ivil Appeal No 2422 of 1989
From the Judgment and Order dated 391988 of the Bombay High Court in Appeal from Order No 707 of 1987
Soli J Sorabjee RF 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 IR Joshi M Gandhi and HJ 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 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 andor 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 andor 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 andor 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 andor 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 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 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 vs Sandham  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 vs Bertola SA 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
vs 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  ie 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 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 vs Agroexpon at 906 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  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 vs Global Natural Resources plc  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
vs Pirubhai Amirbhai ILR  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 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 vs 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 VP 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 vs Jamna Flour Mills Co supra
In Israil vs 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 vs 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
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
vs Debi Prasad 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
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 vs 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
vs Saroda Prosad Mitra 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
vs Kamak shya Charan Bhattacharjya  Anr 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 learned Judge applied the principle enunciated in Sultan Begam vs 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 vs Venkata Subbamma  Ors AIR 1930 Madras 561
The next decision to be noted is the one reported in Bhim Singh vs 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 13 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 vs 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 TP 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 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 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 21121986 and the sale deed 1641987 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 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 2241987 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 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
RSS Appeal allowed


Summary:
The appellants were arrested for offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act 1988
They were remanded to judicial custody till October 13 1988
On October 11 1988 orders were passed under Section 31 of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 for the detention of the appellants on the ground that with a view to preventing the appellants from engaging in the transportation and abetting in the export inter state of Psychotropic Substances it was necessary to detain them and to keep in custody
The orders were served on them on Octo ber 13 1988 while in custody
The High Court dismissed the Writ Petitions filed on behalf of the appellants challeng ing the legality of their detention
In the Special Leave Petitions filed in this Court it was contended that since the appellants were in custody on October 11 1988 the date of passing of the detention order there was no apprehension that the appellants would be engaging in any prejudicial activity and the detention order could not be validly passed
On behalf of the respondents it was contended that the detention order was validly passed on October 11 1988 since the appellants had been remanded to judicial custody upto October 13 1988 only and the detaining authority could have apprehended that the remand may not be extended beyond that date and the appellants may be released from custody and would be free thereafter to engage in prejudicial activ ities
Allowing the appeals this Court passed an order on January 11 1990 setting aside the detention order and directing the release of the appellants
304 Giving reasons for its order this Court HELD An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that i the detaining authority was aware of the fact that the detenu is already in detention and ii there were compel ling reasons justifying such detention despite the fact that the detenu is already in detention
The expression compel ling reasons in the context of making an order for deten tion of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that a the detenu is likely to be released from custody in the near future and b taking into account the nature of the antecedent activi ties of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engag ing in such activities
313C E Rameshwar Shaw vs District Magistrate Burdwan  Anr   Masood Alam Etc
vs Union of India and Others   Dulal Roy vs District Magistrate Burdwan   Vijay Kumar vs State of Jammu  Kashmir and Others   Alijan Mian vs District Magistrate Dhanbad and Others 1983 4 SCC 301 Ramesh Yadav vs District Magistrate Etah and Others  Suraj Pal Sahu vs State of Maharashtra  Others   Binod Singh vs District Magistrate Dhanbad Bihar and Others   Smt
Shashi Aggarwal vs State of U P  Others   Vijay Kumar vs Union of India  and N Meera Rani vs Government of Tamil Nadu  Another   referred to
In the instant case the detaining authority was aware of the fact that the appellants were in custody on the date of the passing of the order of detention
Though the fact that the appellants have been remanded to judicial custody till October 13 1988 has been mentioned the grounds of detention do not show that the detaining authority appre hended that further remand would not be granted by the Magistrate on October 13 1988 and the appellants would be released from custody on October 13 1988
Nor is there any material in the grounds which may lend support to such an apprehension
On the other hand the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of detention order on October 11 1988
The grounds disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the 305 provisions of the Narcotic Drugs and Psychotropic Substances Act 1988
It cannot therefore be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13 1988 and their being released from custody at the time when the order for preven tive detention was passed on October 11 1988
313F 314C E In such circumstances the order for detention of the appellants cannot be sustained
314F