Holding

A dwelling house that has not been partitioned by metes and bounds remains an undivided family property, and a stranger purchaser of a share cannot claim joint possession; therefore, an interim mandatory injunction may be granted to preserve the status quo.

Summary

The appellant, a co‑owner of an undivided family dwelling, sued to restrain the sale of his brother's half‑share to a stranger and to prevent the stranger from taking possession. The trial court granted an interim mandatory injunction, but the Bombay High Court set it aside, holding that the facts did not show a prima facie case of irreparable injury or a balance of convenience in favour of the appellant. On appeal, the Supreme Court examined whether the property remained a dwelling house belonging to an undivided family under section 44 of the Transfer of Property Act and whether the stranger purchaser could claim joint possession. The Court held that, in the absence of a metes‑and‑bounds partition, the house was still an undivided family dwelling, the transfer fell within the mischief of section 44, and the appellant had shown a strong case, irreparable injury, and a favourable balance of convenience. Consequently, the Supreme Court restored the trial court's injunction and allowed the appeal.

Issues considered

The property in question is a dwelling house belonging to an undivided family within the meaning of section 44 of the Transfer of Property Act.
Whether the transfer of a co‑owner's share to a stranger deprives the stranger of any right to joint possession.
Whether the appellant satisfied the higher standard required for an interlocutory mandatory injunction (strong case, irreparable injury, balance of convenience).
Whether the High Court erred in setting aside the interim mandatory injunction.

Legislation cited

Code of Civil Procedures. Order 39 Rule 2
Partition Acts. 4
Transfer of Property Acts. 44

Subjects

interim mandatory injunctionTransfer of Property Actsection 44undivided familyjoint possessionpartitionproperty lawinjunctionco‑ownership

Judgment

DORAB CAWASJI WARDEN
A
v.
COOMI SORAB WARDEN & ORS.

FEBRUARY 13, 1990

B [L.M. SHARMA AND V. RAMASWAMY, JJ.]

Transfer of Property Act: Section 44--Grant of interim manda-
tory injunction in suit-Court to keep in mind restriction on right of
transferee to joint possession.

c ownersTheof appellant along with bis father and mother, were the joint
the suit property. Aller the death of the appellant's mother,
be and bis father executed an agreement dated 23rd August, 1951 by
which they severed their status as joint owners and agreed to bold the
property es tenants in common. On 16th April, 1952 the appellant's
father transferred his undivided half share in the suit property in
D favour of his another son Sobrab. Thus, the appellant and his brother
Sohrab came to bold an equal undivided one half share each as tenants
in common in respect of the said property.

Aller Sohrab's death, bis widow, the first respondent, and bis
minor sons, the second and third respondents, sold on 16th April, 1987
B their undivided one half share in the property to the fourth respondent
and his wife. On 18th April, 1987 the appellant filed a suit under section
44 of the Transfer of Property Act against the respondents inter alia on
the ground that the suit property was a dwelling house belonging to an
undivided family and therefore the fourth respondent who was a
stranger to the family bad no right to have joint possession or common
F enjoyment of the property on the basis of purchase of undivided share.

The appellant also took out a notice of motion in the suit in which
it was claimed that he was entitled to interim/perpetual injunction rest-
raining respondents I, 2 and 3 from parting with possession of the suit
property. He further claimed that if the said relief was not granted
G irreparable loss and great prejudice will be caused to him which could
not be compensated in terms of money, and that the equity and balance
of convenience was in his favour.

The, Trial Court granted interim injunction the same day but
when the order was sought to be executed, it was reported that the 4th
H respondent had already taken possession.

332
D.C. WARDEN v. C.S. WARDEN 333

The suit and the notice of motion were resisted on the grounds
A
that the appellant and respondents 1, 2 and 3 were owners of the pro-
..>(
perty in equal moity but the property was not joint family property or
property belonging to an undivided family; that there had already been
a partition as to the user of the property with the result that Sohrab's
family were in exclusive possession of ground floor and a garage in the
building, and that the fourth respondent had already taken possession B
of that portion of the property. It was further contended that the
j respondents would suffer irreparable loss and great prejudice if the
injunction was granted, and that the balance of convenience was not in
favour of the appellant.

The Trial Court found that the suit property was a dwelling house
belonging to an undivided family, that there was no partition of the c
same by metes and bounds; that so far as the suit property was con-
cerned the appellant and his family and the family of respondents 1, 2
and 3 were joint and undivided; that the case would fall within the scope
of the second paragraph of section 44 of the Transfer of Property Act;
and that respondent No. 4 and his wife as strangers were not entitled to D
joint possession of the said dwelling house. Since the 4th defendant had
claimed that he had already entered into possession, the Court granted
interim mandatory injunction to the effect that the fourth respondent,
his servants and agents were restrained from remaining in possession or
enjoyment of the suit property.
E
On appeal, the High Court was of the view that prima facie the
facts indicate that throughout the parties have lived separately; that
there appears to have been a 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 F
\ granting of interim mandatory injunction will have the effect of virtu-
ally deciding the suit without a trial; and that the plaintiff has not made
out a prima facie case that he would suffer irreparable damage if In-
junction was not granted or that the balance of convenience was in his
favour. In that view, the learned Single Judge allowed the appeal and
set aside the order granting the injunction. G

Before this Court it was also contended on behalf of the appellant
-( that the fourth respondent was fully awar~ of the limited and restrictive
' title of respondents 1, 2 and 3 and I.he 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 he tried to over-reach H
334 SUPREME COURT REPORTS [1990) 1 S.C.R.

the Court by keeping the whole transaction secret and taking possession
A
of the property purchased before the appellant could get legal redress
from the Court. ~

Allowing the appeal, this Court,

a HELD: (1) The courts can grant interlocutory mandatory injunc-
lion in certain special circumstances. [340E)
').
(i) The relief of interlocutory mandatory injunction is granted
~enerally to preserve or restore the status quo of the last non-con-
tested status Whiclt preceded the pending controversy until the final
bearing when full relief may be granted. Bnt since the granting or
c non-granting of such an injunction may cause great injustice or irre-
parable harm to one of the parties, the Courts have evolved certain
guidelines. [343F-HI

(3) Generally stated, the guidelines are: (1) The plaintiff has a
0 strong case for trial. Thal 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 prev•ent irreparable or serious injury which nor-
mally cannot be compens:oted in terms of money; (3) The balance of
convenience is in favour of the one seeking such relief. [344A-BI

E Shepherd Homes Ltd. v. Sandham, [1970] 3 All ER 402; Evans
Marcgall & Co. Ltd. v. Berto/a SA, [1973] 1 All ER 992; Films Rover
International Ltd. & Ors. v. Cannon Film Sales Ltd., [1986] 3 All ER
772; Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 (38) Born.
381; Champsey Bgimji & Co. v. The Jamna Flour Mills Co. Ltd., ILR
1914 (16) Born. 566; M. Kandaswami Chetty v. P. Subramania, ILR
(1918) (4) Mad. 208; l~railv. Shamser Rahman, ILR 1914 (41) Cal. 436
" and Nan'1an Pictures Ltd. v. Art Pictures, AIR 1956 Cal. 428, referred
to.
!

(4) Being essentially an equitable relief, the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the sound
'O judicial discretion of the Court to be exercised in the light of the facts
and circumstances in each case. [344C]

(5) in considering the question of interim mandatory injunction
in a suit f'iled under section 44 of the Act, the Court has also to keep in
r
mind the restriction on the rights of the transferee to joint possession
H under that section. [344D]
D.C. WARDEN v. C.S. WARDEN 335

(6) In order to attract the second paragraph of section 44 of the A
Act the snhject-matter of the transfer has to be dwelling house belong-
ing to an undivided family and the transfer is of a share in the same to a
person who is not a member of the family. [345A]

Sultan Begam and Ors. v. Debi Prasad, [1908] lLR 30 All 324;
Khirode Chandra Ghoshal & Anr. v. Saroda Prasad Mitra, [1910] 7 IC B
436; Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhat-
tacharjya & Anr., AIR 1928 Cal. 539; Sivaramayya v. Benkata Sub-.
bamma, AIR 1930 Madras 561; Bhim Singh v. Ratnakar, AIR 1971
Orissa 198 and Udayanath Sahu v. Ratnakar Bej, AIR 1957 Orissa 139,
referred to.

(7) The ratio of the decisions rendered under section 4 of the C
Partition Act equally apply to the interpretation of the second p;ira-
'
graph of section 44 as the provisions are complementary to each other
and the terms "undivided family" and "dwelling house" have the same
meaning in both the sections. [349B]
D
(8) 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 of section 44 of
the Act. [350D I
E
(9) In the absence of a documents evidencing partition of the suit
honse by metes and bounds and on the documentary evidence showing
that the property is held by the appellant and his brother in equal
undivided shares, the plaintiff-appellant has shown a prima facie case
that the dwelling house belonged to an undivided family consisting of
himself and his brother. Therefore, the transfer by defendants l to 3 p
wonld come within the mischief of second paragraph of section 44 of the
Act. [350B-C]

(10) Clause 6 of the agreement to sell clearly shows that the
fourth respondent knew that respondents l to 3 had only a limited right
to transfer their undivided one halt share to a stranger purchaser and G
they comtemplated lit!gation in this reg;ird. The ·Said sale was itself
hurridely executed in a hush-hush manner keeping the entire transac-
tion secret from the appellant. The purcha•<rs were also inducted in the
premises in a manner which clearly suggests that the respondents were
attempting to forestall the situation and to gain an nndue advantage in
hurried and clandestine manner defeating the appellant's attempt to go H
336 SUPREME COURT REPORTS I1990] 1 S.C.R.
to court for appropriate relief. The respondents in such circumstances
A
cannot be petmitted to take advantage of their owp 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. [351F; 352D-E]

B ( 11) The facts in the instant case clearly establish that not only a
refusal to grant an interim mandatory injunction will do irreparable
injury to the appellant but also balance of convenience is in favour of
the appellant for the grant of such injunction. [352F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2422
of 1989.
c
I From the Judgment and Order dated 3.9.1988 of the Bombay
High Court in Appeal from Order No. 707 of 1987.

Soli J. Sorabjee, R.F. Nariman, Raian Karanjawala, Ms.
D Meenakshi Arora, Ms. Nandini Gore and Ms. Manik Karanjawala for
the Appellant.

Anil Diwan, Harish N. Salve, Ms. Indu Malhotra, Mrs. Ayesha
Karim, I.R. Joshi, M. Gandhi and H.J. Javeri for the Respondent>.

E The Judgment of the Court was delivered by

V. RAMASWAMI, J. This appeal arises out of notice of motion
taken by the plaintiff in Civil Suit No. 2987 of 1987 on the file of the
Bombay City Civil Court at Bombay for interim injunction pending I
the suit restraining defendants J to 3 from parting with possession and -~
F defendants 4 and 5 from entering into or taking possession and or
remaining in possession or enjoyment of the suit property, namely, l
Dorab Villa, 29, Perry Cross Road, Bandra, Bombay, or any part or
portion thereof. The appellant is the plaintiff and defendants 1 to 5
are respondents 1 to 5.

G The appellant 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
a(lpears that the super-structure on the land was constructed subse-
H q uent to the purchase. At the time when the property was purchased
D.C. WARDEN v. C.S. WARDEN !RAMASWAMI, J.] 337

the appellant was a minor. By a registered deed of declaration that the
A
appellant made a declaration that the appellant has an undivided share
.,._..lo( 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 B
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 surviying joint tenants came to own the
entire property. Under an agreement dated 23rd of August, 1951 the
appellant and his father, who were then the joint tenants of the said
property, agreed to hold the same as tenants in common, each having
an equal undivided share therein so that each can dispose of his undi- c
vided share in the property and each share become a separate stock of
descent. On 16th April, 1952 the appellant's father transferred his
~. undivided half share in the suit property in favour of his another son by
name Sohrab WaTden in consideration of the said Sohrab releasing in
favour of his father his undivided share in some other property D
described in the second schedule to that document. Thus the appellant
and his brother Sohrab came to hold an equal undivided one half share
each, as tenants in common in respect of the said property.

~ Sohrab died intestate on 12th October, 1976 lea:ving behind him
his .widow the first respondent and his two minor sons the second and E
third respondents in this appeal. Respondents 1 to 3 sold their undi-
vided one half share in the said property to the fourth respondent and
~
his wife under a sale deed dated 16th April, 1987. On the 18th April,

~ 1987 praying for a decree directing respondents 1, 2 and 3 from parting
with possession of the said property o,r any part thereof and/or induct-
ing any third party including respondent 4 into the said property or any F
·\ part or portion thereof, and for further directions against respondents
4 and 5 from entering into or talcing possession and/or remaining in
possession or enjoyment of the suit property from defendants 1, 2 and
3 or otherwise. The fifth respondent was impleaded on the assumption
that he and the fourth respondent jointly purcha8ed the property but it
is now accepted that he is not one of the purc.1.:sers and the property G
was purchased by-the fourth respondent and his wife. Pending the suit
the appellant prayed for an interim injunction restraining the respon-
--~ dents 1 to 3 from parting with possession of the said property or any
part thereof and/or inducting the fourth respondent into the suit pro-
perty or any part or portion thereof and a similar in junction restraining
the fourth respondent from entering into or talcing possession and/or H
338 SUPREME COURT REPORTS (1990] 1 S.C.R.

remaining in possession or enjoyment of the suit property or part
A
thereof.
)...
The suit was filed on the ground that the suit property is a dwel-
ling house belonging to an undivided family, that there had not been
any division of the said property at any time, that the plaintiff and his
B deceased brother Sohrab during his life 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
c with th~ 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 ad interim relief as prayed for and that
if the said relief is not granted irreparable loss and great prejudice will
D 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 herself and two minor sons it was con- ~
E tended that though the appellant and respondents 1, 2 and 3 were
owning the property in equal moity they were holding it in their indi-
vidual capacity and not as members of joint family and that the suit
property is not joint family property or property belonging to an undi-
vided family. The further case of the defendant was that since 1968
when Sohrab got married the appellant and ·his family had been in
F exclusive occupation of the upper floor of the Bungalow and a garage
while the entire ground floor of the b'!ilding of the said property and l
another garage was in the exclusive use and possession of Sohrab and
his family and that the compound, staircase and the terrace were in
joint possession. They were also having separate mess, separate elect-
ricity and water meters and that they were paying proportionate taxes.
G After the death of the said Sohrab, respondents 1 to 3 continued to
stay and occupy exclusively the said ground floor as well as the garage
till the said one half portion of the property was sold and conveyed
absolutely to the fourth respondent and his wife. In the circumstances )'
though the property was held as tenants in common, there had already
been a partition as to the user of the property. The fourth respondent
H had taken possession of that portion of the property which was in
D.C. WARDEN v. C.S. WARDEN [RAMASWAMI, J.] 339

occupation of respondents 1 to 3 in pursuance of the sale deed. The
further contention was that it is not the appellant who would suffer A
...>( irreparable loss and great prejudice if the injunction is granted but it is
the respondents who would suffer the loss and prejudice and that the
balance of convenience is not in favour of the appellant.

The trial court found th4t the suit property is dwelling house B
belonging to an undivided family, that there was no partition of the
~ same by metes and bounds at any time, that the plaintiff and his father
at the material time were undivided qua the entire suit property, that
though the family of the appellant and the family of his brother Sohrab
may be divided for food and worship they were not divided qua the suit
property, that so far as the suit property is concerned the appellant and
his family and the family of respondents 1, 2 and 3 were joint and c
undivided and that the case would fall within the scope of the second
paragraph of section 44 of the Transfer of Property Act and that,
--oi therefore, respondent 4 and his wife as strangers were not entitled to
joint possession of the said family dwelling house.
D
Since the defendant had claim,ed 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
4.... or portion thereof. However, the learned Judge ordered that tliis
injunction order would not prevent the fourth respondent to occasion• E
ally 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 prima facie the
facts indicate that throughout the parties have lived separately, that F
\ 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 the
effect of virtually deciding the suit without a trial and that the plaintiff G
has not made out a prima facie case that the plaintiff would suffer
irrepaq1ble damage, if any injunction is not granted or that the balance
-( of convenience kin his favour. In that view the learned Single Judge
allowed the appeal and set aside the order granting the injunction but
directed that during the pendency of the suit the fourth respondent
and his wife shall not make any permanent alterations in the suit H
340 SUPREME COURT REPORTS [1990] 1 S.C.R.

premises nor shall they induct any third party, or create any third party
A interest over the suit property.

Sale deed in favour of the fourth respondent recites that the
possession of that portion of the property which was the subject matter
of the sale had been handed over to the purchaser and that purchaser
-B can continue to be in posse:ssion without any let or hindrance by the
vendees. At the time of the Commissioner's inspection immediately
after filing of the suit except that there were some of the items belong-
ing to respondents 1 to 3, it was found that the fourth respondent had
taken possession. That was the finding of the trial court and it was on
that basis the injunction in a mandatory form was granted. In fact, in
this Court also the learned counsel appearing for the parties proceeded
c on the basis that the purchaser was inducted in the possession of the
disputed portion of the house even by the time the Commission~r
visited the place. We, therefore, hold that the purchasers have
occupied the. disputed portion and the question, therefore, for consi-
deration is whether the appellant is entitled to the injunction in a
D mandatory form directing the fourth respondent-purchaser to vacate
the premises.

The trial court gave an interim mandatory injunction directing
the fourth respondent not to continue in possession. There could be no
doubt that the courts can grant such interlocutory mandatory injunc- .)
E · tion in certain special circumstances. It would be very useful to refer to
some of the English cases which have given some guidelines in granting
such injunctions.

In Shepherd Homes Ltd. v. Sandham, [1970] 3 All ER 402,
Megarry J. observed:
F
"(iii) On motion, as contrasted with the trial, the court was j
/
far more reluctant to grant a mandatory injunction; in a
normal case the court must, inter alia, feel a high degree of
assurance that at the trial it will appear that the injunction
was rightly granted; and this was a higher standard than
G was required for a prohibitory injunction."

In Evans Marshall & Co. Ltd. v. Berto/a SA, [1973] l All ER 992
the Court of Appeal held that:
• )
"Although the failure of a plaintiff to show that he had a
H reasonable prospect of obtaining a permanent injunction at
D.C. WARDEN v. C.S. WARDEN [RAMASWAMI, J.J 341

the trial was a factor which would normally weigh heavily ·A
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. Canno.n Film .Sales Ltd.,
[ 1986] 3 All ER 772 Hoffmann, J. observed in that case: B

"But I think it is important in this area to distinguish bet-
ween fundamental principles and what are sometimes
described as 'guidelines', i.e. usef\11 generalisations about
the way to deal with the normal run of cases falling within a
particular category. The principal c;!ilemma about the grant
of interlocutory injunctions, whether prohibitory or man-
c
datory, is that there is by definition a risk that the court
may make the 'wrong• decision, in the sense of granting an
injunction to a party who fails to establish his right at the
trial (or would fail if there was a trial) or alternatively, in
failing to grant an injunction to a party who succeeds (or D
would succeed) at triaL A fundamental principle is there-
fore that the court should take whichever course appears to
carry the lower.risk of injustice if it should turn o.ut to have
been 'wrong' in the sens.e I have described. The guidelines
for th.e grant .of both kinc;ls of interlocutory injunctions are
derived from this principle." E

Again at page 781 the.learned Judge observed:

"The question of substance is whether the granting of the

.. ~-
injunction would carry that higher risk of injustice which is
normally associated with the grant of a mandatory injunc- F
tion. The second point is that in cases in which there can be
no dispute about the use of the term 'mandatory' to de-
scribe the injunction, the same question of.substance will
determine whether the case is 'normal' and therefore
within the guideline or 'exceptional' and therefore requir-
ing special treatment. If it appears to the court that, excep- G
tionally, the case is one. in whiCh withholding a mandatory
interlocutory ·injunction would be in fact carry a greater
risk of injustice than granting it even though the court does
not feel a 'high degree cif assurance' about the plaintiffs
chances of establishing his right, there cannot be any
rational basis for withholding the injunction." H
342 SUPREME COURT REPORTS [1990] 1 S.C.R.

and concluded that:
A
"These considerations lead me to conclude that the Coun
of Appeal in Locabail International Finance Ltd. v.
Agroexport, [1986] l All ER 901at906, (1986) 1WLR657
at 664 was not intending to 'fetter the court's discretion by
laying down any rules which would have the effect of limit-
ing the flexibility of the remedy', to quote Lord Diplock in
the Cyanamid case ( 1975) l All ER 504 at 5 lO, ( 1975) AC
396 at 407. Just as the Cyanamid guidelines for prohibitory
injunctions which require a plaintiff to show no more than
an arguable case recognise the existence of exceptions in
which more is required (compare Cayne v. Global Natural
c Reserces pie, [ 1984] l All ER 225, so the guideline
approved for mandatory injunctions in Locabail recognises
that there may be cases in which less is sufficient."

On the test . to be applied in granting mandatory injunctions on
D interlocutory applications in 24 Halsbury's Laws of England (4th
Edn.) para 948 it is stated:

"A mandatory injunction can be granted on an interlocu-
tory application as well as at the hearing, but, in the ~
absence of special circumstances, it will not normally be
E 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 injunc-
tion is about to be applied for, the defendant hurries on the
F 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
G 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
H Amirbhai, ILR 1914 38 Born. 381, Beaman, J. was of the view that the
D.C. WARDEN v. C.S. WARDEN [RAMASWAMI, J.] 343

court's in India have no power to issue a temporary injunction in a
A
mandatory form but Shah, J. who constituted a Bench in that case did
not agree with Beaman, J. in this view. However, in a later Division
Bench judgment in Champsey Bhimii & Co. v. The Jamna Flour Mills
Co. Ltd;, ILR 1914 16 Born. 566, two learned Judges of the Bombay
High Court took a different view from Beaman, J. and this view is now
the prevailing view in the Bombay High Court. In M. Kandaswami B
Chetty v. I'. Subramania Chetty, ILR 1918 41 Mad. 208, a Division
Bench of the Madras High Court held that court's in India have the
power by virtue of Order 39 Rule 2 of the Code of Civil Procedure to
issue temporary injunction in a mandatory form and differed from
Beaman's view accepting the view in Champsey Bhimji & Co. v.
Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, ILR 1914
41 Cal. 436, it was held that the High Court was competent to issue an c
interim injunction in a mandatory form. It was further held in this case
that in granting an interim injunction what the Court had to determine
was whether there was a fair and substantial question to be decided as
to what the rights of the parties were and whether the nature and
difficulty of the questions was such that it was proper that the injunc- D
tion should be granted until the time for deciding them should arrive.
It was further held that the Court should consider as to where the
balance of convenience lie and whether it is desirable that the status
quo should be maintained. While accepting that it is not possihle to say
that in no circumstances will the Courts in India have any jurisdiction
to issue an ad interim in junction of a mandatory character, in Nandan E
Pictures Ltd. v. Art. Pictures Ltd. & Ors., AIR 1956 Cal. 428 a Division
Bench was of the view that if the mandatory injunction is granted at all
on an interlocutory application it is granted only to restore the status
quo and not granted to esablish a new state of things differing from the
state which existed at the date when the suit was instituted.
F
The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
non-contested status which preceded the pending_ controversy until
the final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done. or the restoration
of that which was wrongfully taken from the party complaining. But G
since the granting of such 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 alterna-
tively 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 guideli11es are: H
344 SUPREME COURT REPORTS [1990) 1 S.C.R.

( 1) The plaintiff has a strong case for trail. That is, it sh~ll be of a
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.
B
(3) The balance of convenience is in favour of the one seeking
such relief.

Being essentially an equitable relief th~ 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
c 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 pre·
requisite for the grant or refusal of such injunctions would be a sound
exercise of a judicial discretion.
D
The suit is one filed under section 44 of the Transfer of Pro·
perty Act (hereinafter referred to as 'the Act'). In considering the
question of interim mandatory injunction in a suit filed under section
44 of the Act the Court has also to keep in mind the restriction on the )
rights of the transferee to joint possession under that section .. The
E section reads as follows:· /

"44. Where one of two or more co-owners of immoveable
property legally competent in that behalf transfers his share
of such property or any interest therein, the transferee
acquires, as to such share or interest, and so far as is neces·
p sary to give effect to the transfer, the transferor's right to .J
joint possession or other common or part enjoyment of the
property, and to enforce a partition of the same, but sub·
ject to the conditions and liability affecting, at the date of
the transfer, the share or interest so transferred.

G Where the transferee of a share of a dwelling-house
belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle )
him to joint possession or other common or part enjoyment
of the house."

H In order to attract the second paragraph of this section the
D.C. WARDEN v. C.S. WARDEN [RAMASWAMI, J.] 345

subject-matter of the transfer has to be a dwelling house belonging to A
an undivided family and the transfer is a share in the same to a person
who is not a member of the family. Therefore, in order to satisfy the
first ingredient of clear existence of the right and its infringment, the
plaintiff will have to show a probable case that the suit property is a
dwelling-house and it belonged to an undivided family. In other
words, on the facts before the Court there is a strong probability of the B
plaintiff getting the relief prayed for by him in the suit. On the second
) and third ingredients having regard to the restriction on the rights of a
transferee for joint possession and the dominant purp0se of the second
paragraph of section 44 of the Act, there is danger of an injury or
violation of the corresponding rights of the other members of the
family and an irreparable harm to the plaintiff and the Court's interfe- C
rence is necessary to protect the interest of the plaintiff. Since the
relief of an interim injunction is all the same an equitable relief the
Court shall also consider whether the. comparative mischief or incon-
venience 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. D

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 undi-
vided 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 E
decided by the Full Bench of the Allahabad High Court in Sultan
Begam and Ors. v. Debi Prasad, ]1908) !LR 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 F
of such family and such transferee sues for partition, the Court shall, if
any member of the family, being a share-holder shall undertake to buy
the share of such transferee make a valuation of such share in such
manner as it thinks fit and direct the· sale of such share to such share-
holder. The argument was that the words 'undivided family' as used in
the section mean a joint family anti are confined to Hindus or to G
Muhammadans, who have adopted the Hindu rule as to joint family
property. The counter argument was that the expression is of general
application and means· a family whether Hindu, Muhammadan,
Christian etc. possessed of a dwelling house· which has not been
divided or partitioned among the members of the family. The case
itself related to a Muslim family to whom the house belonged. The full H
Bench observed:
346 SUPREME COURT REPORTS [1990] 1 S.C.R.

" ... in it (section 4 of the Partition Act) we find nothing to
A indicate that it was intended to apply to any limited class of
the community. The words 'undivided family' as used in
this section appear to be borrowed from section 44 of the
Transfer of Property Act. The last clause of that section
prestribes that where the transferee of a share of a dwelling
B house belonging to an undivided family is not a member of
the family, nothing in this section shall be deemed to entitle
him to joint possession or other common or part enjoyment
of the dwelling house. This provision of the Statute is
clearly of general application, and the effect of it is to com-
pel the transferee of a dwelling house belonging to an undi-
vided family, who is a stranger to the family, to enforce his
c rights in regard to such share by partition. There appears to
me to be no reason why the words 'undivided family' as
used in section 4 of the Partition Act, should have a
narrower meaning than they have in section 44 of the
Transfer of Property Act. If the Legislature intended that
D section 4 should have limited operation, we should expect .
to find some indication of this in the language of the sec-
tion. For example, instead of the words 'undivided family'
the expression 'undivided Hindu family' or 'joint family'
might have been used.

E With reference to the object and purpose of such a provision the Full
Bench further observed:

"as was pointed out by Mr. Wells, Judicial Commissioner,
in the case of Kalka Parshad v. Bankey Lall, [1906] 9 Oudh
Cases, 158 is to prevent a transferee of a member of a
F family who is an outsider from forcing his way into a dwel-
ling house in which other members of his transferor's
family have a right to 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'."
G
Again in construing the word "family" and 'undivided family' a
Division bench of the Calcutta High Court in Khirode Chandra Ghos- W
hal&Anr. v.SarodaProsadMitra, [1910PIC436observed: ,-

"The word 'family', as used in the Partition Act, ought to
H be given a liberal and comprehensive meaning, and it does
D.C. WARDEN v. C.S. WARDEN [RAMASWAMI, J.] 347

· include a group of persons related in blood, who live in one
A
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."
B
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
ancestor and the sons of a daughter of a son of the said common C
ancestor. The learned Judge applied the principle inundated in Sultan
Begam v. Debi Prasad, (supra) to this family and held that it was an
undivided family since the house had not been divided by metes and
bounds among themselves. The Madras High Court also followed and
applied the ratio of this judgment in the decision in Sivaramayya v.
Venkata Subbamma & Ors., AIR 1930 Madras 561. The next decision D
to be noted is the one reported in Bhim Singh v. Ratnkar., AIR 1971
Orissa 198. In that case the undivided family consisted of the plaintiff
and the defendants 1 and 2 therein. The first defendant had alienated
1/3 of his half share in the house property in favour of defendants 7
and IO who were the appellants before the High Court. The suit was
filed for a permanent injunction restraining defendants 7 and 10 from E
jointly possessing the disputed house alongwith the plaintiff and
defendant 2. The facts as found by the courts were that by an amicable
arrangement among plaintiff and defendants 1 and 2 they were living
separately for a long time, had separated their residences and were
living in different houses unconnected with each other but all situate in
one homestead and that after the first defendant had alienated his F
separate interest as well as his separate house in favour of the alienees
and in pursuance thereof the alienees were put jn possession. After
referring to the judgments we have quoted above and following the
principles therein, Ranganath Misra, J. as he then was held:

"If in this state cf things, a member of the family transfers G
his share in the dwelling house to a stranger paragraph 2 of
section 44 of the Transfer of Property Act comes into play
and the transferee does not become entitled to joint posses-
sion or any joint enjoyment of the dwelling house although
he would have the right to enforce a partition of his share.
The object of the provision in section 44 is to prevent the H
348 SUPREME COURT REPORTS [1990] 1 S.C.R.

intrusion of the strangers into the family residence which is
A
allowed to be possessed and en joyed by the members of the
family alone in spite of the transfer of a share therein in
favour of a stranger. The factual position as has been
determined is that the property is still an undivided dwel-
ling house, possession and enjoyment whereof are confined
B to the members of the family. The stranger-transferees
being debarred by law from exercising right of joint posses-
sion 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 por-
tions of the common dwelling house and the alienee taking possession
c 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
D in the dwelling Muse, the possession becomes a joint pos-
session and is illegal. Courts cannot countenance or foster
illegal possession. The possession of the defendant-trans-
feree in such a case becomes illegal. Plaintiff's co-owners
are entitled to get a. decree for eviction or even for injunc-
tion where the transferee threatens to get possession by
E force. If there had been a finding that there was severance
of joint status but no partition by metes and bounds,
defendant I was liable to be evicted from· the residential
houses and Bari under section 44 of the T .P. Act."

The learned Judge further held:
F
The last contention of Mr. Pal is that the plaintiff sued for
injunction only. The learned trial judge, however, has decreed eject-
ment of the transferee defendants and that decree has been upheld.
Once it is held that the plaintiff is entitled to protection under the
second part of section 44 of the Transfer of Property Act and the
G stranger purchasers are liable to be restrained, it would follow that
even if the defendants have been put in possession or have come
jointly to possess they can be kupt out by injunction. The effect of that
injunction would necessarily mean ejectment. In that sense and to the
said extent, the decree of the trial court upheld by the lower appellate
court must be taken to be sustainable. ·The remedy of the stranger
H purchaser is actually one of partition. Until then, he is obliged to keep
D.C. WARDEN v. C.S. WARDEN IRAMASWAMI, J.] 349

out from asserting joint possessi·on."
A
We may respectfully state that this is a correct statement of the
law. There could be no doubt that the ratio of the decisions rendered
under section 4 of the Partition Act equally apply to the interpretation
of the second paragraph of section 44 as the provisions are comp-
lementary to each other and the terms "undivided family" and "dwel- B
ling house" have the same meaning in both the sections.

It is not disputed that prior to 1951 the suit dwelling house
belonged to the undivided family of the appellant and his father and
they were owning the same as joint tenants. The High Court has relied
on a letter dated 12th March, 1951 of the appellant to his father in
which the appellant had expressed a desire to retain his sh~re sepa- c
rately so as to enable him to dispose of the same in a manner he choses
and also enable his heirs to succeed. In pursuance of this letter the
appellant and his father executed an agreement dated 23rd of August.
1951 by which they declared that they have severed their status as joint
tenants and that henceforth they were holding the said piece of land D
and building as tenants in common in equal undivided half share. In
the view of the High Court this conversion of joint tenancy of an
undivided family into a tenancy in common of the members of that
undivided family amounts to a division in the family itself with refe-
rence to the property and that, therefore, there shall be deemed to
have been a partition between the appellant and his father. In support E
of this conclusion the High Court also relied on the further fact that
subsequent to the death of the father and marriage of Sohrab the
appellant's family and Sohrab's family were occupying different por-
tions 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 consi- F
dering section 44; but what i> relevant for the purpose of these pro-
ceedings 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 of G
section 4"1 of the Act.

We had also noticed earlier that Cawasji, the father of the appel-
lant transferred his undivided half share in the suit property in favour
of his son Sohrab under a deed dated 16-4-1982. Two questions ma>
arise for consideration whether this transaction is covered by· seciion H
350 SUPREME COURT REPORTS (1990) 1 S.C.R.

A 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 transfer in
favour of a member of a family as Sohrab was living with them. Sohrab
attained the age of 18 only on 25th December, 1951 and as seen from
the other documents he was living with his father and brother till 1968
B when he got married. It is only after he was married the appellant and
Sohrab were occupying different portions of the suit property and
having different mess. In the absence of a document evidencing parti-
tion of the suit house by metes and bounds and on the documentary
evidence showing that the property is held by the appellant and his
brother in equal undivided shares, we are of the view that the plaintiff-
appellant has shown a prima facie case that the dwelling house
c belonged to an undivided family consisting of himself and his brother.

The two brothers, therefore, shall be deemed to be holding the
property as members of an undivided family and in the absence of the
partition by metes and bounds qua this property they shall be deemed
.D to have been holding the dwelling house as an undivided family. Prima
facie, therefore, the transfer by defendants I to 3 would come within
the mischief of second paragraph of section 44 of the Act.

The next question for consideration is whether irreparable injury
would be caused to the appellant whiCh could not be compensated in
B terms of money and whether the balance of convenience is in favour of
the appellant. While section 44 does not give a transferee of a dwelling
house belonging to an undivided family a right to joint possession and
confer a corresponding right on the other members of the family to
deny the right to joint possession to a stranger transferee, section 4 of
the Partition Act gives a right to a member of the family who has not
P transferred his share to purchase the transferee's share on a value to be
fixed in accordance with law when the.transferee filed a suit for parti- /
tion. Both these are valuable rights to the members of the undivided
family whatever may be the object or purpose for which they were
conferred on such members. As we have pointed out in some cases it is
stated that the right to joint possession is denied to a transferee in
G order to prevent a transferee who is an outsider from forcing his way
into a dwelling house in which the other members of his transferee's
family have a right to live. In some other cases giving joint possession
was considered to be illegal and the only right of the stranger pur- )
chaser is to sue for partition. All these considerations in our opinion .
would go only to show that denying an injunction against a transferee
H in such cases would prima facie cause irreparable injury to the other
members of the family.
D.C. WARDEN v. C.S. WARDEN {RAMASWAMI, J.] 351

Mr. Sorabjee the learned counsel for the appellant brought to
A
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 over-reach the
Court by keeping the whole transaction secret and taking possession of B
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 provi-
sions of section 44 of the Act and that he had purchased the property
with the full knowledge of the rights of the other members of the
c
family taking, a complet risk. Clause 6 of the agreement also specifi-
cally provided that:

"In case pending the completion of this sale any suit be filed by
the said co-owner Dorab or other person against the Vendors, or D
any one or more of them, and an injunction (not being an ad
interim injunction) is obtained restraining the Vendors from sel-
ling or disposing of the said property, then the Vendors shall have
the option to keep this sale in abeyance or to cancel and rescind
this agreement. In the latter case, the earnest money will be
returned and the Vendors shall transfer their right, title and E
interest in the said Bangalow property to the purchaser or his
nominee ...... ''

This provision in the agreement clearly show that the fourth
respondent knew that respondents 1 to 3 have only a limited right to
transfer their undivided one half share to a stranger purchaser and F
\ they contemplated litigation in this regard. The said sale was itself
\
hurriedly executed in a hush-hush manner keeping the entire transac-
tion secret from the appellant. The purchasers were also inducted in
the premises in a manner which clearly suggests that the respondents
were attempting to forestall the situation and to gain an undue
advantage in a hurried and clandestine manner defeating the appellant's G
attempt to go to court for appropriate relief. The suit itself was filed on
18th April, 1987 within two days of the sale without any delay. On that
very day the appellant obtained an interim ex parte order in the injunc-
tion application but when it was sought to be executed it was reported
that the 4th respondent had already taken possession and in view of
that the interim order was granted by bracketing the words "remaining H
352 SUPREME COURT REPORTS [1990] 1 S.C.R.

in possession" without giving an effect to it pending further considera-
A
tion of the interim application. By consent of parties a Commissioner
was appointed on 22.4.1987 itself. The report of the Commissioner
showed that not all the articles of Vendors have been removed and the
moveables of the purchasers were also only in the process of being
brought into the house. These facts showed the anxiety of the fourth
B respondent to complete the taking of possession before any order could
be obtained by the appellant from the Court. The learned- counsel also
referred to the affidavit filed by the first respondent wherein she has
still claimed that she is residing 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
c 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 dis-
puted property merely fonhe purpose of establishing his claim and he
did not vacate his earlier permanent residence. On the other hand the
D 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.
E 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 purchaser or to deny
joint possession.
These facts in our view clearly establish that not only a refusal to
grant an interim mandatory injunction will do irreparable injury to the
F
appellant but also balance of convenience is in favour of the appellant
for the grant of such injunction. In the result we allow the appeal, set
)
aside the judgment of the High Court and restore that of the trial
court with costs in this appeal.
We may add that our observations on facts are not to be taken
G as binding at the time of final disposal of the suit after trial. We also
make it clear that if the vendors desire to come attd stay in the portion
of the house which was in their possession earlier, they may indicate it
to the Court and the trial court on such request will pass appropriate_
orders in that regard.

H R.S.S. Appeal allowed.