9911796707
TMI Blog1990 (2) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is the owner of an undivided half share in the suit property. The suit property was purchased originally under a deed dated 12th January, 1934 by Cawasji Dorabji Warden, Banubai Warden and the appellant as joint owners. Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant. It appears that the super-structure on the land was constructed subsequent to the purchase. At the time when the property was purchased the appellant was a minor. By a registered deed of declaration that the appellant made a declaration that the appellant has an undivided share in the said piece of land and the building erected thereon as joint tenants with the declarants, and that in the event of the appellant's surviving the declarants, he shall by virtue of the said joint tenancy and his survival becomes solely and beneficially entitled to the said piece of land and the building thereon. However, this deed reserved a right to either or both the declarants and the appellant from severing the joint tenancy at any time. On the death of Banubai on 9th June, 1946 the appellant and his father as surviving joint tenants came to own the entire property. Under an agreement d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y division of the said property at any time, that the plaintiff and his deceased brother Sohrab during his fife time were for convenience occupying different portions, the plaintiff occupying the first floor while the deceased Sohrab was occupying the ground floor. After the death of Sohrab respondents 1 to 3 continue to be in occupation of that portion which was in the occupation of Sohrab. In the circumstances the fourth defendant who is a stranger to the family has no right to have joint possession or common enjoyment of the property along with the plaintiff on the basis of the purchase of the undivided share. On this ground the appellant-plaintiff claimed that he is entitled to perpetual injunction as prayed for in the suit. He further claimed that pending the suit he is entitled to an interim relief as prayed for and that if the said relief is not granted irreparable loss and great prejudice will be caused to him which cannot be compensated in terms of money, and that the equity and balance of convenience is in his favour and no prejudice or loss would be caused to the respondents. In the counter-affidavit filed by the fourth respondent and the first respondent on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 4 and his wife as strangers were not entitled to joint possession of the said family dwelling house. Since the defendant had claimed that he already entered into possession interim mandatory injunction was granted to the effect that the fourth respondent, his servants and his agents are restrained from remaining in possession or enjoyment of the suit property or any part or portion thereof. However, the learned Judge ordered that this injunction order would not prevent the fourth respondent to occasionally enter the suit property to enquire that on one else other than the plaintiff and his family members is entering into possession of the portion of the ground floor and one garage which he has purchased. On appeal the High Court was of the view that prims facie the facts indicate that throughout the parties have lived separately, that there appear to have been severance in status and it is not possible to give a finding that there has been no partition between the parties, that the matter requires evidence on either side as to what extent the ground floor could have ever been considered as a family dwelling house that granting of interim mandatory injunction will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction. In Evans Marshall Co. Ltd. v. Bertola SA, [1973] 1 All ER 992 the Court of Appeal held that: Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant; . The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd.. Ors. v. Cannon Film Sales Ltd., [1986] 3 AIIER 772 Hoffmann, J. observed in that case: But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 24 Halsbury's Laws of England (4th Edn.) para 948 it is stated: A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steel a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory applications. The law in United States is the same and it may be found in 42 American Jurisprudence 22 Edn. page 745 etc. As far the cases decided in India we may note the following cases. In one of the earliest cases in Rasul Karim Anr. v. Pirubhai Amirbhai, ILR 1914 38 Bom. 381, Beaman, J. was of the view that the court's in India have no power to issue a temporary injunction in a mandatory form but Shah, J. wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidlines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... schief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff. The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a 'dwelling house belonging to an undivided family' within the meaning of section 44 of the Act. As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and Ors. v. Debi Prasad, [1908] ILR 30 All. 324. That was concerned with the meaning of the phrase dwelling house belonging to an undivided family in section 4 of the Partnership Act, 1893. That section provides that where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family, being a shareholder shall undertake to buy the share of such transferee make a valuation of such share i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'. Again in construing the word family and 'undivided family' a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal Anr. v. Saroda Prosad Mitra, [1910] 7 IC 436 observed: The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor. The decision in Nil Kamal Bhattacharjya Anr. v. Kamakshya Charan Bhattacharjya Anr., AIR 1928 Cal. 539 related to a case of a group of persons who were not the male descendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out. On the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139 with approval: If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint pOssession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act. The learned Judge further held: The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some notions of co-parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act. We had also noticed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for consideration whether this transaction is covered by section 44 of the Act and whether after the transfer, the appellant's brother and the appellant can be said to be holding the property as undivided family. The transfer by the father in favour of Sohrab was a trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only right of the stranger purchaser is to sue for partition. All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family. Mr. Sorabjee the learned counsel for the appellant brought to our notice a number of circumstances which go to show that the fourth respondent was fully aware of the limited and restrictive title of respondents 1, 2 and 3 and the bar for joint possession provided in the second paragraph of section 44 of the Transfer of Property Act and having purchased with such full knowledge tried to overreach the Court by keeping the whole transaction secret and taking possession of the property purchased before the appellant could get legal redress from the Court. Apart from the fact that the various recitals in the agreement to sell dated 21.12.1986 and the sale deed 16.4.1987 executed by respondents 1 to 3 in favour of the fourth respondent clearly show that the fourth respondent was fully aware of the provisions of section 44 of the Act and that he had purchased the property with the full knowledge of the rights of the other me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the suit property and the affidavit filed by the fourth respondent in the suit as if he is residing somewhere else and not in the suit property. The learned counsel also referred to some telephone directories, telephone numbers and addresses given therein which also show that the fourth respondent is residing and having an office in some other places also other then the suit premises. These evidences go to show that the purchaser has occupied the disputed property merely for the purpose of establishing his claim and he did not vacate his earlier permanent residence. On the other hand the appellant had to leave from the portion of the house where he was living as it was not possible for him to reside there with stranger. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession. In such circumstances it is but just and necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellant's rights to compel the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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