Dorab Cawasji Warden v. Coomi Sorab Warden

Two brothers each held an equal undivided half of a Bandra house. After one brother died, his widow and sons sold his half to an outsider, who moved in within days. The Supreme Court restored an interim mandatory injunction (a court order to undo an act) against the purchaser and set out the guidelines for such orders.

Quick Revision

Parties

Dorab Cawasji Warden — appellant and plaintiff in Civil Suit No. 2987 of 1987. He owns an undivided half share in the suit property.

Coomi Sorab Warden — respondent 1. She is the widow of the appellant's brother Sohrab Warden. She sold her undivided half share together with respondents 2 and 3.

Respondents 2 and 3 — the minor sons of Sohrab. They were co-sellers of the half share.

Respondent 4 — the purchaser, who bought the half share with his wife and took possession of the ground floor portion and one garage. The judgment does not give his name.

Respondent 5 — impleaded (joined as a party) on the assumption that he and respondent 4 bought the property together. The judgment records that it is now accepted he is not one of the purchasers.

Procedural History

1. The appellant filed Civil Suit No. 2987 of 1987 in the Bombay City Civil Court on 18 April 1987. He prayed for a decree (the court's final order) against respondents 1, 2 and 3 and against respondents 4 and 5.
2. With the suit he took out a notice of motion for an interim injunction pending the suit. The motion concerned Dorab Villa, 29 Perry Cross Road, Bandra, Bombay. It sought to restrain respondents 1 to 3 from parting with possession. It sought to restrain respondents 4 and 5 from entering or remaining in possession.
3. On the day of filing, the appellant obtained an interim ex parte (without hearing the other side) order. When it was to be executed, it was reported that the fourth respondent had already taken possession. The words remaining in possession were bracketed and not given effect, pending a further decision on the application.
4. By consent of the parties, a Commissioner was appointed on 22 April 1987.
5. The trial court found that the suit property was a dwelling house belonging to an undivided family.
   • It found that there was no partition by metes and bounds at any time.
   • It found that the appellant and his father were undivided qua (in respect of) the entire suit property.
   • It found that, so far as the suit property was concerned, the appellant and his family and the family of respondents 1, 2 and 3 were joint and undivided.
   • It found that the families of the appellant and of Sohrab might be divided for food and worship, but were not divided qua the suit property.
   • It held that the case fell within the second paragraph of section 44 of the Transfer of Property Act. Respondent 4 and his wife, as strangers, were therefore not entitled to joint possession.
6. As the fourth respondent claimed he had already entered possession, the trial court granted an interim mandatory injunction. It restrained him, his servants and agents from remaining in possession or enjoyment of the suit property or any part of it.
7. The trial court added that the order would not stop the fourth respondent from entering the property occasionally. He could check that no one other than the plaintiff and his family entered the ground floor portion and one garage he had purchased.
8. On appeal (Appeal from Order No. 707 of 1987), a Single Judge of the Bombay High Court allowed the appeal and set aside the injunction. The order is dated 3 September 1988.
9. The High Court took the following views:
   • Prima facie the parties had lived separately throughout.
   • There seemed to have been a severance (separation) in status, and it could not be found that there was no partition.
   • Evidence was needed on both sides on how far the ground floor could ever be a family dwelling house.
   • An interim mandatory injunction would virtually decide the suit without a trial.
   • The plaintiff had not made out a prima facie case of irreparable damage, or that the balance of convenience was in his favour.
10. The High Court directed that, during the suit, the fourth respondent and his wife must not make permanent alterations in the premises. They must not induct any third party or create any third party interest in the suit property.
11. The appellant appealed to the Supreme Court by Civil Appeal No. 2422 of 1989. Judgment was delivered on 13 February 1990.

Facts

1. On 12 January 1934, Cawasji Dorabji Warden, Banubai Warden and the appellant bought the suit property under a deed, as joint owners. Cawasji and Banubai were the appellant's father and mother. The appellant was then a minor.
2. The building on the land was constructed after the purchase.
3. By a registered deed of declaration, the appellant declared that he held an undivided share in the land and the building as a joint tenant with the declarants. If he survived them, he would become the sole and beneficial owner by survival. The deed reserved to each party a right to sever the joint tenancy (joint ownership with a right of survivorship) at any time.
4. Banubai died on 9 June 1946. The appellant and his father, as surviving joint tenants, came to own the entire property.
5. On 12 March 1951, the appellant wrote to his father. He said he wished to keep his share separately, so that he could dispose of it as he chose and his heirs could succeed to it.
6. On 23 August 1951, the appellant and his father executed an agreement (a promise or set of promises enforceable by law). They declared that they had severed their status as joint tenants. They agreed to hold the property as tenants in common, each with an equal undivided share. Each could dispose of his share, and each share became a separate stock of descent.
7. On 16 April 1952, the appellant's father transferred his undivided half share to his other son, Sohrab Warden. In consideration (the price given for the transfer), Sohrab released to his father his undivided share in other property in the second schedule to that document.
8. The appellant and Sohrab therefore each held an equal undivided half share as tenants in common.
9. Sohrab attained the age of 18 only on 25 December 1951. He lived with his father and brother until 1968, when he married. After his marriage, the appellant and Sohrab occupied different portions of the property and had different messes.
10. Sohrab died intestate on 12 October 1976. He left his widow (respondent 1) and two minor sons (respondents 2 and 3).
11. An agreement to sell (an undertaking to sell at a later date) dated 21 December 1986 was made between respondents 1 to 3 and respondent 4. Clause 6 allowed the vendors to keep the sale in abeyance or cancel it if a co-owner's suit produced an injunction (not an ad interim injunction) against selling.
12. On 16 April 1987, respondents 1 to 3 sold their undivided half share to the fourth respondent and his wife under a sale deed. The deed recited that possession of the portion sold had been handed over to the purchaser.
13. On 18 April 1987, within two days of the sale, the appellant filed the suit. He pleaded that the suit property was a dwelling house belonging to an undivided family and had never been divided.
14. He pleaded that he and Sohrab had occupied different portions for convenience. The appellant lived on the first floor and Sohrab on the ground floor. Respondents 1 to 3 stayed on in Sohrab's portion after his death.
15. He pleaded that the fourth respondent, a stranger to the family, had no right to joint possession or common enjoyment on the basis of buying an undivided share.
16. He claimed a perpetual injunction (a final order made at the end of the suit) in the suit. He claimed an interim injunction pending the suit. He said irreparable loss that could not be compensated in money would follow if it was refused. He said the equity and balance of convenience favoured him.
17. At the Commissioner's inspection soon after the suit was filed, some items of respondents 1 to 3 were still there, but the fourth respondent had taken possession. The Commissioner's report showed that not all the vendors' articles had been removed. It showed that the purchasers' moveables were still being brought into the house.
18. The appellant had to leave the portion of the house where he lived, because he could not live there with a stranger.

Issues Raised

The judgment does not number its issues. These are the questions it takes up, in its own order.

1. Is the appellant entitled to an interim mandatory injunction directing the fourth respondent-purchaser, already in possession, to vacate the premises?
2. What guidelines govern the grant of an interlocutory mandatory injunction?
3. In a suit under section 44 of the Transfer of Property Act, what must the Court keep in mind about the right to joint possession of the transferee (the person who receives the share)?
4. Can one reasonably take the view, before trial, that the suit property is a dwelling house belonging to an undivided family within section 44?
5. Does it matter that the family was divided in status, and that the two sides occupied separate portions?
6. Would refusing the injunction cause the appellant irreparable injury that money cannot compensate, and is the balance of convenience in his favour?

Arguments Contended

For the appellant (Soli J. Sorabjee, appearing with other counsel):

• The suit property is a dwelling house belonging to an undivided family. It was never divided at any time.
• He and Sohrab occupied different floors for convenience only.
• The fourth respondent is a stranger to the family. He has no right to joint possession or common enjoyment of the property on the basis of buying an undivided share.
• The appellant is entitled to a perpetual injunction in the suit and an interim injunction pending it.
• Without interim relief, irreparable loss and great prejudice follow that cannot be compensated in money. The equity and balance of convenience are in his favour, and no prejudice or loss would be caused to the respondents.
• Before the Supreme Court, counsel contended that the fourth respondent knew the limited and restricted title of respondents 1 to 3 and the bar on joint possession in the second paragraph of section 44.
• Counsel contended that, buying with that knowledge, the fourth respondent tried to overreach the Court. He kept the transaction secret and took possession before the appellant could get legal redress.
• Counsel relied on the recitals in the agreement to sell of 21 December 1986 and the sale deed of 16 April 1987. They show the fourth respondent knew section 44 and took a complete risk.
• Counsel relied on clause 6 of the agreement to sell. It shows that the parties expected litigation.
• Counsel pointed to the speed of the sale, the suit being filed within two days, and the Commissioner's report on the removal of articles.
• Counsel relied on the affidavit of the first respondent, who claimed she still lived in the suit property. He relied on the fourth respondent's affidavit, which spoke as if he lived elsewhere. He also relied on telephone directories showing the fourth respondent's residence and office at other places.

For the respondents:

• The appellant and respondents 1, 2 and 3 owned the property in equal moiety (halves). They held it in their individual capacity and not as members of a joint family.
• The suit property is not joint family property and not property belonging to an undivided family.
• Since 1968, when Sohrab married, the appellant's family had exclusively occupied the upper floor and a garage.
• Sohrab's family had exclusively occupied the entire ground floor and another garage. The compound, staircase and terrace were in joint possession.
• The two families had separate messes, separate electricity and water meters, and paid proportionate taxes.
• After Sohrab's death, respondents 1 to 3 continued to occupy the ground floor and the garage exclusively until the half share was sold to the fourth respondent and his wife.
• Though held as tenants in common, there had already been a partition as to the user of the property.
• The fourth respondent took possession of the portion in respondents' occupation under the sale deed.
• The respondents, not the appellant, would suffer irreparable loss and great prejudice if the injunction were granted. The balance of convenience was not in the appellant's favour.
• The respondents' arguments before the Supreme Court are not separately set out in the judgment, apart from what the Court records as their case in the courts below.

Court's Reasoning

Opinion of V. Ramaswami, J. (for the Court)

1. Noted: The sale deed recites that possession of the portion sold had been handed over. It says the purchaser can continue in possession without hindrance.
2. Noted: At the Commissioner's inspection, the fourth respondent had taken possession. The trial court found this, and it granted the mandatory injunction on that basis. Counsel in the Supreme Court also proceeded on that basis.
3. Held: The purchasers have occupied the disputed portion.
4. Noted: The question is whether the appellant is entitled to an injunction in mandatory form directing the fourth respondent-purchaser to vacate the premises.
5. Held: Courts can grant an interlocutory (interim) mandatory injunction in certain special circumstances. English cases give useful guidelines.
6. Noted: In Shepherd Homes Ltd. v. Sandham, Megarry J. said that on a motion, a court is far more reluctant to grant a mandatory injunction than at trial. In a normal case the court must feel a high degree of assurance that the injunction will appear rightly granted at trial. That is a higher standard than for a prohibitory injunction (an order to stop an act).
7. Noted: In Evans Marshall & Co. Ltd. v. Bertola SA, the Court of Appeal held that a plaintiff's failure to show a reasonable prospect of a permanent injunction weighs heavily against an interlocutory injunction. It does not, as a matter of law, bar one.
8. Noted: In Films Rover International Ltd. v. Cannon Film Sales Ltd., Hoffmann J. distinguished fundamental principles from guidelines. He said the grant of interlocutory injunctions, prohibitory or mandatory, carries a risk of a wrong decision either way.
9. Noted: Hoffmann J. said the fundamental principle is to take the course that carries the lower risk of injustice if it turns out to be wrong. The guidelines are derived from this principle.
10. Noted: Hoffmann J. said the question of substance is whether the injunction carries the higher risk of injustice usually linked with mandatory orders. That question decides whether a case is normal or exceptional.
11. Noted: Hoffmann J. said that if withholding a mandatory interlocutory injunction would carry a greater risk of injustice than granting it, there is no rational basis for withholding it. This applies even where the court lacks a high degree of assurance about the plaintiff's chances.
12. Noted: Hoffmann J. concluded that Locabail International Finance Ltd. v. Agroexpo did not mean to fetter the court's discretion. The Locabail guideline for mandatory injunctions recognises that there may be cases in which less is sufficient. The Cyanamid guidelines for prohibitory injunctions likewise recognise exceptions in which more is required.
13. Noted: Halsbury's Laws of England states that a mandatory injunction can be granted on an interlocutory application. In the absence of special circumstances it will not normally be granted.
14. Noted: Halsbury adds that it will be granted if the case is clear and ought to be decided at once. It will also be granted if the act done is simple and summary and can easily be remedied. It will be granted if the defendant tries to gain an unfair advantage over the plaintiff, for example by hurrying on the work once he gets notice of an application.
15. Noted: The law in the United States is the same, as 42 American Jurisprudence (2d edition), page 745, shows.
16. Noted: Among the Indian cases, Rasul Karim v. Pirubhai Amirbhai (Bombay) saw Beaman J. take the view that Indian courts cannot issue a temporary injunction (an interim order lasting until the suit is decided) in mandatory form. Shah J., on the same Bench, did not agree.
17. Noted: The Bombay Division Bench in Champsey Bhimji & Co. v. Jamna Flour Mills Co. took a different view from Beaman J. That view now prevails in the Bombay High Court.
18. Noted: In M. Kandaswami Chetty v. P. Subramania Chetty, the Madras High Court held that Indian courts have power under Order 39 Rule 2 of the Code of Civil Procedure to issue a temporary injunction in mandatory form. It accepted the Champsey Bhimji view.
19. Noted: In Israil v. Shamser Rahman, the Calcutta High Court held that it could issue an interim injunction in mandatory form. For an interim injunction, the court asks three things. First, is there a fair and substantial question about the parties' rights? Second, do the nature and difficulty of those questions make an injunction proper until they are decided? Third, where does the balance of convenience lie, and should the status quo (the existing position) be kept?
20. Noted: In Nandan Pictures Ltd. v. Art Pictures Ltd., a Calcutta Division Bench accepted that Indian courts may in some circumstances issue an ad interim mandatory injunction. It said such an injunction on an interlocutory application is granted only to restore the status quo. It is not granted to create a new state of things different from the state at the date the suit was instituted.
21. Held: Interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non-contested status that preceded the pending controversy, until final hearing. They may also compel the undoing of acts illegally done, or the restoration of what was wrongfully taken.
22. Why: Granting such an injunction to a party who fails at trial can cause great injustice or irreparable harm to the other side. Not granting it to a party who succeeds can equally do so. Courts have therefore evolved guidelines.
23. Held: The guidelines, generally stated, are three.
    • The plaintiff has a strong case for trial. That "shall be of a higher standard than a prima facie case" required for a prohibitory injunction.
    • It is necessary to prevent irreparable or serious injury that normally cannot be compensated in terms of money.
    • The balance of convenience is in favour of the one seeking the relief.
24. Held: Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction rests ultimately "in the sound judicial discretion of the Court".
25. Held: The guidelines are neither exhaustive, nor complete, nor absolute rules. There may be exceptional circumstances needing action. Applying them as prerequisites would nevertheless be a sound exercise of judicial discretion.
26. Noted: The suit is one under section 44 of the Transfer of Property Act ("the Act"). In considering an interim mandatory injunction in such a suit, the Court must also keep in mind the restriction on the transferee's right to joint possession.
27. Noted: The first paragraph of section 44 applies when one of two or more co-owners of immovable property transfers his share. The transferee then acquires the transferor's right to joint possession or other common or part enjoyment of the property. He also acquires the right to enforce a partition (division of jointly held property). This is subject to the conditions and liabilities affecting the share at the date of the transfer.
28. Noted: The second paragraph applies where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family. The section then does not entitle him to joint possession or other common or part enjoyment of the house.
29. Held: To attract the second paragraph, the subject matter of the transfer must be a dwelling house belonging to an undivided family. The transfer must be of a share in it to a person who is not a member of the family.
30. Held: To show a clear right and its infringement, the plaintiff must show a probable case that the property is a dwelling house belonging to an undivided family. There must be a strong probability of getting the relief claimed in the suit.
31. Held: On the second and third ingredients, the transferee's restricted right to joint possession and the dominant purpose of the second paragraph matter. There is danger of injury to the corresponding rights of the other family members, and of irreparable harm to the plaintiff. The Court's interference is then needed to protect the plaintiff's interest.
32. Held: As an interim injunction is an equitable relief, the Court must also ask whether withholding it would cause greater mischief or inconvenience than granting it. This is the balance of convenience.
33. Noted: The first point is whether one can reasonably take the view, before trial, that the property is a dwelling house belonging to an undivided family. The leading case is the Allahabad Full Bench decision in Sultan Begam v. Debi Prasad.
34. Noted: Sultan Begam concerned section 4 of the Partition Act (the judgment text writes Partnership Act, 1893). Where a share of such a dwelling house is transferred to a non-member who sues for partition, a family member who is a shareholder may undertake to buy the share. The court then values it and directs its sale to him.
35. Noted: The argument in Sultan Begam was that undivided family means a joint family, confined to Hindus or to Muhammadans following the Hindu rule. The counter-argument was that it applies generally to any family, Hindu, Muhammadan or Christian, owning a dwelling house not divided among its members. The case itself concerned a Muslim family.
36. Noted: The Full Bench found nothing in section 4 to limit it to any class of the community. The words undivided family appear to be borrowed from section 44. The second paragraph of section 44 is of general application. It forces a stranger transferee to enforce his rights by partition.
37. Noted: The Full Bench saw no reason for undivided family to be narrower in section 4 of the Partition Act than in section 44. Had the Legislature meant a limited operation, it would have used words such as undivided Hindu family or joint family.
38. Noted: The Full Bench said, citing Kalka Parshad v. Bankey Lall, that the object is to stop an outsider transferee from forcing his way into a dwelling house where the transferor's family members have a right to live. Undivided family means undivided qua the dwelling house in question: a family that owns the house but has not divided it.
39. Noted: In Khirode Chandra Ghoshal v. Saroda Prosad Mitra, a Calcutta Division Bench said "family" in the Partition Act has a liberal and comprehensive meaning. It includes a group of blood relations living in one house or under one head or management. It is not limited to descendants of a common ancestor.
40. Noted: In Nil Kamal Bhattacharjya v. Kamakshya Charan Bhattacharjya, the group were not male descendants of the common ancestor. They were sons of daughters of a grandson and of a son of the common ancestor. The Court applied Sultan Begam and held it was an undivided family, since the house had not been divided by metes and bounds.
41. Noted: The Madras High Court followed and applied Sultan Begam in Sivaramayya v. Venkata Subbamma.
42. Noted: In Bhim Singh v. Ratnakar (Orissa), the family was the plaintiff and defendants 1 and 2. Defendant 1 sold one-third of his half share in the house to defendants 7 and 10. The plaintiff sued for a permanent injunction against their joint possession.
43. Noted: In Bhim Singh, the courts found that the family members lived separately under an amicable arrangement, in different houses within one homestead. The alienees were put in possession.
44. Noted: Ranganath Misra J. held in Bhim Singh that when a family member transfers his share in the dwelling house to a stranger, the second paragraph of section 44 applies. The transferee does not become entitled to joint possession or joint enjoyment, though he can enforce partition of his share.
45. Noted: Misra J. said the object of the provision is to prevent strangers intruding into a family residence that only the family may possess and enjoy. The property was still an undivided dwelling house, so the stranger-transferees were barred from joint possession and should be kept out.
46. Noted: On whether enjoyment of ascertained separate portions, and the alienee taking possession, made a difference, Misra J. approved a passage from Udayanath Sahu v. Ratnakar Bej.
47. Noted: That passage says that if a stranger transferee gets possession of a share in the dwelling house, the possession becomes joint possession and is illegal. Courts cannot countenance illegal possession. Co-owners are entitled to a decree for eviction, or for injunction where the transferee threatens to take possession by force.
48. Noted: The passage adds a conditional point. If there had been a finding that joint status was severed but there was no partition by metes and bounds, the defendant was liable to be evicted from the residential houses under section 44.
49. Noted: Misra J. also dealt with the argument that the plaintiff had sued only for injunction, while the trial court decreed ejectment of the transferees. He held that once the plaintiff is protected by the second part of section 44, stranger purchasers can be restrained.
50. Noted: Misra J. held that even if the defendants have been put in possession or have come to possess jointly, they can be kept out by injunction. The effect would necessarily be ejectment. The stranger purchaser's remedy is partition, and until then he must keep out from joint possession.
51. Held: This is a correct statement of the law. The ratio of the decisions under section 4 of the Partition Act applies equally to the second paragraph of section 44. The provisions are complementary, and undivided family and dwelling house have the same meaning in both.
52. Noted: It is not disputed that, before 1951, the dwelling house belonged to the undivided family of the appellant and his father, who owned it as joint tenants.
53. Noted: The High Court relied on the appellant's letter of 12 March 1951 to his father. It also relied on the agreement of 23 August 1951, by which they severed their status as joint tenants and held as tenants in common in equal undivided halves.
54. Noted: The High Court held that converting the joint tenancy into a tenancy in common amounted to a division in the family itself with reference to the property. It therefore deemed a partition between the appellant and his father.
55. Noted: The High Court also relied on the later fact that, after the father's death and Sohrab's marriage, the two families occupied different portions and enjoyed them exclusively.
56. Held: Some notions of coparcenary property of a Hindu joint family have been brought in. They may not be quite accurate in considering section 44. What matters is whether the house belonged to an undivided family.
57. Held: Even if the family is "divided in status in the sense that they were holding the property as tenants in common", it is within section 44 so long as it is undivided qua the property. That means the property has not been divided by metes and bounds.
58. Noted: Cawasji, the appellant's father, transferred his undivided half share to Sohrab by a deed dated 16-4-1982 in the judgment text. Two questions may arise: whether that transaction is covered by section 44, and whether the appellant and his brother could be said afterwards to hold as an undivided family.
59. Noted: The transfer in favour of Sohrab was a transfer to a member of the family, because Sohrab was living with them. He attained 18 only on 25 December 1951 and lived with his father and brother until 1968, when he married. Only after marriage did the appellant and Sohrab occupy different portions and have different messes.
60. Held: There is no document evidencing partition of the house by metes and bounds. The documents show the appellant and his brother held equal undivided shares. The appellant has therefore shown a prima facie case that the dwelling house belonged to an undivided family of himself and his brother.
61. Held: The two brothers shall be deemed to hold the property as members of an undivided family. Without a partition by metes and bounds qua this property, they shall be deemed to have held the dwelling house as an undivided family.
62. Held: Prima facie, the transfer by defendants 1 to 3 comes within the mischief of the second paragraph of section 44.
63. Noted: The next question is whether irreparable injury would be caused to the appellant that money cannot compensate, and whether the balance of convenience favours him.
64. Noted: Section 44 does not give a transferee of such a dwelling house a right to joint possession. It confers a corresponding right on the other family members to deny joint possession to a stranger transferee.
65. Noted: Section 4 of the Partition Act gives a right to a member who has not transferred his share. When the transferee sues for partition, that member can buy the transferee's share at a value fixed under law.
66. Held: Both are valuable rights of the members of the undivided family, whatever the object for which they were conferred. Some cases say joint possession is denied to keep an outsider from forcing his way into a house where the other family members have a right to live. Others treat joint possession as illegal, leaving the stranger purchaser only a suit for partition.
67. Held: Denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other family members.
68. Noted: Mr. Sorabjee drew the Court's attention to circumstances showing that the fourth respondent knew the limited title of respondents 1 to 3 and the bar on joint possession. He bought with that knowledge and tried to overreach the Court by keeping the transaction secret and taking possession before the appellant could get redress.
69. Noted: The recitals in the agreement to sell of 21 December 1986 and the sale deed of 16 April 1987 clearly show the fourth respondent knew section 44. He bought with full knowledge of the other family members' rights and took a complete risk.
70. Noted: Clause 6 of the agreement dealt with a suit by the co-owner Dorab or another person against the vendors. If it produced an injunction (not an ad interim injunction) against the sale, the vendors could keep the sale in abeyance or cancel it. On cancellation the earnest money (a deposit paid to show a serious intent to buy) would be returned. The vendors would then transfer their interest to the purchaser or his nominee.
71. Held: Clause 6 clearly shows the fourth respondent knew respondents 1 to 3 had only a limited right to transfer their undivided half share to a stranger. The parties contemplated litigation.
72. Held: The sale was executed hurriedly "in a hush-hush manner keeping the entire transaction secret from the appellant". The purchasers were inducted in a way that suggests an attempt to forestall the situation. The respondents tried to gain undue advantage in a hurried and clandestine manner and defeat the appellant's attempt to go to court.
73. Noted: The suit was filed on 18 April 1987, within two days of the sale. That day the appellant obtained an interim ex parte order. When it was to be executed, the fourth respondent was reported to have taken possession. The order was then granted with the words remaining in possession bracketed and not given effect, pending a further decision.
74. Noted: By consent, a Commissioner was appointed on 22 April 1987. The Commissioner's report showed that not all the vendors' articles had been removed, and the purchasers' moveables were still being brought in.
75. Held: These facts showed the fourth respondent's anxiety to complete taking possession before the appellant could obtain any order from the Court.
76. Noted: Counsel also relied on the first respondent's affidavit that she still lived in the suit property. He relied on the fourth respondent's affidavit, which spoke as if he lived elsewhere. He relied on telephone directories showing the fourth respondent's residence and office at other places.
77. Held: This evidence shows the purchaser occupied the disputed property merely to establish his claim. He did not give up his earlier permanent residence. The appellant, by contrast, had to leave the portion where he lived, as he could not live there with a stranger.
78. Held: The respondents "cannot be permitted to take advantage of their own acts". They cannot defeat the appellant's claim by saying the old cause of action under section 44 no longer survived because they took possession.
79. Held: In these circumstances it is just and necessary to direct the respondents to undo what they did with knowledge of the appellant's rights. The purpose is to compel the purchaser to deny joint possession.
80. Held: These facts clearly establish that refusing an interim mandatory injunction will do irreparable injury to the appellant. The balance of convenience is also in his favour for granting it.
81. Held: The appeal is allowed, the High Court judgment is set aside, and the trial court's order is restored.
82. Noted: The Court's observations on facts are not to be taken as binding at the final disposal of the suit after trial.
83. Held: If the vendors wish to come and stay in the portion earlier in their possession, they may tell the Court. The trial court, on such a request, will pass appropriate orders.

Provisions discussed

• Section 44 of the Transfer of Property Act, first paragraph: a co-owner's transferee gets the transferor's right to joint possession or common enjoyment, and to enforce partition, subject to the conditions and liabilities at the date of transfer.
• Section 44, second paragraph: if the transferee of a share of a dwelling house belonging to an undivided family is not a family member, he gets no right to joint possession or common enjoyment of the house.
• Section 4 of the Partition Act: a stranger transferee of a share of such a dwelling house who sues for partition may be bought out by a family member who is a shareholder, at a value the court fixes. The Court treats it as complementary to section 44.
• Order 39 Rule 2 of the Code of Civil Procedure: the source of the Indian courts' power to issue a temporary injunction in mandatory form, as held by the Madras High Court.

Authorities

• Shepherd Homes Ltd. v. Sandham, [1970] 3 All ER 402: quoted. On a motion, the court must feel a high degree of assurance that the mandatory injunction was rightly granted, a higher standard than for a prohibitory injunction.
• Evans Marshall & Co. Ltd. v. Bertola SA, [1973] 1 All ER 992: quoted. Failure to show a reasonable prospect of a permanent injunction weighs heavily against an interlocutory one, but does not legally bar it.
• Films Rover International Ltd. & Ors. v. Cannon Film Sales Ltd., [1986] 3 All ER 772: quoted. Lower risk of injustice is the fundamental principle. Guidelines are derived from it.
• Locabail International Finance Ltd. v. Agroexpo, [1986] 1 All ER 901: mentioned within the Films Rover passage. The Court of Appeal did not mean to fetter the court's discretion.
• American Cyanamid (the Cyanamid case), (1975) 1 All ER 504, (1975) AC 396: mentioned within the Films Rover passage, for Lord Diplock's words against fettering flexibility, and for guidelines requiring only an arguable case.
• Cayne v. Global Natural Resources plc, [1984] 1 All ER 225: mentioned within the Films Rover passage. It compares the exceptions in which more than an arguable case is required.
• 24 Halsbury's Laws of England (4th edition), volume 24, item 948: the test for mandatory injunctions on interlocutory applications. It is a textbook, not a case.
• 42 American Jurisprudence (2d edition), page 745: cited for the law in the United States being the same. It is a textbook, not a case.
• Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 38 Bom. 381: noted. Beaman J. denied Indian courts the power to issue a temporary mandatory injunction. Shah J. disagreed.
• Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd., ILR 1914 16 Bom. 566: noted. The Bombay Division Bench took a different view from Beaman J., which now prevails in Bombay.
• M. Kandaswami Chetty v. P. Subramania Chetty, ILR 1918 41 Mad. 208: noted. Indian courts have the power under Order 39 Rule 2 CPC.
• Israil v. Shamser Rahman, ILR 1914 41 Cal. 436: noted. The High Court may issue an interim mandatory injunction. The court asks about a fair and substantial question, and about the balance of convenience and the status quo.
• Nandan Pictures Ltd. v. Art Pictures Ltd., AIR 1956 Cal. 428: noted. An interlocutory mandatory injunction only restores the status quo and does not create a new state of things.
• Sultan Begam and Ors. v. Debi Prasad, ILR 1908 30 All. 324: the leading case, followed. Undivided family has a general meaning and is not limited to Hindus.
• Kalka Parshad v. Bankey Lall, [1906] 9 Oudh Cases 158: cited within the Sultan Begam passage for the object of the provision.
• Khirode Chandra Ghoshal & Anr. v. Saroda Prosad Mitra, [1910] 7 IC 436: noted. "Family" has a liberal and comprehensive meaning.
• Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539: noted. The Sultan Begam principle was applied. The house was undivided because it was not divided by metes and bounds.
• Sivaramayya v. Venkata Subbamma, AIR 1930 Madras 561: noted. The Madras High Court followed Sultan Begam.
• Bhim Singh v. Ratnakar, AIR 1971 Orissa 198: quoted and approved. A stranger transferee is barred from joint possession and can be kept out by injunction.
• Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139: quoted within Bhim Singh. A stranger transferee's possession is joint and illegal, and he may be evicted.

Judgement

1. The appeal is allowed.
2. The judgment of the High Court is set aside.
3. The order of the trial court is restored. It is the interim mandatory injunction restraining the fourth respondent, his servants and agents from remaining in possession or enjoyment of the suit property. The trial court's permission for occasional entry by the fourth respondent stands with it.
4. Costs are awarded in this appeal. The judgment does not say who pays.
5. The observations on facts are not binding at the final disposal of the suit after trial.
6. If the vendors wish to come and stay in the portion earlier in their possession, they may tell the Court. The trial court will then pass appropriate orders on that request.

Legal Principle / Ratio

An interlocutory mandatory injunction is granted to preserve or restore the last non-contested position, or to undo an illegal act. The plaintiff needs a strong case for trial, a risk of irreparable or serious injury, and the balance of convenience. In a section 44 suit, a stranger transferee of a share in a dwelling house of an undivided family has no right to joint possession, and a family divided in status but not by metes and bounds is still undivided.

Key holding: it must be "necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money."

Critical Analysis

Analysis based on the judgment text.

• The Court says the guidelines are not exhaustive or absolute, and that exceptional circumstances may need action. The judgment does not say what counts as exceptional.
• The Court treats a higher standard than a prima facie case as the first guideline, then upholds the injunction on a prima facie case about the undivided family. It gives its finding on the family's status as prima facie only.
• The judgment says its observations on facts do not bind the trial court at final disposal. The family-status question stays open for trial.
• The judgment contains slips. It writes Partnership Act, 1893 for section 4 of the Partition Act. It dates the 1952 transfer to Sohrab as 16-4-1982 in one place. It gives the Udayanath Sahu report as AIR 1967 Orissa 139, while the headnote gives 1957.
• The judgment records the High Court's contrary view on severance and finds it mixed with notions of Hindu coparcenary. It does not address the High Court's view that the injunction would decide the suit without trial, apart from its findings on irreparable injury and balance of convenience.

Significance

• The case adopts English guidelines for interlocutory mandatory injunctions into Indian law. They are a strong case for trial, irreparable or serious injury, and balance of convenience.
• It treats the grant as a matter of sound judicial discretion, and the guidelines as neither exhaustive nor absolute.
• It holds that a mandatory injunction may restore the status quo or undo an illegal act, even where the stranger purchaser is already in possession.
• It shows that a transferee who takes possession secretly and in haste cannot rely on that possession to defeat the claim.
• It reads undivided family and dwelling house the same way in section 44 of the Transfer of Property Act and section 4 of the Partition Act.
• It holds that a family divided in status, holding as tenants in common, is still within section 44 if the property is not divided by metes and bounds.

Exam-Important Points

• Rule: the three guidelines are a strong case for trial, necessity to prevent irreparable or serious injury, and balance of convenience. Trap: a prima facie case is the test for a prohibitory injunction, not a mandatory one.
• Rule: the grant rests in the sound judicial discretion of the Court. Trap: the guidelines are not absolute rules, and exceptional cases may need action.
• Rule: an interlocutory mandatory injunction is generally granted to preserve or restore the status quo of the last non-contested position, or to undo illegal acts. Trap: it does not create a new state of things.
• Rule: English cases cited are Shepherd Homes v. Sandham, Evans Marshall v. Bertola and Films Rover v. Cannon Film Sales. The lower-risk-of-injustice principle comes from Films Rover.
• Rule: under the second paragraph of section 44, a stranger transferee of a share of a dwelling house belonging to an undivided family gets no joint possession. His remedy is partition.
• Rule: undivided family in section 44 is read like the same words in section 4 of the Partition Act. It is not limited to Hindus. Trap: it means undivided qua the dwelling house, not a Hindu coparcenary.
• Rule: a family divided in status, holding as tenants in common, is within section 44 if the property is not divided by metes and bounds.
• Rule: a purchaser who knew of the restriction and took possession in a hurry cannot rely on that possession. Trap: possession already taken did not defeat the mandatory injunction.
• Result: appeal allowed; High Court judgment set aside; trial court's injunction restored with costs; vendors may ask to return to their portion.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited. The citation is printed in the judgment text.