide one so as to resolve family disputes and rival claims by after and equitable division or allotment of properties between the various members of the family.
The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
The family arrangements may be even oral in which case no registration is necessary;
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 prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Sec. 17(1)(b) ?) of the Registration Act and is, therefore, not compulsorily registrable;
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 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 titles in favour of such a person and acknowledges him to be the sole 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.
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.
It is obvious from the aforesaid case which is based on a number of decisions of the High Courts, Privy Council and the Supreme Court that the Courts lean in favour of upholding a family settlement. There are very good reasons for doing so. Family settlements are harbingers of peace and amity in the family. It settles antecedent disputed claims to title without recourse to court of law and last but not the least a family setlement is in the nature of a decision based on consensus of the parties involved in the dispute at the time when it was entered into. However, a legal dispute could always be raised subsequently regarding the admissibility of the family arrangement. It has been argued on behalf of the respondents that this family arrangement is not admissible in evidence on account of the bar of Section 17 of the Indian Registration Act. Again the Supreme Court had already pointed out that bar of Section 17 of the Indian Registration Act would apply if a family arrangement itself creates limits or assigns rights in immoveable property. If the document is not filed then it does not require registration. It is, therefore, not necessary to look into any decision for deciding whether the document required registration or not but to read and interpret the document itself for finding whether it is covered by Section 17 of the Indian Registration Act or not.
Reading the document carefully it is clear that after death of Smt. Chanda Bai, the members of the family of the three brothers sat together and they decided that the suit property which belonged to the three brothers and is likely to fall into the share of their sons lateron in future shall be managed in the manner written in the document. It was decided that Chanda Nagar shall be created by all the 10 members mentioned in the document and in the memory of late Smt. Chanda Bai, an institution named Swargia Smt. Chandabai Nigam Smriti Sanstha Chanda Nagar was created. Ten persons named in the documents were made members of the executive committee and by the same document appellant No.2 Anand Kumar Nigam son of Radhey Saran Nigam was the Executive Chairman of the committee. It was also agreed between the -parties that apart from Chanda Nagar there be an educational institution run in the name of Chanda Bai. So from this document it is very clear that no transfer of any title was made. On the other hand rights of all the other persons mentioned therein were recognised, it was recognised that the three brothers Randhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam were recorded owners of the suit property and their seven sons had right and title in future. It is, therefore, difficult to accept argument raised on behalf of the respondents that this document in any way hit by Section 17 of the Indian Registration Act.
Next question that has to be decided is whether the sale-deed executed by Anand Kumar Nigam could be upheld ? The learned counsel for the appellant has argued that there was an agreement dated 22.6.1988 wherein it was agreed between the parties that the Khasra No. 212/1 area 3.056 Hectares shall be used for construction of an educational institution and a hall and also for creating residential complex. Khasra No.101 area 2.991 Hectares shall be sold and out of this sale proceeds 20% shall be used for constructing building for an educational institution. Rest of the income shall be divided in three portions of 1/10 each and shall be given to three brothers Radhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam. The rest of the amount shall be used for ploting upon khasra No.212/1. It was also stated that when the plot was sold, three aforesaid brothers shall get 1 /10th each from the sale proceeds of the plot of khasra No.212/1 and remaining portion of 1/7 shall be given to each of the seven remaining male persons mentioned in the agreement. Learned counsel for the appellants argued that this agreement was made by all the ten male persons and does not run contrary to the family arrangement entered into on 1.8.1988. Both these documents should be read together. It may be pointed out that this agreement does not purport to transfer immoveable property and no right can be said to be created by this agreement in respect of any immoveable property at the time of execution of the document. This document also cannot be said to be inadmissible in evidence.
This Court is of the view that this agreement dated 22.6.1988 and family arrangement dated 1.8.1988 do not run counter to each other in substance. They supplement each other. Nothing contrary can be found from the agreement or the family arrangement. It appears from the record that Anand Kumar Nigam who was appointed as the President of the Executive Committee known as late Smt. Chanda Bai Nigam Smriti Sanstha Chanda Nagar entered into an agreement for sale of a portion of the property with the appellant No.5 and subsequently executed a sale-deed in favour of the appellant No.5. A perusal of the agreement would show that Anand Kumar Nigam claimed that he was executing this agreement in the capacity of the President of the Executive Committee aforesaid. However while signing the document he has stated that he was the Parivarik Karta. The agreement was endorsed and ratified subsequently by all the ten male members of the family who had also signed a family settelement. Therefore, apparently Anand Kumar Nigam was armed with an authority of all the male members to go ahead and execute the sale deed. Accordingly, appellant No.2 Anand Kumar Nigam executed the sale deed in favour of the appellant No.5 on 30.8.1990. Subsequently on 15.10.1990 a notice was sent by the respondents no.1 to 4 challangeing the sale-deed and cancelling the family arrangement. It is apparent from the conduct of the respondents No.1 to 4 that till the stage of execution of sale-deed they had no objection to the agreement and the family arrangement. It appears to this Court that they wanted to abide by the earlier agreements even when the appellant No.2 executed the agreement with appellant No.5. Otherwise there was no reason to say that they had consented to the document and signed. It is, therefore, difficult for this Court to hold that the earlier agreement or the family settlement could not authorise Anand Kumar Nigam to execute the sale-deed for the purpose for which family settlement was made and the agreement to the same effect was executed. In fact there is the equitable consideration that a person or a party acting upon the action of others cannot be permitted to jeopardise his own right when the persons giving express or implied consent changed their mind. In other words a sort of principle of estoppel would operate against the respondents No.1 to 4 to subsequently cancel the agreement or the family settlement unilaterally without any cause. Further the respondents No.1 to 4 cannot act to the detriment of the appellant No.5 because it had purchased the suit property by the sale-deed signed by the appellant No.2 Anand Kumar Nigam at the instance of the other male members of the family. The respondents No.1 to 4 did not object and therefore, they cannot turn around and say that the family arrangement was incorrect. Moreover, even if we hold that the action of appellant No.2 Anand kumar Nigam in transferring a portion of the property in dispute was illegal and unauthorised, the remedy lay in getting the sale-deed set aside rather than questioning the family settlement solemnly agreed to with a avowed purpose of houring Smt. Chanda Bai, the mother of the three elder members of the family. It appears to this Court that the two elder members of the family namely Gyan Saran Nigam and Guru Saran Nigam were subsequently misguided by their male children because it appears to those children that Anand Kumar Nigam was authorised to sell the property and all the powers regarding lands in question appears to have been vested in him. Otherwise there was another way of settling the money dispute, if any. A suit could be filed for rendition of account regarding the money received by the appellants and for distribution of that money in accordance with agreement dt. 22.6.1988. This was not done by the respondents No. 1 to 4. Therefore, this Court comes to the conclusion diferring from the lower appellate court that there was no prima-facie case in favour of the respondents No. 1 to 4.
It may be readily seen that a family arrangement is made with the solemn desire to sink all the previous disputes including the antecedent claims to the property real or of doubtful nature. This is so done to obtain family peace and amity among the members of the family. Therefore, the Courts are not inclined to disregard family settlement unless there are circumstances which apparently establish fraud or fradulent conduct going to the root of the matter vitiating the family settlement. The conduct of the appellant No.2 Anand Kumar Nigam for executing the sale-deed cannot be said to aforesaid category. Moreover, the execution of sale-deed in favour of the appellant No.5 and the subsequent sale-deed of the plots are likely to affect the rights of the third parties who could not be blamed in the face of apparently valid right to sell the property in favour of the appellant No.5 by Anand Kumar Nigam.
The Courts should remember that every filing of the plaint alongwith application under Order 39 Rules 1 and 2 C.P.C. does not entitle the plaintiff to obtain automatically a temporary injunction. There are equitable considerations which have to be carefully weighed before issuing temporary injunction. It has also been found that the conduct of the respondents No.1 to 4 is not such as would entitle them to claim in equity relief of temporary injunction. The other equitable consideration which comes in the way of the respondents No.1 to 4 is likely to affect a third party. Further, this Court is of the opinion that there is considerable delay in filing the civil suit after the execution of the sale-deed in favour of the appellant No.5 who in turn had executed sale-deed of the plots in favour of the certain other persons. One may recall one of the famous maxim of equity; "Delay defeats equity" "or he who seeks equity must come in time". Here the question of delay is being examined from the point of view of a third party. The third parties who have purchased the plot are affected because of inaction on the part of the appellants and they cannot be blamed for the actions of the appellant No.2 and the appellant No.5. Thus, the case of the respondents No.1 to 4 that they have prima-facie case in their favour is further destroyed on the fact that they did not rush to challenge the sale-deed dated 30.8.1990.
It cannot be said that the appellants shall suffer in irreparable injury if the temporary injunction claimed by them is not granted. No doubt the appellants may be affected monetarily if the new colony in the name of Smt. Chanda Bai is made and other buildings on one of the plots in question is constructed. But the respondents No.1 to 4 can always claim comepensation in temrs of money, if they are put to loss by any of the actions of appellant No.2 Anand Kumar Nigam. Thirdly there is no balance of convenience in their favour as there is considerable delay in filing the suit and they could not unilaterally cancel the family arrangement already entered into.
The alternative question regarding the validity of the Will was also pressed into service by the counsel for the appellants. It is apparent that the Will aforesaid executed by Smt. Chanda Bai is if good and valid then the respondents No.1 to 4 could not claim any right in the suit property as it would belong to appellant No.1 Radhey Saran Nigam alone. It has already been noted that the Will aforesaid is a registered Will and there is an explanation why Smt. Chanda Bai did not sign in the Will itself. It has also been pointed out that the preponderance of probability is in favour of the authority as it appears to this Court at this stage. However, whether the thumb mark on the aforesaid Will was not that of Smt. Chanda Bai can only be decided on the basis of evidence laid by the parties. Prima-faice it does not appear to this Court that mearly because the Will was not produced for a number of years, it could be ignored on that ground alone. There is plausible reason for not pressing the Will on the part of the appellant No.1. The defence taken by the appellants No.1 and 2 in their written statement regarding Will would strengthen their case if proved in accordance with law. That is additional reason for not granting any help by way of temporary injunction to the respondents No.1 to 4. However, no final opinion is expressed on the point.
The result of the aforesaid discussion is that this appeal as well as connected Misc. Appeal No. 585 of 1997 is hereby allowed and the impungned order dated 27.2.1997 passed by the Additional District Judge, Narsinghpur in Civil Suit No. 3A of 1995 is hereby set aside. The application for temporary injunction filed by the respondents No. 1 to 4 is hereby dismissed. The trial Court is directed to proceed further in accordance with law.
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