Back
1981 Supreme(Cal) 209
High Court Of Calcutta
RAMENDRA MOHAN DATTA, C. K. BANERJEE
SHIB NATH PAUL - Appellant
Versus
JAHARLAL PAUL - Respondent
Appeal Nil Of 1981
Decided On : 06/16/1981
Jayanta Mitra, P.C.Sen, SWAPAN MALLICK
A co-sharer in a dwelling house belonging to an undivided family has the right to transfer his share, but the transferee is not entitled to joint possession or other common or part enjoyment of the house.
Headnote:
TRANSFER OF PROPERTY ACT, 1882 - SECTION 44 - SHARE OF A DWELLING HOUSE BELONGING TO AN UNDIVIDED FAMILY - INJUNCTION AGAINST TRANSFEROR TO PREVENT PURCHASER FROM TAKING POSSESSION - SUBSEQUENT TRANSFER - APPLICABILITY OF SECTION 44 - RES JUDICATA - ORDER GRANTING LEAVE TO SELL UPON FURNISHING SECURITY - WHETHER BARS INJUNCTION.
Fact of the Case:
Appellant, Shibnath, filed an interlocutory application in a suit filed by Jahar, respondent No. 1, seeking an injunction to restrain Jahar and his agents from parting with possession of a vacant portion of premises No. 203/4c, Bidhan Sarani, Calcutta, to Sm. Monika Ghose or any stranger to the family. The property in dispute was divided into four lots through an Award, and a decree was passed in terms of the Award. Jahar was allotted lot B, which was numbered as 203/4c, Bidhan Sarani. Lot C was sold in execution of a decree to Subal Chandra Pan and others, strangers to the family. Shibnath claimed absolute ownership of lot D and filed a suit against Jahar. The Appeal Court allowed Jahar to sell lot B upon furnishing a Bank guarantee to secure Shibnath's claim. Jahar filed a suit for a declaration of exclusive ownership of lot B and an injunction restraining Ananda and Shibnath from obstructing enforcement of the Award. Shibnath made an application in the suit for an injunction restraining Jahar from parting with possession of lot B to Sm. Monika Ghose. The application was dismissed by the Court below.
Finding of the Court:
The Court held that there was no bar in a co-sharer transferring his share in a property belonging to an undivided family and that Jahar was lawfully entitled to transfer his share in the property. The Court further held that the order of the Appeal Court granting leave to Jahar to sell lot B upon furnishing security did not operate as res judicata. The Court also held that the substantial questions in the appeal were whether the Court would take note of the subsequent transfer by Jahar to Monika Ghose and grant relief accordingly, and whether there had been such partition and separation of the joint property as to take it out of the mischief of Section 44 of the Transfer of Property Act.
Issues: 1. Whether Section 44 of the Transfer of Property Act, 1882, applies to a transfer of a share in a dwelling house belonging to an undivided family. 2. Whether an injunction can be granted against the transferor to prevent the purchaser from taking possession. 3. Whether a subsequent transfer affects the applicability of Section 44. 4. Whether an order granting leave to sell upon furnishing security bars an injunction.
Ratio Decidendi: The Court held that Section 44 of the Transfer of Property Act recognizes the right of a co-sharer to transfer a share of the property and that there is no legal bar on such transfer. The Court further held that the remedy of the appellant, if any, is against the transferee and not against the transferor. The Court also held that the subsequent transfer by Jahar to Monika Ghose did not affect the applicability of Section 44, as the section applies to a transfer of a share in a dwelling house belonging to an undivided family, irrespective of whether the transfer has been completed or not. The Court further held that the order of the Appeal Court granting leave to Jahar to sell lot B upon furnishing security did not operate as res judicata, as the order was not a final decision on the merits of the case.
Final Decision: The Court granted an injunction restraining Jahar, his servants, and agents from parting with possession of the vacant portion of premises No. 203/4c, Bidhan Sarani, Calcutta, to Sm. Monika Ghose until the disposal of the appeal.
( 1 ) IN this interlocutory application the appellant is asking, inter alia, for an injunction restraining the respondent No. 1, his servants, agents and assistants from parting with possession of the vacant portion of Lot 'b' of premises No. 203/4c, Bidhan Sarani, Calcutta, to Sm. Monika Ghose or to any other stranger to the family.
( 2 ) THE short facts relating to the property in dispute may be briefly stated. By an Award dated 12th April, 1949 Mr. Hem Chandra Majumder, Barrister-at-law, divided the original premises No. 203/4, Cornwallis Street (now Bidhan Sarani) into four lots being lots A, B, C and D. Lot A was allotted to Ananda the respondent No. 2, Lot B was allotted to Jahar the respondent No. 1, Lot C was allotted to Manick and Lot D was allotted to Sushila Bala the mother. A decree was passed thereafter in terms of the said Award. The said lots were subsequently separately numbered by the Corporation of Calcutta whereby Lot A was numbered as 203/4b, lot B as 203/4c, lot C as 203/4d and lot D as 203/4a Bidhan Sarani. Lot C allotted to Manick and numbered as 203/4d, Bidhan Sarani was sold in execution of a decree some time in 1960 to Subal Chandra Pan and others strangers to the Paul family who are residing and enjoying the same exclusively,
( 3 ) BY a Deed of Settlement Sushila Bala gave away lot D being No. 203/4a, Bidhan Sarani to Manik's son Shibnath through the medium of a Trust of which Jahar was appointed the Trustee. Sushila Bala died, on or about 7th Nov. , 1977,
( 4 ) SHIBNATH filed a suit in this Court being Suit No. 701, of 1979 against Jahar claiming absolute ownership of 203/4a Bidhan Sarani and also for a decree for a large sum. An application made by Shibnath in the said Suit was decided against Jahar and on an appeal therefrom by Jahar, the appeal was disposed of by an order dated the 5th Dec. , 1980 made by the Appeal Court allowing Jahar to sell No. 203/40, Bidhan Sarani being the lot B allotted to him upon his furnishing Bank guarantee for a sum of Rs. 20. . 000. 00 to secure the claim of Shibnath.
( 5 ) THE suit herein out of which this appeal arises, was filed by Jahar, inter alia, for a declaration that he was the exclusive owner of premises No. 203/4c Bidhan Sarani, injunction restraining Ananda and Shibnath from obstructing enforcement of the said Award by construction of partition walls and for a declaration that he has a right of passage through premises No. 203/4a, Bidhan Sarani,
( 6 ) IT may be noted that in the said Award a plan was annexed demarcating each lot; but there was no separation of the lots by raising boundary walls and by constructing separate stair cases, privies, etc. , except for 203/4d, Bidhan Sarani which was purchased by Subal Chandra Pan and others and separated by metes and bounds by raising boundary walls to make it separate from the rest of the dwelling house,
( 7 ) ON or about 5th Jan. , 1981 Shibnath made an application in the said suit of Jahar out of which this present appeal arises, inter alia, for an injunction restraining Jahar, his servants and agents from parting with possession or vacating premises No. 203/4c, Bidhan Sarani to Sm. Monika Ghose or her servants or agents or to any other stranger who is stranger to the Paul family, it was urged on behalf of Shibnath in the Court below that the said application was made under Section 44 of the Transfer of Property Act, The said application was disposed of by the Court below on the 20th Feb. 1981 by making no order on the said application, The present appeal was filed by Shibnath against the said order.
( 8 ) SINCE then on or about 12th Mar. , 1981 Jahar sold the premises No. 203/4c, Bidhan Sarani to Sm. Monika Ghose.
( 9 ) MR. Jayanta Mitra appearing for the appellant Shibnath submitted that the said application in the Court below was made under Section 44 of the T. P. Act, Alternatively, it was in the nature of a quia timet action for an injunction against a threatened injury, namely,
