1990 (2) TMI 301 - SC - Indian Laws

Summary

Issues Involved:
1. Ownership and possession of the suit property.
2. Interim injunction pending the suit.
3. Application of section 44 of the Transfer of Property Act.
4. Grant of mandatory injunction.

Summary:

Ownership and Possession of the Suit Property:
The appellant, the plaintiff in Civil Suit No. 2987 of 1987, owns an undivided half share in the suit property, Dorab Villa, 29, Perry Cross Road, Bandra, Bombay. The property was originally purchased in 1934 by Cawasji Dorabji Warden, Banubai Warden, and the appellant as joint owners. Upon the death of Banubai and subsequent agreements, the appellant and his brother Sohrab held equal undivided shares as tenants in common. Sohrab died intestate in 1976, and his widow and minor sons (respondents 1 to 3) sold their undivided half share to the fourth respondent and his wife in 1987.

Interim Injunction Pending the Suit:
The appellant sought an interim injunction to restrain respondents 1 to 3 from parting with possession and respondents 4 and 5 from entering or remaining in possession of the suit property. The trial court granted an interim mandatory injunction restraining the fourth respondent from remaining in possession, but allowed occasional entry for inspection. The High Court, however, set aside this order, indicating that the facts required a full trial and that the appellant had not made out a prima facie case for irreparable damage or balance of convenience in his favor.

Application of Section 44 of the Transfer of Property Act:
The suit property was claimed to be a dwelling house belonging to an undivided family, thus falling within the scope of the second paragraph of section 44 of the Transfer of Property Act, which restricts a transferee's right to joint possession if the transferee is not a family member. The trial court found that the property was indeed a dwelling house belonging to an undivided family, and thus the fourth respondent, a stranger to the family, was not entitled to joint possession. The High Court, however, questioned whether the property was still an undivided family dwelling house, suggesting that there might have been a severance in status.

Grant of Mandatory Injunction:
The Supreme Court held that interlocutory mandatory injunctions can be granted in special circumstances to restore the status quo or to prevent irreparable harm. The guidelines for such injunctions include a strong case for trial, prevention of irreparable injury, and balance of convenience in favor of the plaintiff. The court found that the appellant had shown a prima facie case that the suit property was a dwelling house belonging to an undivided family and that irreparable injury would be caused to the appellant if the injunction was not granted. The court also noted that the fourth respondent was aware of the restrictive title and had acted in a manner to overreach the court. Consequently, the Supreme Court allowed the appeal, restored the trial court's order, and granted costs in favor of the appellant.

Conclusion:
The appeal was allowed, the High Court's judgment was set aside, and the trial court's order granting an interim mandatory injunction was restored. The Supreme Court emphasized that its observations on facts were not binding at the final disposal of the suit and allowed for the possibility of the vendors returning to their portion of the house under appropriate court orders.