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IN THE HIGH COURT OF ALLAHABAD
D. K. SETH
SALIM SON OF YASEEN - Appellant
Versus
FIRST ADDITIONAL CIVIL JUDGE, SENIOR DIVISION, SAHARANPUR - Respondents
C. M. W. P. 25694 Of 1995
Decided On : 01/17/1996
TRANSFER OF PROPERTY ACT - SECTION 44 - INJUNCTION - FAMILY DWELLING HOUSE - STRANGER TRANSFEREE - JOINT POSSESSION - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - MANDATORY INJUNCTION: 1. Section 44 of the Transfer of Property Act, 1882, restricts the rights of a transferee of a share in a dwelling house belonging to an undivided family, who is a stranger to the family, to joint possession or other common or part enjoyment of the house. 2. In such cases, the transferee can only enforce his rights by partition. 3. A mandatory injunction can be granted to prevent irreparable injury to the members of the undivided family, who have a right to exclusive possession of the dwelling house. 4. The balance of convenience is in favor of granting an injunction to prevent the transferee from taking possession of the house, as the transferee can still enforce his rights by partition. 5. The transferee's right to joint possession cannot be compensated in terms of money, as it is a valuable right that cannot be easily quantified.
Fact of the Case:
The plaintiff, a co-sharer in a family dwelling house, filed a suit for injunction restraining the other co-sharers from transferring their share in the house to a stranger and from delivering possession to the stranger. The plaintiff also filed an application for mandatory injunction directing the stranger to remove his household articles and vacate the house. The trial court rejected the application for mandatory injunction, but the lower appellate court allowed the application and directed the stranger to vacate the house. The stranger filed a writ petition in the High Court challenging the order of the lower appellate court.
Finding of the Court:
The High Court held that the mandatory injunction was properly granted by the lower appellate court. The court found that the stranger had entered into possession of the house after the suit was instituted and that he had no right to joint possession of the house under Section 44 of the Transfer of Property Act, 1882. The court also found that the balance of convenience was in favor of granting the injunction, as the stranger could still enforce his rights by partition, while the plaintiff would suffer irreparable injury if the injunction was not granted.
Issues: 1. Whether a mandatory injunction can be granted to prevent a stranger transferee from taking possession of a family dwelling house? 2. Whether the balance of convenience is in favor of granting an injunction in such cases?
Ratio Decidendi: 1. A mandatory injunction can be granted to prevent irreparable injury to the members of the undivided family, who have a right to exclusive possession of the dwelling house. 2. The balance of convenience is in favor of granting an injunction to prevent the transferee from taking possession of the house, as the transferee can still enforce his rights by partition.
Final Decision: The High Court dismissed the writ petition and upheld the order of the lower appellate court.
( 1 ) LEAVE is granted on the prayer of Shri B. D. Mandhyan, Learned counsel for the petitioner to correct the cause, title so as to convert the petition into one under Article 227 of the Constitution of India.
( 2 ) FACTS as emerging from this case are that the respondent No. 3 as plaintiff instituted a suit being suit No. 310 of 1990 in the Court of learned Munsif (City) Saharanpur, on 29/09/1990 against the Respondent No. 4 and 5 and the petitioner herein as defendant No. 1, 2 and 3 respectively for injunction restraining the defendant No. 1 and 2 (respondent No. 4 and 5) from transfering their share in the suit property and delivering possession to the defendant No. 3 (petitioner herein) without effecting any partition in respect of the family dwelling house being suit property therein. Admittedly plaintiff and the defendant No. 1 and 2 are co-sharers in respect of the family dwelling house being the suit property and the defendant No. 3 is a stranger.
( 3 ) IN connection with the said case the plaintiff had filed an application for injunction which was tiled alongwith an affidavit on l 9/09/1990 for restraining the defendants No. 1 and 2 from delivering possession to the defendant No. 3. Subsequently respondent had filed another application seeking mandatory injunction directing the defendant No. 3 to remove his house-hold articles and to vacate the house.
( 4 ) THE plaintiffs case inter alia was that without effecting any partition of the family dwelling house being the suit property the defendants No. 1 and 2 are attempting to transfer their share therein in favour of the defendant No. 3 and are attempting to deliver possession to him. After the suit and the application for injunction were filed on l 9/09/1990 the defendants No. 1 and 2 transferred and delivered possession to the defendant No. 3 who had entered into possession.
( 5 ) THE defendant No. 3 contended that there was an agreement for sale of suit property in favour of the defendant No. 3 by defendant No. 1 and 2. The said agreement was registered on 29-5-90 and that possession was delivered to him simultaneously with the execution of the said agreement. It is admitted that the sale deed was executed on 13-1-92 in respect of the share of the defendants No. 1 and 2 in the family dwelling house. The said application for mandatory injunction for removal of the defendant No. 3 from the suit premises was rejected by an order dated 11/08/1994 passed by the learned Munsif (city), Saharanpur. Against the said order an appeal being appeal No. 106 of 1994 was preferred by plaintiff before the District Judge, Saharanpur which was transferred to the Ist Court of Additional Civil Judge, Senior Division, Saharanpur. By an order dated 8/08/1995, the learned Additional Civil Judge, Senior Division, Ist Court allowed the said appeal No. 106 of 1994 and directed the defendant No. 3 to remove his article from the suit premises and to vacate the possession. It is against this order that the present writ petition was sought to be moved under Article 226 of the Constitution of India but however Mr. Mandhyan prayed for leave to amend the petition so as to convert it under Article 227 of the Constitution of India which has already been granted.
( 6 ) SHRI B. D. Mandhyan appearing for the petitioner contended that the main relief that was sought for in the suit was in the form of prohibitory injunction restraining the defendant No. 1 and 2 from effecting transfer of their share in the family dwelling house being the suit property and from delivering possession of their share to defendant No. 3. By reason of the order dated 8/08/1995 directing the defendant No. 3 the petitioner herein to remove his articles and to vacate the suit premises, the Court has virtually granted the relief claimed in the plaint itself. According to him such an order of injunction cannot be granted by way of an inter-locutory order. In support of such contention he had relied upon the case of Bank
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