2025:JHHC:38390 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI M. A. No.239 of 2025 Om Prakash Lal, S/o Someshwar Prasad, R/o Mohalla Jail Hata, PO and PS- Daltonganj, District- Palamau at present R/o Village- Chiyanki, PO- Chiyanki, PS- Daltonganj, District- Palamau (Jharkhand) through power of attorney holder, namely, Nikhil Kumar Lal, S/o Om Prakash Lal, R/o Sosha Bagan, Chiyanki, Daltonganj, PO and PS- Chiyanki, District- Palamau (Jharkhand). .... .. ... Appellant(s) Versus 1. Someshwar Prasad, S/o Late Sheo Deni Sao 2. Deepak Kumar Lal 3. Shashi Kumar Lal Both sons of Someshwar Prasad and all R/o Mohalla Jail Hata, PO and PS- Daltonganj, District- Palamau. 4. Gita Devi, W/o Nand Prakash Gupta and D/o Someshwar Prasad, R/o 303 Mangalam Apartment, Opp. Hotel Apsara, Circular Road, Lalpur, PO and PS Lalpur, District- Ranchi. 5. Rita Devi, W/o Subodh Kumar Suman and D/o Someshwar Prasad, R/o Shyam Kunj, Behind Hotel Apsara, PO and PS- Lalpur, District- Ranchi. 6. Anita Devi, W/o Tarun Kumar Panjiyar and D/o Someshwar Prasad, Commanding Officer, Military Dental Centre, Nakum, PO and PS- Namkum, District- Ranchi. . .. ... ...Respondent(s) ........... CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Appellant (s) : Mr. Amar Kumar Sinha, Advocate For the Respondents : Mr. Rahul Kumar Gupta, Advocate …... 09/ 18.12.2025. Heard, learned counsel for the parties. 1. The instant appeal is filed under Order XLIII Rule 1 (r) of CPC by the plaintiff against the order dated 28.06.2024 by which the petition filed under Order XXXIX Rule 1 & 2 read with Section 151 of CPC in Original Suit No. 51 of 2018 has been rejected. 2. The petitioner filed the partition suit with respect to the properties fully detailed in Schedule A and B of the plaint. 3. As per the case of the plaintiff, the suit property was ancestral and no partition had taken place by metes and bounds between the family and there was unity of title and possession. 4. The plaintiff is the son of defendant no. 1-Someshwar Prasad, whereas defendant nos. 2, 3, 4, 5, and 6 are the brothers and sisters of the plaintiff. 5. Separate written statements have been filed on behalf of the defendants wherein it has been admitted that there had not been any partition between the parties. However, it is contended in paras 10 and 11 of the written statement filed by defendant no. 1 and 2 that the land described in 2025:JHHC:38390 2 Scheduled – A(ii) of Village Chiyanki and Scheduled A (i) of Village Redma were the self-acquired properties of defendant no. 2. 6. Plaintiff filed a petition for temporary injunction under Order XXXIX Rule 1 & 2 of CPC mainly on the grounds that the defendants purposely with mala-fide intention and to disturb the residential accommodation of the plaintiff at Sohsa Bagan at village Chiyanki was inclined to sell out the said property which forms part of Scheduled A-II land. 7. Learned Trial Court rejected the petition on the ground that the defendant no. 2 had filed the copy of the sale deed in support of his plea that the concerned property was self-acquired property of the defendant No.2. Some of the properties were acquired by him from one Ramji Prasad and those sale deeds had also been a part of the income tax proceeding. The mutation of these lands was done in his name and he was paying rent to the State Government without any objection. Although the plaintiff claimed that there had been a memorandum of partition by way of Batwara Yadastnama dated 07.07.2003, but the same has not been produced. Defendant No.2 is running a separate business in the name and style of one Deepak Kumar Lal Firm for the last 45 years and was suffering from cancer and was a heart patient and was needed a considerable amount to meet his medical expenses. 8. It is argued by the learned counsel on behalf of the petitioner/plaintiff that he is in possession of Scheduled- A land as averred in paras 6 and 8 of the petition filed under Order XXXIX Rule 1 and 2 of CPC on the basis of memorandum of partition dated 07.07.2003. This averment of fact has not been disputed in the written statement, rather it is admitted in para 25. There is no specific denial with respect to para 6 regarding the memorandum of partition. In para 23 and 25 of the written statement, there is an admission that the signature had been taken on the memorandum of partition. 9. Learned counsel for the respondents has submitted that the list of the sale deeds, by which the land had been acquired, has been detailed in para 3 of the counter affidavit, filed before this Court on 08.12.2025. Further, para- 4 is the income tax return filed by defendant no. 2 before the Income Tax Authority. In para-5, altogether five sale deeds have been referred to in which sale deed Nos. 7740, 7439 both dated 29.12.2023 have been executed by the appellant claiming it to be his self-acquired property. 2025:JHHC:38390 3 Further, sale deed Nos. 4862, 4863 and 4864 all dated 22.07.2023 formed part of Schedule B property which has been transferred by the plaintiff with defendant nos. 1 and 3. In nutshell, it is submitted that while the plaintiff seeks an order of temporary injunction to restrain to defendant no. 2 to transfer the property which is the self-acquired property and at the same time, is transferring the joint family schedule property. 10. It is argued by learned counsel for the defendant No.2/ Respondent No.2 that the suit has been filed by the plaintiff/ appellant for partition and not for declaration that the property already divided as per the memorandum of partition dated 07.07.2003 be effected. 11. As a matter of fact, this memorandum was not acted upon and, therefore, the need arose for filing of the Partition Suit. The fact that the memorandum was not acted upon will be evident from that the landed property of Village- Sohsa appearing in the memorandum, was to be divided into three parts and the shares were detailed in the memorandum at internal Page Nos.10 & 11. Although the plaintiff (s) has moved for temporary injunction petition to restrain defendant No.2/ Respondent No.2 from selling his acquired property, however, he has himself disposed part of the property as detailed in Lot No.2 in the memorandum of partition and it will be evident from the sale-deeds filed on behalf of defendant No.2/ Respondent No.2 before this Court by way of counter-affidavit. 12. In-reply, it is argued by learned counsel for the appellant that on bare perusal of three sale-deeds filed on behalf of defendant No.2/ Respondent No.2, it is apparent that the sale proceeds were not exclusively taken by the plaintiff(s) rather part of it has been duly distributed among the three parties. Rs.3 Lakhs had been deposited in the account of Deepak Kr. Lal/ Resp. No.2 as per the recital of Sale Deed No.4863 dated 22.07.2023. Similar recitals are there in all the three sale-deeds. 13. In reply, it is argued by the learned counsel for the defendant No.2/ respondent No.2 that total sale proceeds were to the tune of Rs.2 Crore 27 Lakhs, out of Rs.17 Lakhs have been received by him from share of his father. 14. Reliance is placed on 2005 (1) PLJR SC 94 at para-10 [Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldeo Das]. 15. It is further argued that as per the terms of Memorandum of Partition, 2003, amended property of Village-Sohsa has to be divided among the three 2025:JHHC:38390 4 parties, however, appellant has exclusively sold the land of Village-Sohsa which will be evident from Annexure-C [Sale-deed No.7440 dated 29.12.2023] and Annexure-C/1 [Sale-deed No.7439 dated 29.12.2023]. ANALYSIS :- 16. So far family arrangement by way of memorandum of partition is concerned, it is ordinarily used as a plea of defence or it can be acted upon and share divided accordingly, if the said document is proved and parties are shown to have acted upon. It has been held in Kale & Ors. v. Deputy Director of Consolidation & Ors., (1976) 3 SCC 119 : 9. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus: “The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.” The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: “A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. 2025:JHHC:38390 5 The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.” 17. In the present case, family arrangement does not appear to have been acted upon, therefore, the plaintiff was driven to file the partition suit. Out of the five sale deeds filed on behalf of the respondent/ defendant, from the recital, it is evident that in three of them, part of the sale proceeds were paid to the defendant no.2, but not with respect to two of them. Thus, partition is to proceed on equitable distribution of share and not strictly as per the memorandum of partition. This is not to suggest that the said memorandum cannot at all be considered by the trial court, but it will not be binding on the parties for the reason that the sales have already been made in derogation of it. 18. Learned trial court has rightly noted that landed property in Village- Chiyanki were acquired in the name of the defendant no.2 by registered deed of sale from one Ramji Prasad and the same was prima facie evidence of it being self-acquired. Whether the said purchase was made from the joint family fund or not, is a matter of judicial determination. There is another factor that tilts the balance against grant of temporary injunction that defendant No.2 is suffering from cancer and restraining him from transferring his self acquired property may result in adversely affecting his medical treatment, particularly when there is evidence to show that plaintiff has already transferred land by sale. 19. Under the circumstance, the impugned order is not interfered with. Miscellaneous Appeal stands dismissed. Pending I.A., if any, also stands disposed of. (Gautam Kumar Choudhary, J.) Sandeep/- Uploaded 22.12.2025.