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SUPREME COURT OF INDIA
L.M. SHARMA AND V. RAMASWAMI, JJ.
Dorab Cawasji Warden, Appellant
Versus
Coomi Sorab Warden and others, Respondents
Civil Appeal No. 2422 of 1988, D/- 13-2-1990.
Advocates appeared :
Mr. Soli J Sorabjee, Sr. Advocate, Mr. R. F. Nariman, Mr.Raian Karanjawala, Ms. Meenakshi Arora, Ms. Nandini Gore and Ms. Manik Karanajawala, Advocates, with him, for Appellant; Mr. Anil Diwan, Mr. Harish N.Salve, Ms.Indu Malhotra, Mrs. Ayesha Karim, Mr. I. R.Joshi, Ms. M. Gandhi and Mr.H.J.Javeri, Advocates with him, for Respondents.
– see decision in the case of Dorah Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 = 1990(1) CCC 611, where it was held that the two brothers 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 to have been holding the dwelling house as an undivided family. Prima facie, therefore, the transfer by defendants 1 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 appellants which could not be compensated in 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 ight to joint possesion to a stranger transferee, Section 4 of the Partition Act gives a right to a member of the family who has not 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 partition. 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 pointed out in some cases it is stated that the right to joint possession is denied to a transferee in 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 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 purchaser is to sue for partition. All these considerations would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family.
– held further: The purchaser has occupied the disputed property merely for the purpose of establishming his claim and he did not vacate his earlier permanent residence. On the other hand the appellant had to leave from the portion of the house where he was living as it was not possible for him to reside there with stranger. The respondents in such circumstances cannot be permitted to take advantage to their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under Section 44 of the Transfer of Property Act no longer survived in view of their taking possession. In such circumstances it is but just necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellants rights to compel the purchaser or to deny joint possession.
These facts 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.
- see decision in the case of Dorah Cawasji Warden v. Coomi Sorah Warden, AIR 1990 SC 867 = 1990(1) CCC 611, where it was held that the relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the Status qua of the last non–contested status which preceeded 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 for the restoration of that which was wrongfully taken from the party complaining it. But 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 alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case of trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or seasons injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
– being essentially and equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre–requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.
– see decision in the case of Dorah Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 = 1990(1) CCC 611, where it was held that “if in this state of things, a member of the family transfers 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 possession 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 intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share there in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co–ownership of the property should be kept out. 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 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 kept 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 purchaser is actually one of partition. Until then, he is obliged to kept out from asserting joint possession.”
– see decision in the case of Dorah Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 = 1990(1) CCC 611, where it was held that 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 complementary to each other and the terms “undivided family” and “dwelling house” have the same meaning in both the sections.
The paragraphs of the judgement that state that final relief cannot be granted in interim relief are primarily those that emphasize the exceptional nature of granting relief that effectively awards the final outcome. Specifically, the judgement notes that such interim mandatory injunctions, which substantially alter the status quo or grant the final relief sought, are granted only in exceptional circumstances due to the high risk of injustice involved (!) .
The Court finally held that interim mandatory injunctions of a final or substantial nature are extraordinary remedies that should only be granted when the applicant demonstrates a clear, strong case, and irreparable harm is likely to occur if the relief is not granted. The Court emphasized that the discretion to grant such relief must be exercised cautiously, ensuring that the applicant’s case is sufficiently probable and that the balance of convenience favors granting the injunction. Ultimately, the Court reaffirmed that such relief should be granted only in exceptional cases, to prevent injustice and preserve the status quo until the final hearing (!) (!) (!) .
Judgment
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 the suit restraining defendants 1 to 3 from parting with possession and defendants 4 and 5 from entering into or taking possession and/or remaining in possession or enjoyment of the suit property, namely, Dorab Vila, 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.
* Reported in (1989) 1 Bom CR 99
2. 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 appears that the superstructure on the land was constructed subsequent to the purchase. At the time when the property was purchased the appellant was a minor. By a registered deed of declaration the appellant (sic) made a declaration that the appellant has an undivided share in the said piece of land and the building erected thereon as joint tenants with the declarants, and that in the event of the appellants surviving the declarations, he shall by virtue of the said joint tenancy and his survival becomes solely and beneficially entitled to the said piece of land and the building thereon. However, this deed reserved a right to either or both the declarants and the appellant from serving the joint tenancy at any time. On the death of Banubai on 9th June, 1945 the appellant and his father as surviving 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 undivided share in the property and each share become a separate stock of descent. On 16th April, 1952, the appellants father transferred his undivided half share in the suit property in favour of his another son by name Sohrab, Warden in consideration of the said Sohrab releasing in favour of his father his undivided share in some other property 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.
3. Sohrab died intestate on 12th October, 1976 leaving behind him his widow the first respondent and his two minor sons the second and third respondents in this appeal. Respondents 1 to 3 sold their undivided 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 of April, 1987 praying for a decree directing (restraining) respondents 1, 2 and 3 from parting with possession of the said property or any part thereof and/or inducting any third party including respondent 4 into the said property or any part or portion thereof, and for further directions against respondents 4 and 5 from entering Into or taking 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 purchased the property but it is now accepted that he is not one of the purchasers and the property was purchased by the fourth respondents and his wife. Pending the suit the appellant prayed for an interim injunction restraining the respondents 1 to 3 from parting with possession of the said property or any part thereof and/ or inducting the fourth respondent into the suit property or any part or portion thereof and a similar injunction restraining the fourth respondent from entering into or taking po
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