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PETITIONER: DORAB CAWASJI WARDEN

       Vs.

RESPONDENT: COOMI SORAB WARDEN & ORS.

DATE OF JUDGMENT13/02/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR  867            1990 SCR  (1) 332  1990 SCC  (2) 117        JT 1990 (1)   199  1990 SCALE  (1)166

ACT:     Transfer  of Property Act: Section 44--Grant of  interim mandatory injunction in suit--Court to keep in mind restric- tion on right of transferee to joint possession.

HEADNOTE:     The appellant along with his father and mother, were the joint  owners of the suit property. After the death  of  the appellant’s mother, he and his father executed an  agreement dated  23rd August, 1951 by which they severed their  status as  joint owners and agreed to hold the property as  tenants in common. On 16th April, 1952 the appellant’s father trans- ferred  his  undivided half share in the  suit  property  in favour  of his another son Sohrab. 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.     After  Sohrab’s death, his widow, the first  respondent, and  his minor sons, the second and third respondents,  sold on  16th April, 1987 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  had  no right  to have joint possession or common 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  inter- im/perpetual  injunction restraining respondents 1, 2 and  3 from  parting with possession of the suit property. He  fur- ther claimed that if the said relief was not granted irrepa- rable  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 report- ed that the 4th respondent had already taken possession. 333     The  suit and the notice of motion were resisted on  the

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grounds  that the appellant and respondents 1, 2 and 3  were owners  of the property in equal moity but the property  was not joint family property or property belonging to an  undi- vided 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 of that portion of the property. It was  further  contended that the  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 same by metes and bounds;  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; that the case would fail 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 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.     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  sever- ance 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  injunc- tion  will  have the effect of virtually 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 injunction  was not granted or that the balance  of  conven- ience  was in his favour. In that view, the  learned  Single Judge  allowed the appeal and set aside the  order  granting the injunction.     Before this Court it was also contended on behalf of the appellant 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  para- graph  of  section 44 of the Transfer of Property  Act,  and having purchased with such full knowledge he tried to  over- reach 334 the Court by keeping the whole transaction secret and taking possession  Of the property purchased before  the  appellant could get legal redress from the Court. Allowing the appeal, this Court,     HELD:  (1) The courts can grant interlocutory  mandatory injunction in certain special circumstances. [340E]     (2) The relief of interlocutory mandatory injunction  is 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.  But since the granting or non-granting of such  an injunction may cause great injustice or irreparable harm  to one  of the parties, the Courts have evolved certain  guide- lines. [343F-H]     (3) Generally stated, the guidelines are: (1) The plain- tiff has a strong case for trial. That is, it shall be of  a

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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; (3) The balance  of convenience  is  in favour of the one seeking  such  relief. [344A-B]     Shepherd  Homes  Ltd. v. Sandham, [1970] 3 All  ER  402; Evans Marcgall & Co. Ltd. . Bertola 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) Bom. 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; Israil v. Shamser Rahman, ILR 1914 (41) Cal. 436 and  Nandan 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 judicial  discretion  of  the Court to be exercised in the light of the facts and  circum- stances in each case. [344C]     (5)  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. [344D] 335     (6) In order to attract the second paragraph of  section 44  of the Act the subject-matter of the transfer has to  be dwelling  house  belonging 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] ILR 30  All 324; Khirode Chandra Ghoshal & Anr. v. Saroda Prasad  Mitra, [1910] 7 IC 436; Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539;  Sivaramayya v.  Benkata  Subbamma, 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 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. [349B]     (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]     (9)  In the absence of a documents evidencing  partition 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,  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 1  to 3  would  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 1 to 3  had only  a limited right to transfer their undivided  one  half share to a stranger purchaser and they comtemplated  litiga- tion  in  this regard. The said sale  was  itself  hurriedly executed  in a hush-hush manner keeping the entire  transac-

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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 situa- tion and to gain an undue advantage in hurried and  clandes- tine manner defeating the appellant’s attempt to go 336 to  court  for appropriate relief. 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. [351 F; 352D-E]     (11)  The  facts in the instant case  clearly  establish that  not only a refusal to grant an interim  mandatory  in- junction  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]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2422  of 1989.     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. 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 Respondents. The Judgment of the Court was delivered by     V.  RAMASAMI,  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 Villa, 29, Perry Cross Road, Bandra, Bombay, or any part  or portion thereof. The appellant is the plaintiff and  defend- ants 1 to 5 are respondents 1 to 5.     The appellant is the owner of an undivided half share in the suit property. The suit property was purchased original- ly 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 super-structure  on the land was constructed  subsequent  to the purchase. At the time when the property was purchased 337 the appellant was a minor. By a registered deed of  declara- tion  that the appellant made a declaration that the  appel- lant  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 appellant’s surviv- ing  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 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 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

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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 appellant’s father  trans- ferred  his  undivided haft share in the  suit  property  in favour of his another son by name Sohrab Warden in cansider- ation  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.     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.  Re- spondents 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  April,  1987 praying  for a decree directing respondents 1, 2 and 3  from parting  with  possession of the said property or  any  part thereof and/or inducting any third party including  respond- ent 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 respondent and his wife. Pending the suit the  appel- lant  prayed for an interim injunction restraining  the  re- spondents  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 possession and/or 338 remaining in possession or enjoyment of the suit property or part thereof.     The suit was filed on the ground that the suit  property is  a dwelling 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 deceased  brother  Sohrab during his fife time were for convenience occupying  differ- ent 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 with the 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  fur- ther  claimed  that pending the suit he is  entitled  to  an interim relief as prayed for and that if the said relief  is not  granted  irreparable loss and great prejudice  will  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 contended that though the appellant and respond-

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ents 1, 2 and 3 were owning the property in equal moity they were  holding  it in their individual capacity  and  not  as members  of joint family and that the suit property  is  not joint family property or property belonging to an  undivided family.  The  further case of the defendant was  that  since 1968  when Sohrab got married the appellant and ’his  family had  been in exclusive occupation of the upper floor of  the Bungalow  and a garage while the entire ground floor of  the building of the said property and 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 electricity  and  water  meters and that  they  were  paying proportionate  taxes.  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.  1n  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 had taken possession  of that portion of the property which was in 339 occupation  of respondents 1 to 3 in pursuance of  the  sale deed.  The further contention was that it is not the  appel- lant  who would suffer 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 that the suit property is dwelling house  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 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,  there- fore, respondent 4 and his wife as strangers were not  enti- tled to joint possession of the said family dwelling house.     Since the defendant had claimed 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  or  portion thereof.  However, the learned Judge ordered that  this  in- junction  order would not prevent the fourth  respondent  to occasionally 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 prims facie the  facts indicate that throughout the parties  have  lived separately,  that  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 has not made  out  a  prima facie  case  that  the plaintiff  would  suffer  irreparable

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damage, if any injunction is not granted or that the balance of  convenience is in 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 penden- cy of the suit the fourth respondent and his wife shall  not make any permanent alterations in the suit 340 premises  nor shall they induct any third party,  or  create any third party 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 can continue  to  be  in possession  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 belonging  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  on the basis that the purchaser was inducted in the  possession of  the disputed portion of the house even by the  time  the Commissioner visited the place. We, therefore, hold that the purchasers have occupied the disputed portion and the  ques- tion, therefore, for consideration is whether the  appellant is entitled to the injunction in a 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  posses- sion. There could be no doubt that the courts can grant such interlocutory  mandatory injunction in certain special  cir- cumstances. 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: "(iii)  On motion, as contrasted with the trial,  the  court was 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 stand- ard than was required for a prohibitory injunction."     In Evans Marshall & Co. Ltd. v. Bertola SA, [1973] 1 All ER 992 the Court of Appeal held that: "Although  the failure of a plaintiff to show that he had  a reasonable prospect of obtaining a permanent injunction at 341 the  trial was a factor which would normally  weigh  heavily 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. Cannon  Film  Sales Ltd., [1986] 3 AIIER  772  Hoffmann,  J. observed in that case: "But  I  think it is important in this area  to  distinguish between  fundamental principles and what are  sometimes  de- scribed  as ’guidelines’, i.e. useful generalisations  about the way to deal with the normal run of cases falling  within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or  manda- tory,  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  alterna-

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tively,  in  failing to grant an injunction to a  party  who succeeds (or would succeed) at trial. A fundamental  princi- ple is therefore that the court should take whichever course appears  to carry the lower risk of injustice if  it  should turn out to have been ’wrong’ in the sense I have described. The guidelines for the grant of both kinds of  interlocutory injunctions are derived from this principle." 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- tion.  The second point is that in cases in which there  can be  no  dispute  about the use of the  term  ’mandatory’  to describe the injunction, the same question of substance will determine whether the case is ’normal’ and therefore  within the  guideline  or  ’exceptional’  and  therefore  requiring special  treatment. If it appears to the court that,  excep- 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 of assurance’ about the  plain- tiff’s  chances of establishing his right, there  cannot  be any rational basis for withholding the injunction." 342 and concluded that: "These considerations lead me to conclude that the Court  of Appeal in Locabail International Finance Ltd. v.  Agroexpon, [1986] 1 All ER 901 at 906, (1986) 1 WLR 657 at 664 was  not intending  to ’fetter the court’s discretion by laying  down any rules which would have the effect of limiting the flexi- bility of the remedy’, to quote Lord Diplock in the Cyanamid case (1975) 1 All ER 504 at 510, (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  Resources  plc, [1984] 1 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 1 to he applied in granting  mandatory  injunc- tions on interlocutory applications in 24 Halsbury’s Laws of England (4th Edn.) para 948 it is stated: "A  mandatory injunction can be granted on an  interlocutory application  as well as at the hearing, but, in the  absence of  special circumstances, it will not normally be  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 injunction is  about to  be  applied for, the defendant hurries on  the  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 American Jurisprudence 22 Edn. page 745 etc.     As  far the cases decided in India we may note the  fol- lowing cases.     In  one of the earliest cases in Rasul Karim &  Anr.  v. Pirubhai  Amirbhai, ILR 1914 38 Bom. 381, Beaman, J. was  of the view that the 343 court’s in India have no power to issue a temporary  injunc- tion  in  a mandatory form but Shah, J.  who  constituted  a

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Bench  in  that case did not agree with Beaman, J.  in  this view. However, in a later Division Bench judgment in  Champ- sey  Bhimji  & Co. v. The Jamna Flour Mills  Co.  Ltd.,  ILR 191416 Bom. 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.  Kandas- wami  Chetty V.P. Subramania Chetty, ILR 191841 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 191441 Cal.  436, it  was held that the High Court was competent to  issue  an 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- 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  main- tained. While accepting that it is not possible to say  that in no circumstances will the Courts in India have any juris- diction  to  issue an ad interim injunction of  a  mandatory character,  in Nandan 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 establish a  new  state  of things  differing from the state which existed at  the  date when the suit was instituted.     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 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 injus- tice or irreparable harm, courts have evolved certain  guid- lines. Generally stated these guidelines are: 344 (1)  The plaintiff has a strong case for trail. 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 serious 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  an  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  circum- stances  in each case. Though the above guidelines are  nei- ther exhaustive or complete or absolute rules, and there may be  exceptional circumstances needing action, applying  them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.

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   The  suit is one filed under section 44 of the  Transfer of  Property 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  trans- feree  to joint possession under that section.  The  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  trans- feree acquires, as to such share or interest, and so far  as is  necessary to give effect to the transfer, the  transfer- or’s  right  to  joint possession or other  common  or  part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liability affecting, at the date of the transfer, the share or interest so trans- ferred. Where the transferee of a share of a dwelling-house  belong- ing  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." In order to attract the second paragraph of this section the 345 subject-matter  of the transfer has to be a  dwelling  house belonging to 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 infringement, 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 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  trans- feree  for joint possession and the dominant purpose 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 interference  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  mis- chief  or inconvenience which is likely to issue from  with- holding  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.     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  ’dwell- ing  house  belonging  to an undivided  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 decided  by  the Full Bench of the Allahabad High  Court  in Sultan  Begam  and Ors. v. Debi Prasad, [1908] ILR  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 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  shareholder.

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The  argument was that the words ’undivided family’ as  used in  the  section  mean a joint family and  are  confined  to Hindus or to 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  Bench observed: 346 "... in it (section 4 of the Partition Act) we find  nothing to  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 prescribes that where the transferee of a share of a  dwell- ing  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 compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family,  to enforce  his  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 narrator meaning than they have in section 44 of  the Transfer  of Property Act. If the Legislature intended  that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For  example,  instead of the words ’undivided  family’  the expression ’undivided Hindu family’ or ’joint family’  might have been used. 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 family who is an outsider from forcing his way into a dwell- ing 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’."     Again  in  construing the word "family"  and  ’undivided family’  a  Division  bench of the Calcutta  High  Court  in Khirode  Chandra  Ghoshal  & Anr. v.  Saroda  Prosad  Mitra, [1910] 7 IC 436 observed: "The  word ’family’, as used in the Partition Act, ought  to be given a liberal and comprehensive meaning, and it does 347 include a group of persons related in blood, who live in one 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  re- stricted  sense,  namely, a body of persons  who  can  trace their descent from a common ancestor."     The decision in Nil Kamal Bhattacharjya & Anr. v. Kamak- shya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539  related to  a case of a group of persons who were not the  male  de- scendants 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 ancestor. The

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learned  Judge  applied the principle enunciated  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 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 10  who  were  the appellants  before the High Court. The suit was filed for  a permanent  injunction restraining defendants 7 and  10  from jointly  possessing the disputed house alongwith the  plain- tiff and defendant 2. The facts as found by the courts  were that by an amicable arrangement among plaintiff and  defend- ants  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  separate  interest  as well as his  separate  house  in favour of the alienees and in pursuance thereof the alienees were put in 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 of things, a member of the family  trans- fers 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 348 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 therein  in favour  of  a  stranger. The factual position  as  has  been determined is that the property is still an undivided dwell- ing 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." On  the question whether the enjoyment of ascertained  sepa- rate  portions of the common dwelling house and the  alienee taking  possession  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 in  the dwelling house, 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  in- junction where the transferee threatens to get possession by force. If there had been a finding that there was  severance of  joint status but no partition by metes and  bounds,  de- fendant  1  was liable to be evicted  from  the  residential houses and Bari under section 44 of the T.P. Act." The learned Judge further held:        The last contention of Mr. Pal is that the  plaintiff sued for injunction only. The learned trial judge,  however, has decreed ejectment of the transferee defendants and  that

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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 stranger purchas- ers  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 purchas- er  is actually one of partition. Until then, he is  obliged to keep 349 out from asserting joint possession."     We may respectfully state that this is a correct  state- ment  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 complementary  to  each other and the terms "undivided family" and "dwelling  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 share separately so as  to enable him to dispose of the same in a manner he chooses 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  hence- forth they were holding the said piece of land 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 reference to the property and that,  therefore, there  shall be deemed to have been a partition between  the appellant and his father. In support 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 appel- lant’s  family and Sohrab’s family were occupying  different portions  of the suit property and enjoying the same  exclu- sively.  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 considering section  44;  but what  is relevant for the purpose of these  proceedings  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 section 44 of  the Act.     We had also noticed earlier that Cawasji, the father  of the  appellant transferred his undivided half share  in  the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for consideration whether this transaction is covered by section 350 44  of  the Act and whether after the transfer,  the  appel- lant’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

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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  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 partition 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 belonged to an undivided family  consist- ing 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 to have  been  holding  the dwelling  house as an undivided family. Prima facie,  there- fore,  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 irrepara- ble injury would be caused to the appellant 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 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 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 we have 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’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 purchaser is to sue for partition. All these considerations  in  our opinion 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. 351     Mr.  Sorabjee  the  learned counsel  for  the  appellant brought to 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  para- graph  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  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 clear- ly  show that the fourth respondent was fully aware  of  the provisions  of  section 44 of the Act and that he  had  pur- chased the property with the full knowledge of the rights of the  other  members of the family taking, a  complete  risk. Clause 6 of the agreement also specifically provided that:

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"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 any one or more of them, and an injunction  (not being an ad interim injunction) is obtained restraining  the Vendors from selling 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  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 they contemplated  litigation  in this regard. The said sale was itself hurriedly executed  in a  hush-hush  manner keeping the entire  transaction  secret from the appellant. The purchasers were also inducted in the premises  in  a manner which clearly suggests that  the  re- spondents were attempting to forestall the situation and  to gain an undue advantage in a hurried and clandestine  manner defeating the appellant’s attempt to go to court for  appro- priate 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 exparte order in  the injunction 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 352 in  possession" without giving an effect to it pending  fur- ther consideration 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 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 therein  which  also show  that the fourth respondent is residing and  having  an office  in some other places also other then the suit  prem- ises.  These  evidences go to show that  the  purchaser  has occupied  the  disputed property merely for the  purpose  of establishing  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 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. In such circum- stances 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

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irreparable  injury  to the appellant but  also  balance  of convenience is in favour of the appellant fox, 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  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 and 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  appro- priate orders in that regard. R.S.S.                                       Appeal allowed. 353