Gujarat High Court
Mahipatsinh Himatsinh Jadeja vs Pannalal Khemchand Modi And Ors. on 9 December, 1996
Equivalent citations: (1998)1GLR398
JUDGMENT S.D. Shah, J.
1. This group of Appeals From Order under Order 43 Rule l(r) of the C.P. Code are preferred by original defendant No. 1-Mahipatsinh Himatsinh Jadeja in the first four Appeals and Dilip Jayantilal Modi in the last Appeal respectively, against common judgment and order dated 20th June, 1995 passed by learned City Civil Judge below Exhs. 5, 21, 34 and 42 filed in Civil Suit No. 941 of 1991 and 1250 of 1991. The first four Appeals along with C.A. Nos. 2731 to 2734 and 3954 of 1995 were placed for preliminary admissional hearing before the learned single Judge of this Court on 27th June, 1995, who was pleased to admit the said four Appeals and on Civil Applications for stay, ad interim relief as prayed for was granted and this Court admitted A. 0. No. 415 of 1995 and the learned Counsel for the respondents waived service of admission. The matters were thereafter notified before the very learned single Judge for hearing of ad interim relief in the month of August and September, 1995 and thereafter the same were notified before this Court and since hearing and granting of and/or refusing of interim relief was likely to consume time equivalent to hearing of the group of appeals, with the consent of the learned Advocates appearing for the parties and the parties respectively, the said group was fixed for final hearing on 13th October, 1995. On that very day, Mr. M. B. Gandhi, learned Advocate appearing for the appellant in A. 0. No. 415 of 1995 also mentioned that he has also filed Appeal From Order challenging the very common order and that the same should be circulated and heard with the aforesaid four Appeals From Order.
Accordingly, on 13th October, 1995, the said Appeal From Order was also ordered to be admitted and the respective Advocates appearing for the respondents waived notice of admission and with the consent of the learned Advocates appearing for the parties, the said Appeal From Order was also heard along with this group of Appeals.
2. All the Advocates appearing for the parties agreed that since common judgment and order passed by the learned City Civil Court Judge below four exhibits in the aforesaid two suits are under challenge and since on common facts, common questions of law arise for consideration of this Court, the Appeals should be heard together and decided by common judgment and order and accordingly the hearing of the Appeals commenced on 13th October, 1995. It may be stated that at the request of the learned Advocates appearing for the parties, for their convenience, the final hearing was intercepted and adjourned from time to time and for a longer period on one occasion at the request of Mr. K.V. Shelat for his personal reasons. The hearing of the said five Appeals concluded somewhere in the month of April 1996 and the judgment was kept C.A.V. and by this common judgment and order, these five Appeals are being decided and disposed of.
3. The common question of law which is very seriously raised and agitated by all the learned Counsels appearing for the parties revolved round interpretation of Section 44 of the Transfer of Property Act, 1882 and more particularly second para of said Section 44 and its applicability to the fact situation obtaining before this Court in this proceeding. It must be stated at the outset that respondent No. 1 original plaintiff and respondent Nos. 3 and 4 (original defendant Nos. 3 and 4) support the common judgment and order passed by the learned City Civil Court Judge based on the decision of the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden, the intendment, scope, nature and extent of applicability of second para of Section 44 of the Transfer of Property Act. The appellant (original defendant No. 1) and Dilip Jayantilal Modi original defendant No. 2 have challenged the order mainly on the ground that in the fact situation obtaining before this Court, the aforesaid decision of the Apex Court in the case of Dorab Cawasji Warden (supra) has no application whatsoever and that none of the ingredients of second para of Section 44 are satisfied in these Appeals and hence the common order passed by the trial Court deserves to be quashed and set aside more particularly the order passed below Exhibit 42. It is that part of the order which is passed below Exhibit 42, which is in the mandatory nature which has aggrieved the appellant Mahipatsinh Himatsinh Jadeja the most while the challenge to the order below Exhibits 5, 21 and 34 is half-hearted or to be more precise, not very vehemently and seriously challenged and agitated before this Court. This Court must at once add that it cannot be stated that the challenge was given up. But, no serious arguments were advanced against order passed below Exhibits 5, 21 and 34.
4. In order to decide the aforesaid question of interpretation of and applicability of second para of Section 44 of the Transfer of Property Act to the fact situation obtaining in the present appeals more particularly in the light of the decision of the Apex Court in the case of Dorab Cawasji Warden (supra), it would be essential for this Court to set out the factual matrix of the case in brief chronology.
5 Factual Matrix:
(i) One Late Shri Khemchand Premchand Modi, acquired during his life-time an immovable property from his own self-acquired funds by becoming member of a Registered Society being Swastik Co-operative Housing Society Limited, Ahmedabad and on payment of the price of the share certificates, share numbers 41 to 50 of the value of Rs. 50/- each were issued to him on 30th June, 1939. The said Society was registered under the provisions of the Bombay Cooperative Societies Act, 1925 and one composite share certificate was issued to him. The Society was the "Tenant Ownership Society" as is clear from the byelaws of the Society. It is well known and admitted position by both the parties that in a Tenant Ownership Society, Society is the owner of the land and continues to be so, while the Occupancy Rights over such land are given to members. It is also stipulated in the Bye-law No. 66 that no member shall be tenant of the Society unless he holds at least ten shares. Accordingly, Late Premchand Modi by becoming tenant member of the aforesaid Society acquired a share certificate comprising of ten shares.
(ii) Admittedly, he thereafter, from out of his own self-acquired funds, constructed a bungalow on the plot of land allotted to him as Tenant being No. A/5, Swastik Society, Navrangpura, Ahmedabad - 380 009.
(iii) Admittedly, he expired on 21st July, 1973 and his family tree or pedigree is as under:
KHEMCHANDBHAI PREMCHANDBHAI MODI | ____________________________________________________________________________ | | | | | Ratilal Jayantilal Jayendra Pannalal | (son) (son) (son) (son) | (Def. 3) (Pltf.) | | | Dilipbhai (Def. 3) | Predeceased Son's son | ______________________________________________________________________________ | | | | | Nangiben Prabhavatiben Samguniben Jashodaben Kishoriben Daughter Daughter Daughter Daughter Daughter (Def. 4) From the aforesaid pedigree, it becomes clear that deceased Khemchandbhai had four sons and five daughters.
(iv) It is also an admitted fact that deceased Khemchandbhai bequeathed the aforesaid self-acquired property by a Registered Will dated 14th July, 1964 to some of his heirs and reference to such disposition being relevant, shall be made hereafter at appropriate stage.
(v) It may be stated that Late Khemchandbhai Premchand also executed a Codicil on 16th July, 1967 and get the same registered on 21st July, 1967 whereby he made certain changes in the disposition made earlier by the Will.
(vi) It is not a matter of dispute that the parcel of land which was allotted to deceased Khemchandbhai was constructed upon by him from out of his own fund by constructing a bungalow. The superstructure consisted of a cellar, a ground-floor, a chowk being open to sky and a first floor. The said superstructure was constructed in the year 1945 and the plan of such superstructure is produced by the plaintiff in the trial Court. From the site plan which is produced by the plaintiff, it is clear that on ground-floor staircase leads to cellar with the dimension of 17'-8" x 7'-4". On the ground-floor, there are steps which lead to veranda of the width of 6'-2". In the veranda, there is opening of one hall which is of the size of 14' x 12' and there is another door which leads to study room of the size of 11' x 14'. This study room has one attached bathroom and has door which leads to ladies room admeasuring 11' x 12' which also has attached bathroom. This ladies room has also opening in the hall mentioned hereinabove. This hall has also opening in the drawing room which is admeasuring 14' x 12' and the hall thereafter has towards north opening to a wide veranda of the width of 6'-6". Beyond veranda, there is open chowk towards north and in this wide veranda, there is a staircase which leads to cellar. This veranda has one attached bathroom and the drawing room has also one attached bathroom. Towards one side of the chowk, there is kitchen and store admeasuring 12' x 15' attached with water room having opening in the kitchen and one bath having opening in the chowk portion. The chowk portion which is open to sky has also steps with door which could be bolted from within and one who has to go to cellar, has necessarily to pass through open chowk and wide veranda and one who has to go to the first floor has also necessarily to pass through open chowk and veranda to go to the staircase leading to the first floor. Further details of the first floor are not required to be stated.
However, on the balance open portion of the land of the said constructed bungalow, there is common compound, a water tap, water tanks (Kundio) and one lavatory and one garage. The parties to the present proceeding are not disputing that this open compound of the bungalow along with water tap, kundio, garage, were and are of the common use and that the bungalow has access only through the open land of compound.
(vii) It is not a matter of dispute between the parties that during the life-time of Late Khemchandbhai Premchand Modi from the date the said bungalow was built till he died, the same was used by him and his sons and daughters as the dwelling-house though some of his heirs might have resided separately. It is, prima facie, clear from the documentary evidence produced on record before the trial Court that initially there were two electricity connections for the entire dwelling-house, one on the ground-floor and one on the first floor in the name of deceased Khemchandbhai.
(viii) The Testator Late Khemchandbhai expired on 21st July, 1973 and it appears that beneficiaries/legatees under the registered Will read with registered Codicil, applied to the aforesaid Co-operative Society for transferring the said plot of land in their names jointly as well as entering their names as joint owners in the share certificate. Though such application made to the Society is not forthcoming, it is not disputed mat the said Society approved the bequest of the Testator in favour of the four legatees and recorded the mutation or change in the share certificate at the back of the share certificate on 22nd of April, -1980. The back of the share certificate is in the tabular form with the caption "details of the aforesaid shares having been transferred and the tabular form has five columns". The first column bears the date of 22nd of April, 1980 and the fourth column bears the details of persons in whose favour the share certificate is transferred and the said four persons are:
(a) Narangiben Khemchandbhai Modi (daughter) defendant No. 4
(b) Jayendrabhai Khemchandbhai Modi (son) defendant No. 3
(c) Pannalal Khemchandbhai Modi (son) plaintiff
(d) Dilipbhai Jayantilal Modi (grandson) defendant No. 2 The fifth column is that of the seal and signature of officers certifying the entry and the Secretary of the Society has certified the entry on 13th May, 1980. It is thus clear that the aforesaid plot of land along with superstructure thereon came to be mutated in the name of aforesaid four persons pursuant to their joint application and one share certificate comprising of five shares thus came to be held jointly by the aforesaid four beneficiaries/legatees.
(ix) Now at this stage, it would become absolutely essential to refer to the relevant clauses of the Registered Will dated 14th July, 1964 executed by deceased Khemchandbhai and the Registered Codicil dated 21st July, 1967. All the parties to the suit do not dispute the execution of the Will or the executing capacity of the testator, his sound state of mind when he executed the Will or Codicil, or the contents of the Registered Will and the Codicil at this stage and they rely upon these two documents of order to support their respective cases. The original Registered Will and the Registered Codicil are in Gujarati language and this Court, therefore, called upon die respective parties through their Advocates to submit a common accepted translation of the said two documents to this Court. However, the respondent No. 1 plaintiff and main contesting defendant being the appellant and Dilip Jayantilal Modi could not agree to a common translation of the said documents and the parties have submitted two separate translations. There is no dispute amongst the parties that all clauses of the Registered Will and Codicil are not relevant for the purpose of deciding the present Appeals and the clauses with the immovable property, namely, the aforesaid plot of land along with superstructure thereon are relevant for the purposes of these Appeals.
(x) In view of non-agreement between the contesting parties as regards translation of the Will and the Codicil, at this stage, this Court will first make a reference to the relevant provisions of the Registered Will in Gujarati language and also the relevant provisions of the Registered Codicil in Gujarati Language.
(xi) The second and third paras of the Preface of the Will and the clause one of the Will which is divided into four sub-paras being relevant, are reproduced hereunder. The subsequent disposition refers to movable properties, to which no reference is required to be made.
(xii) Clauses 1, 2 and 3 of the Registered Codicil being relevant,are reproduced hereunder:
(xiii) In view of the disagreement of the parties about agreed translation of the relevant provisions of the Registered Will and the Codicil, this Court translated the aforesaid provisions of the Will and the Codicil in English as under:
Translation of Relevant Provisions of the Registered Will:
All my properties are my self-acquired properties of my independent ownership and no one has any right or interest of any kind therein. I have four sons and all my four sons are independent of me in business etc. I have five daughters and all of them have attained age of majority.
1. I have my bungalow with compound being of number A/5 in Swastik Society in Ahmedabad. I give to my son Jayendra and daughter Narangi for life on condition not to let it out to any one, the first floor of the said bungalow along with terrace over it and the right over it upto the sky along with the cellar below the ground-floor and along with pucca garage in the compound, in that manner the upper portion of the bungalow together with a right of way through the door put in a separate passage made by placing a partition or outgress and ingress for the first floor people and also the right of outgress and ingress through the door placed in the chowk and the right to use the chowk, in that manner along with all the rights (stated above) and after their life-time, my son Pannalal and his heirs and successors shall become owner (Malik) of the said part.
I declare my son Jayantilal's son, Dilipkumar as independent owner (Malik) of the remaining part of the constructed portion of the ground-floor of the said bungalow.
My on Jayendra and daughter Narangi shall have a right upto their life-time in the open land of the compound of the bungalow, taps, tanks (Kiindis) WC.s. etc., and thereafter Pannalal and Pannalal's heirs and successors shall be the co-owners thereof with my grandson Dilip.
The electric connection of ground-floor and first floor is in my name which should be separated by incurring expenses from any property and till the connection (Electric) for upper and ground-floors is common, both should share whatever the bill thereof equally.
Translation of Relevant Provisions of the Codicil:
1. I have made my will on 12-6-1964 which was registered at Sr. No. 5784 in the office of sub-Registrar at Ahmedabad. By the said Will, I have bequeathed to my son Jayendra and daughter Narangi for life on condition not to let it out to any one, the first floor of the said bungalow along with terrace over it and all the rights over it upto the sky along with the cellar below the ground-floor and along with pucca garage in the compound, in that manner the upper portion of the bungalow together with a right of way through the door put in a separate passage made by placing a partition for outgress and ingress for the first floor people and also the right of outgress and ingress through the door placed in the chowk and the right to use the chowk, in that manner along with all the rights stated above, and after their life-time to my son Pannalal and his heirs and successors as owner (Malik) of the said part. I have bequeathed the remaining part of the constructed portion of the ground-floor of the said bungalow as independent owner to my son JayantilaFs son Dilipkumar and I have bequeathed the open land of the compound, taps, Kundis (Tanks), W.C.s. etc. to Jayendra and Narangi for life and thereafter to Pannalal and his heirs and successors as co-owners with my grandson Dilipkumar.
2.1 make the following amendment or changes by this Codicil in the disposition about bungalow made by my above-stated Will.
3. In case my son Pannalal wants to construct a second floor on the said bungalow during the life-time of Jayendra and Narangi, I give him the right to construct the same at his own expense and I give him the right to use the compound of the bungalow and the first floor for passage for egress and ingress from and to the second floor and my son Jayendra and my daughter Narangi or my grandson Dilipkumar and his heirs and successors shall not have any right to obstruct my son Pannalal from constructing the same for any reason.
(xiv) From the aforesaid provisions of the Registered Will and the Codicil and the pleadings of the parties in the suit, it is clear that, the properties including the suit property, i.e., the plot of land in the Society and the superstructure thereon was self-acquired property of deceased Khemchandbhai acquired out of his own funds and was of his absolute ownership and that no one had any right or interest of any kind in such property. He was legally competent to dispose of such property in the manner he liked including by way of testamentary disposition. It is also not in dispute that under the Will, firstly, he created a life interest in favour of his son Jayendra and daughter Narangiben (defendant Nos. 3 and 4) to enjoy the first floor of the said bungalow along with terrace rights as well as cellar below the groundfloor along with garage situated in the compound together with a right of way through a separate door put by way of separate passage by placing a partition for ingress and outgress to the first floor and to use the open chowk on the groundfloor for all purposes with free and unhampered right of outgress and ingress to the chowk. This right was only conferred during their life-time on condition that they shall not let out to anyone the said portion and it was further stipulated that after their lifetime, the son of the deceased Testator, namely, Pannalal Modi (present plaintiff) and his heirs and successors shall become full and absolute owner (Malik) of the said portion of the bungalow.
By the said disposition, secondly the testator also made his grandson Dilipkumar, son of Jayantilal, full, absolute or independent owner (Malik) of the remaining part of the constructed portion of the ground-floor of the said bungalow.
Thirdly, as regards right to use the open compound surrounding the bungalow, water taps, water tanks, lavatory and garage are concerned, it is clearly stipulated that his son Jayendra and daughter Narangi, during their life-time shall have the right to use the open land of the compound, water taps, water tanks, lavatory and that after their life-time, Pannalal Modi (plaintiff), his heirs and successors shall be the owners or joint owners with his grandson Dilip (son of Jayantilal - defendant No. 2).
It is also stipulated that the electricity connection on the ground-floor and the first floor which was in the name of the Testator shall be got separated by incurring expenses for ground and the first floor and that the legatees should share the bill equally.
Fourthly, after the death of said Jayendra and Narangiben, in whose favour life interest was created, the Testator clearly stipulated that his another son Pannalal Modi and his heirs and successors shall be the absolute owner of the first floor and the cellar and of all rights of common enjoyment of the dwelling-house given to the two limited holders, namely. Jayendra and Narangiben, Fifthly, it is not disputed that all legatees have right of way or access to the said bungalow and the right of enjoyment of the open surrounding of the said bungalow along with the right to have ingress and outgress through the passage upto the staircase on the ground-floor for leading to the first floor. The common right of enjoyment of the open chowk on the ground-floor upto the sky is given to all the legatees and to that extent, the legatees are the co-owners of the said portion of the property. Sixthly, by Registered Codicil, the Testator has made essential change in the earlier disposition by Registered will by clearly conferring absolute ownership right on Pannalal Modi (plaintiff) to put up construction on the second floor over the terrace of the first floor in case he wanted to construct at his own cost and for such purpose specific right is conferred on Pannalal Modi of ingress and outgress through compound, ground-floor and the first floor so as to put up construction of the second floor and it is clearly stipulated that neither limited interest holders Jayendra or Narangiben nor Dilipbhai Jayantilal who is made the exclusive owner of the ground-floor subject to the aforesaid rider will obstruct or will have any right to obstruct Pannalal in putting up such construction. Additionally, the Testator also conferred right on Pannalal Modi to put up construction of the second floor even after death of two holders of life interest, namely, Jayendra and Narangiben and it is also stipulated that in putting up construction, his grandson Dilipbhai Jayantilal nor his heirs or representatives shall have any right to obstruct.
(xv) Though it is not admitted, from the cause title of the plaint, factum of service of summons of the plaint on the appellant defendant No. 1 and othervoluminous documentary evidence in the nature of bills of electricity consumption with respect to the ground-floor portion of the bungalow along with the report prepared and submitted by the Commissioner of the Court, at this stage, prima facie, it could be inferred that appellant defendant No. 2 Dilipbhai Jayantilal was on the date of the suit and prior thereto and even thereafter not using or residing at the ground-floor of the said dwelling-house (bungalow) of which he was made the exclusive owner. He was and is residing at altogether a different place, namely, at 12, Aristo Ville, Jodhpur Tekra, Ahmedabad. In this connection, bill of Ahmedabad Municipal Corporation as well as bills of consumption of electricity for the ground-floor during the year 1992-93 are produced, which show that appellant defendant No. 2 Dilipbhai Jayantilal was shown as person occupying the ground-floor and from the statement of electricity consumption it is found that he has made advance payment of the electricity bill and the consumption of electricity is practically nil.
(xvi) It may be stated at this stage that respondent No. 1 plaintiff Pannalal Modi instituted Civil Suit No. 941 of 1991 in the City Civil Court at Ahmedabad on 18th of February, 1991 and also filed an application for temporary injunction at Ex. 6 along with Notice of Motion at Ex. 5. Such suit was filed against Dilipbhai Jayantilal Modi (present appellant) and one H.N. Jadeja, residing at E/6 Police Officers Quarter, behind Civil Hospital and in such suit it was clearly averred that the aforesaid bungalow was the dwelling-house which belonged to an undivided family and that Dilipbhai Jayantilal was trying to sell, dispose of or in any manner transfer his interest in the family dwelling-house to the defendant No. 2 H. N. Jadeja, who was not a member of the family. It was, therefore, prayed that by appropriate order of injunction, defendant No. 2 was required to be permanently restrained from entering or occupying in any manner the family dwelling-house and enjoying compound thereof situated at A/5 Swastik Society. The injunction was prayed for against Dilipbhai Jayantilal (appellant) from selling, mortgaging or in any manner transferring or disposing of his share and interest in the family dwelling-house and compound etc. In the application for temporary injunction, a prayer was also made for appointment of Court Commissioner to note down the existing position of the ground-floor portion of the bungalow. In support of such suit, reliance was placed mainly on the Registered Will and Registered Codicil executed by deceased Khemchandbhai Premchandbhai Modi by producing the same along wifli the list at Ex. 3. It appears that the trialCourt granted ex parte ad interim injunction restraining Dilipbhai Jayantilal from selling, mortgaging, alienating or in any manner transferring or disposing of his share and interest in the family dwelling-house and compound, etc., to defendant No. 2 or any other person and also directed the parties to maintain status quo and also appointed Court Commissioner to make note and draw a plan as prayed for in the Notice of Motion.
(xvii) In response to the service of the summons of the plaint and injunction, defendant No. 2, namely, H. N. Jadeja appeared and filed reply at Ex. 18 admitting therein that the property in question situating at A/5 Swastik Cooperative Housing Society Limited, a plot admeasuring 902 sq. yard along with superstructure thereon was built by deceased Khemchandbhai Modi from out of his own fund and that he was the holder of shares No. 41 to 45. He also disclosed his knowledge of the fact that the deceased Khemchandbhai has executed the Registered Will and a Registered Codicil and that he has expired on 21st July, 1973. He, however, contended that in the record of the Society, the name of defendant No. 1, namely, Dilipkumar Jayantilal is entered as plot holder and that he has become the owner of one-half share of undivided land and all 202 sq. yard of constructed portion on the ground-floor and that as absolute owner he has a right to transfer or dispose of the said ground-floor portion. In para 7(E) of the reply he contended that since Dilipkumar Jayantilal has become the absolute owner of one-half portion of the open land as well as 202 sq. yard of constructed ground-floor portion, he has rented out the ground-floor portion to his son Mahipatsinh Himatsinh Jadeja at the monthly rent of Rs. 900/- by rent note dated 1st of April, 1990 and that his son Mahipatsinh Himatsinh Jadeja was the tenant in possession of the ground-floor portion.
(xviii) First time the reference was made to the ground-floor portion being rented out to Mahipatsinh Himatsinh Jadeja, but nothing was produced before the trial Court. Along with the memo of Appeal From Order No. 300 of 1995 the rent note dated 1st of April, 1990 is produced. Much is sought to be made out from this rent note which is produced for the first time in this Court to which reference will be made at the appropriate stage. The said rent note is on the stamp paper of Rs. 10/- and the said stamp paper is purchased on 22nd of March, 1990 for and on behalf of Solicitors firm Jani & Co. The fact that the stamp paper is purchased by Jani and Co. cannot be disputed and the further inference which could be drawn from this fact is that at least firm of Solicitors Jani and Co. knew that a tenancy was created by Dilipkumar Jayantilal Modi in favour of Mahipatsinh Himatsinh Jadeja. The two possible inferences which could be drawn from this document are that it was decided to create tenancy in favour of Mahipatsinh Himatsinh Jadeja by Dilipkumar on a stamp paper which was already purchased and which was available with Solicitors. Jani and Co. was being subsequently used for the purpose of creating a rent note. By the said rent note, it is stated that the possession of the ground-floor is handed over to Mahipatsinh Himatsinh Jadeja at a monthly rent of Rs. 900/- exclusive of Municipal tax, electricity bill, etc. and that persons occupying the first floor of the said bungalow have the unhampered right of passing through the open space of the said bungalow.
(xix) Incidentally, it must also be noticed that the first rent receipt is a printed rent receipt giving advance rent of three months, i.e., Rs. 2,700/- upto 30th June, 1990. The second rent receipt which is also payment by cash is for the month of December 1990 for Rs. 900/-. This is also a printed rent receipt.
(xx) At this stage it is pertinent to note that the trial Court had granted ad interim injunction in Civil Suit No. 941 of 1991 and the trial Court also granted the relief of appointment of Court Commissioner to inspect the ground-floor portion of the said bungalow. The report of the Court Commissioner is produced in the trial Court and from such report it becomes clear that the premises were visited on 18th February, 1991 around 7-00 p.m. in the evening where neither Dilipbhai Jayantilal Modi nor H.N. Jadeja was present and that the plaintiff was present there. Dilipkumar Jayantilal was informed at his residence and his wife informed that Dilipkumar was not at residence. From the report of the Court Commissioner it transpires that in the front door of the ground-floor there was a name plate admeasuring 12" x 6" showing the name of defendant No. 2 H. N. Jadeja, Police Superintendent as person in possession of the ground-floor.
(xxi) In the written statement which was filed by defendant No. 2 H.N. Jadeja, he also referred to the fact that subsequently a banakhat was executed by Dilipkumar Jayantilal in favour of his son and that banakhat is a registered banakhat dated 6th of September, 1990. He also referred to the fact that on 2nd of January, 1991 registered supplementary agreement was also executed by owner Dilipkumar Jayantilal in favour of his son and that his son was, therefore, in possession of the entire ground-floor as holder of rights of banakhat holder. It appears that even a public advertisement was issued in the newspaper through Solicitor Jani and Co. on 6th of January, 1991. This public advertisement specifically referred to the fact that owner of the ground-floor premises Dilipkumar Jayantilal was in possession of the premises but it did not disclose that the premises were leased out to tenant Mahipatsinh Himatsinh Jadeja and that he was in possession thereof since 1st of April, 1990. The notice was issued inviting objection from any person as Title Clearance Certificate was to be issued by the firm of the Solicitors and it appears that in the public notice it was clearly stated that as on the date of the notice undivided share of Dilipkumar Jayantilal Modi in Bungalow No. A/5 over undivided parcel of land admeasuring 902 square yard along with superstructure on the ground-floor of the said bungalow along with undivided share from the share certificate as well as the common facilities was of the absolute ownership of said Dilipkumar Jayantilal and was in his possession and that based on that Title Clearance Certificate was demanded from him by said Dilipkumar Jayantilal. Actual Title Clearance Certificate is given by Jani & Co., Solicitors & Advocates on 1st of February, 1991 and it is clearly stated in such Title Clearance Certificate as under:
Thereafter the said Khemchand Premchand Modi died on 21-7-1973 and as per the will and codicil of the said Khemchand Premchand Modi constructed land of Bungalow No. A/5 admeasuring 902 sq. yards (paiki) 1/2 undivided share in land and 202 sq. yards ground-floor construction came in the share of Dilipkumar Jayantilal Modi." "The Swastik Co-operative Housing Society Limited passed a resolution in the meeting of Committee members on 22-4-1980 and the name of Dilipkumar Jayantilal Modi was entered in the share certificate No. 41 to 50 with other co-owners.
(xxii) In view of the aforesaid disclosure made by defendant No. 2 H. N. Jadeja in the first suit along with document produced by him by list at Exhibit 41, the plaintiff realised that his suit against H. N. Jadeja was infructuous because his son Mahipatsinh Himatsinh Jadeja was said to be in possession of the ground-floor portion of the premises and he was said to be in possession firstly as a tenant and thereafter as holder of rights of banakhat. The plaintiff, therefore, had no other option but to file the second suit being Civil Suit No. 1250 of 1991 in the City Civil Court praying for permanent injunction against Dilipkumar Jayantilal and Mahipatsinh Himatsinh Jadeja from entering into or occupying any portion of the family "dwelling-house" including the ground-floor or its compound situated at A/5 Swastik Society, Navrangpura, Ahmedabad and also for further injunction from restraining the members of the family, their servants and agents from occupying, using and residing in the suit property more particularly the compound and chowk on the ground-floor. It appears that immediately within 14 days, the suit was amended and relief of mandatory injunction was prayed for directing Mahipatsinh Himatsinh Jadeja to restore the vacant possession of the ground-floor portion of the bungalow of which he was alleging to be in possession.
(xxiii) It may be stated that in the second suit filed on 5th of March, 1991, ad interim injunction was granted. Thereafter application at Exhibit 34 was given on 24th of July, 1991 by the plaintiff and further interim injunction was sought to restrain the defendant, his servants, agents and members of the police attached to his father H. N. Jadeja from in any manner obstructing the plaintiff, his servants and agents from making any construction over the first floor in the bungalow and further injunction restraining him from handing over the interest allegedly and illegally acquired by him from Dilipkumar Jayantilal Modi by way of agreement to sell to any third party or parties in any manner whatsoever and further from handing over the possession of the ground-floor portion to any third party or parties.
(xxiv) Thereafter on 28th of October, 1991 application at Exhibit 42 was moved by the plaintiff claiming on the same pleadings which were made in the plaint of the first suit, in the plaint of the second suit as well as in the application for temporary injunction in the second suit, that the suit bungalow including the ground-floor along with the open parcel of land was the dwelling-house of the family of deceased Khemchandbhai Premchandbhai Modi and that Dilipkumar Jayantilal Modi and Mahipatsinh Himatsinh Jadeja, their servants and agents should be restrained from enjoying, using and residing in the ground-floor of the bungalow more particularly the chowk, staircase, upper floors and compound of bungalow of Plot No. A/5, Swastik Co-operative Housing Society and from handing over, transferring, alienating, selling or parting with the possession of the suit property. They also prayed for mandatory injunction directing Mahipatsinh Himatsinh Jadeja (defendant No. 1) to stop using and occupying the ground-floor of the bungalow or any part thereof and the compound and to restore the possession of the said ground-floor in its vacant condition to the plaintiff as the bungalow was a "dwelling-house."
(xxv) All these applications, namely, application at Exhibit 6 in Civil Suit No. 1250 of 1991, application at Exhibit 34 dated 24th of July, 1991 and application at Exhibit 42 dated 28th of October 1991 were hotly contested by the defendant by filing the written statement and both the parties produced voluminous documentary evidence before the trial Court. The trial Court heard all the four applications including Exhibit 5 of Civil Suit No. 941 of 1991 together and by impugned judgment and order dated 20th of June, 1995, the trial Court has issued following injunction and direction:
1. The prayer made in Paras 7(A) 1, 2 and 3 of Exh. 21 is granted and made absolute till final decision of the suit.
2. Ad interim injunction prayed in Paras 9(A) and 9(B) of Exh. 34 is granted and made absolute till final decision of the suit.
3. Ad interim injunction as prayed in Para 8(A) of Exh. 42 is granted and made absolute till final decision of the suit.
4. Ad interim mandatory injunction as prayed in Para 8(B) of Exh. 42 is granted and made absolute till final decision of the suit.
(xxvi) It may be stated at this stage that injunction granted by Clause-4 in terms of Para 8(B) of Exhibit 42 strongly aggrieved the appellant Mahipatsinh Himatsinh Jadeja and though as many as four Appeals are filed by him, his serious challenge is confined to Para 4 of the operative part of the order whereby by prayer of Application at Exhibit 42 is granted. The trial Court has granted mandatory injunction directing him to stop using and occupying the suit premises or any part thereof including the ground-floor of the bungalow and the compound of sub-plot No. A/5 of Swastik Co-operative Housing Society Limited and to restore the said property to its original vacant condition. In the separate Appeal filed by Dilipkumar Jayantilal Modi, he has also challenged the common order passed by the learned City Civil Judge below Exhibits 5, 21, 34 and 42. In fact, there was objection but not serious enough to the first three reliefs being granted excepting the reliefs granted by the 4th clause as set out hereinabove. However, it may be stated that the challenge to the entire order is not given up and this Court is called upon to decide all the five Appeals From Order on merits.
6. Legal Provisions:
Before setting out the legal submissions made by the rival parties in detail, since they centre round the interpretation of Section 44 of the Transfer of Property Act, 1882 read with Section 4 of the Partition Act which is almost in pari materia with aforesaid Section 44, it would be just and proper to set out at this stage the provisions of law and thereafter to set out the legal submissions in detail Section 44 of the Transfer of Property Act and Section 4 of the Partition Act are quoted hereunder in the tabular form and are put in juxtaposition so that the legal submissions based thereon could ' be properly appreciated.
Section 44 of Transfer of Property Section of Potion Act, 1893
Act, 1882
44. Transfer by one co-owner :- Where one 4- Partition suit by transferee of share in
of two or more co-owners of immovable dweiling-house :- (1) Where a share of a
property legally competent in that behalf dwelling-house belonging to an undivided
transfers his share of such property or any family has been transferred to a person who
interest therein, the transferee acquires,as is not a member of such family and such
to such share or interest, and so far as is transferee sues for partition, the Court
necessary to give effect to the transfer,the shall if any raember of me farnily being a
transferor's right to joint possession or other shareholder shall undertake to buy the common or part enjoyment of the property, shair of such transferee, make a valuation of and to enforce a partition of the same, but such share in such manner as it thinks fit subject to the conditions and liabilities and direct the sale of such shareholder affecting, at the date of the transfer, the and may give all necessary and proper share or interest so transferred. directions in that behalf.
Where the transferee of a share of a dwelling- (2) If in any case described in sub-
house belonging to an undivided family is Section (1) two or more members of the
not a member of the family, nothing in this family being such shareholders severally
section shall be deemed to entitle him to undertake to buy such share, the Court
joint possession or other common or part shall follow the procedure prescribed
enjoyment of the house. by Sub-section (2) of the last foregoing
Section.
7. Legal Submissions of Mr. K.V. Shelat for Appellant (Transferee), Mr. B. J. Shelat & Mr. M. B. Gandhi:
Having set out the gist of the pleadings and the documents relied upon by rival parties to bring home the respective points, it would be appropriate at this stage to refer to the legal submissions made by Mr. K.V. Shelat, learned Counsel appearing for the appellant Mahipatsinh Himatsinh Jadeja (Transferee) in first group of four appeals and Mr. B. J. Shelat, who has appeared in the proceeding at a late stage representing Dilipkumar Jayantilal Modi (Transferor). In the independent appeal filed by Dilipkumar Jayantilal Modi, Mr. M. B. Gandhi, learned Counsel has also advanced separate arguments and Mr. N. J. Bhatt and Mr. M. D. Pandya have submitted their legal submissions for and on behalf of the plaintiff.
(i) The provisions of Second Para of Section 44 of the said Act were not at all attracted to the fact situation of the present case as the transferor Dilipkumar Jayantilal Modi was not one or more of the co-owners of the suit property because under the testamentary disposition the property was bequeathed to him absolutely as owner of the ground-floor with right to dispose of the same and he was, therefore, legally competent to transfer the property. When Dilipkumar Jayantilal Modi transferred his exclusive and absolute property which he was legally competent to transfer under the testamentary disposition, the appellant Mahipatsinh Himatsinh Jadeja acquired such share or interest in the property as is necessary to give effect to the transfer and therefore, the transfer in question was not hit by Second Para of Section 44.
(ii) The trial Court grossly erred in holding that the ground-floor of the bungalow over Plot No. A/5, Swastik Co-operative Society was belonging to an undivided family and in further holding that such bungalow was a dwelling-house belonging to an undivided family.
(iii) Once it was considered that the property, namely, the plot of land and superstructure thereon solely and absolutely belonged to deceased Khemchand Premchand Modi and once his power of making testamentary disposition of his property is conceded, the bequest of the ground-floor of the bungalow in favour of Dilipkumar Jayantilal Modi being absolute with a right of disposition of the said ground-floor, the Court below erred in holding that Dilipkumar Jayantilal was transferring the share of a dwelling-house belonging to an undivided family to Mahipatsinh Himatsinh Jadeja (Transferee) who admittedly is not a member of the family.
(iv) If various clauses of the registered Will of deceased Khemchand Premchand Modi and subsequent registered Codicil are appropriately read by the Court as if it was sitting in the arm chair of the Testator the intention of the Testator was very clear to make Dilipkumar Jayantilal Modi the exclusive and absolute owner of the ground-floor of the bungalow with absolute and exclusive right of disposition of the ground-floor to the person of his choice and therefore, even if the house is held to be dwelling-house, after the death of deceased Khemchand Premchand Modi, it could not be said to be belonging to an undivided family under the Will and Codicil and the ground-floor cannot be said to be belonging to an undivided family.
(v) The trial Court grossly erred in reading and applying the ratio decidendi of the decision of the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden, and more particularly in granting mandatory injunction against the appellant transferee who was already in possession of the ground-floor.
(vi) Even ifprima facie case for grant of prohibitory injunction can be said to have been established, the case was not fit one for grant of mandatory injunction as none of the ingredients set out by the Apex Court in the case of Dorab Cawasji (supra) were established and therefore, in any case the mandatory injunction as granted by the trial Court against appellant transferee is required to be quashed and set aside till the suit is finally decided.
(vii) The learned Counsel Mr. B.J. Shelat appearing for Dilipkumar Jayantilal Modi, the transferor has submitted that provisions of Section 44 of the said Act and more particularly second part thereof were not attracted to the facts of the case and in the alternative even if the same were attracted, due to the curious circumstances of the case, more particularly, the testamentary disposition giving absolute and exclusive right of ownership to Dilipkumar Jayantilal Modi over the ground-floor of the suit bungalow, it was hazardous to grant the mandatory interim relief as in any case the very bungalow cannot be said to be a dwelling-house belonging to an undivided family.
(viii) Assuming without admitting that Second Para of Section 44 of the said Act was attracted, even then, in view of the pleadings of the parties and more particularly the evidence on record, no relief of mandatory injunction could have been granted by the trial Court as that in substance would amount to decreeing the suit of the plaintiff.
(ix) The City Civil Court has no jurisdiction to try, entertain and decide the suit because of pleading of the parties, Mahipatsinh Himatsinh Jadeja was the tenant of Dilipkumar Jayantilal Modi since 1st of April, 1990 and therefore, in order to seek eviction of said tenant from the premises, the resort must be had to the provision of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and only the Small Causes Court at Ahmedabad will have jurisdiction to grant such relief.
(x) In any case, the facts and circumstances established before the Court at this stage were not such as to deserve grant of mandatory interim injunction and the Court could have modified the relief so as not to permit the transferee to further deal with the property or otherwise complete the transaction of sale.
(xi) Mr. M.B. Gandhi, learned Counsel appearing for Dilipkumar Jayantilal Modi in the separate petition has more or less repeated the very submissions made by Mr. B. J. Shelat and has submitted that in any case second para of Section 44 was not attracted as the dwelling-house could not be said to be belonging to an undivided family because the family was already divided and family house or dwelling-house was also divided by the testamentary disposition in question and therefore, the legatee Dilipkumar Jayantilal Modi was the absolute and exclusive owner of the ground-floor.
(xii) For applicability of Second Para of Section 44, the dwelling-house should remain undivided in every sense and if the dwelling-house is divided by the Testator, the Second Para of Section 44 cannot be attracted.
(xiii) The unfettered and absolute right of disposition given to legatee Dilipkumar Jayantilal Modi under the Will made him absolute owner of the ground-floor, and the property thereafter no longer remained as undivided and therefore, the provision of Section 44, Second Para were not at all attracted and no prima facie case was made out which would justify grant of any injunction whatsoever.
8. Before this Court deal with the aforesaid legal/factual submissions made at this interlocutory stage by the learned Counsel, it would also be just and proper to set out the legal submissions of learned Counsel Mr. N.J. Bhatt/Mr. M.D. Pandya for plaintiff.
9. Submission of Mr. N.J. Bhatt/Mr. M.D. Pandya for Plaintiff:
(i) For grant of and/or refusal of ad interim relief (injunction) by the trial Court much depends upon facts. The prima facie case is pleaded and established by the plaintiff in the plaint in both the suits along with the list of contemporary documents. The Court at this stage is not expected and required to reach final conclusions on appreciation of pleading or documentary evidence and is simply required to decide as to in whose favour a strong prima facie case exists.
(ii) In these two suits, the facts pleaded by the present appellants in the written statements/replies as well as documents produced and relied upon by the appellants were not only not sufficient to establish any prima facie case of the defendants and the deviation in the stand taken by the father of the transferee and Mr. Dilipkumar Jayantilal Modi was successfully and to the satisfaction of the trial Court brought out by the plaintiff and the case which was pleaded from the beginning by the plaintiff, based on Para 2 of Section 44 of the T. P. Act is the foundation of the pleading for grant of interim relief and neither there is change on any stand in their pleading nor have they at any point of time deviated from the various documentary evidence produced by them. The trial Court has after a very lengthy and well considered judgment written at the interlocutory stage without finally concluding any issue of fact or law, and mostly based on the binding precedent of the Supreme Court in the case of Dorab Cawasji Warden (supra) found that the case of the plaintiff fall squarely within the proposition of law established therein by three-Judge Bench of the Apex Court and that factual pleadings and proof produced by the plaintiff were closely parallel and comparable to those of the case before the Supreme Court and hence the case was a fit one for confirming the judgment and/or granting ad interim injunction as prayed for as balance of convenience was paramountly in favour of the plaintiff and secondly that grant of injunction as prayed for, was neither prohibited by law nor in any way inconsistent with the passing of the mandatory order as prayed for in last notice of motion taken out by plaintiff at Exhibit 42. The dubious devise adopted by the father of the transferee and his son in collusion with the transferor, namely, Dilipkumar Jayantilal Modi was so convincingly established before the trial Court by the documentary evidence that the trial Court found that it was a case closely comparable to the case before the Apex Court in the case of Dorab Cawasji Warden (supra) while granting mandatory interim injunction.
(iii) Mr. N. J. Bhatt and Mr. M. D. Pandya in this behalf extensively referred to and relied upon the provisions of the bye-laws of the society and the present-day status of the appellants and Dilipkumar Jayantilal Modi in the register of the society compared to the status of the other co-sharers to squarely bring the case within the purview of Para-2 of Section 44 of the T. P. Act. The grant of mandatory injunction in such cases where attempts were being made by the co-sharer to dupe and to transfer his share in the property of a dwelling-house belonging to an undivided family to a person who is not a member of the family, the provision of Section 44 would not apply and the transferee can only be entitled to, in case he ultimately succeeds, the joint possession or part enjoyment of the house and till then it is the obligation of the Court to see that status quo is maintained and to see that the undivided members of the family are not disturbed in their enjoyment of a dwelling-house by giving right of entry to an outsider transferee.
(iv) Before this Court proceeds to deal with the aforesaid legal and factual submissions made by the learned Counsels appearing for the parties, there is no manner of doubt that this Court in its jurisdiction is not called upon to decide the rights of the parties finally and conclusively based on appreciation of any oral or documentary evidence. The duty of the Court deciding Appeal From Order under Order 43 Rule l(r) of the Code of Civil Procedure is very succinctly and clearly stated by the Apex Court and this Court has the opportunity of bringing out the distinction between the power of the Appellate Court under Section 96 compared to the power of Appellate Court under Order 43 Rule l(r) of the C. P. Code in the following terms in the case of Bhagwanji Vishavji Thakker v. Pravinchandra Jivabhai Patadia, reported in 1995(2) GLR 1438 (at Page Nos. 1456-57).
The provision of Order 43 Rule 2 which provides that the provisions relating to first appeal shall apply to Appeal From Orders also shall have to be understood in the sense of following provisions relating to procedure. It is true that the Court exercising power of appeal against interlocutory order is exercising such power against the exercise of discretion by the trial Court. Normally, therefore, such appellate Court deciding Appeal From Order would not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the material at the trial stage it may have to a contrary conclusion. However, it would not be tantamount to saying that once that order of trial Court is discretionary order, the appellate Court would in no case interfere. The Supreme Court has very clearly pointed out that even in the exercise of discretion by the trial Court if it is found that the trial Court has acted unreasonably or capriciously or has ignored relevant facts or has adopted an unjudicial approach then it would certainly be open to the appellate Court -and in many cases it may be its duty to interfere with the exercise of discretion by the trial Court. It is also to be kept in mind that ordinarily the discretion which is exercised by the trial Court at the stage of interlocutory order is based on appreciation of documentary evidence (which is neither proved nor admitted in evidence) and on affidavit evidence (which is not subjected to the test of cross-examination) there is no regular evidence before the trial Court at this stage and based on the pleadings as well as the documentary evidence of the aforesaid nature that the trial Court exercises its discretion. The approach of the appellate Court dealing with such Appeal From Order, therefore, shall have to be more cautious. It cannot simply by stating that the order of the trial Court being discretionary order, confirm the order and dismiss the appeal. This type of conformist approach may lead to speedy disposal of miscellaneous appeals but in the ultimate analysis at times may result into encouragement of wrongful exercise of discretionary power. The appellate Court exercising power of appeal against an order shall have to apply its mind more cautiously and shall have to find out as to whether the discretion exercised by the trial Court is judicious, is based on relevant facts and circumstances or whether the trial Court has acted unreasonably or capriciously or has adopted an unjudicial approach.
10. This Court at once, therefore, states that none of the tentative findings of fact or law reached by this Court are conclusive and final and would determine the rights of the parties for all time to come as that function is to be discharged by the trial Court after framing issues and permitting the parties to lead oral as well as documentary evidence and lastly to reach the findings based on its own appreciation of evidence and to decide as to whether declaration and permanent injunction as prayed for should be granted by the Court of law or not. The trial Court has even right and authority to upset its earlier order of injunction and to restore the status quo ante which was prevailing on the date it proceeded to grant temporary injunction. This Court, therefore, would never cause any hardships to either of the parties nor would it affect the balance of convenience amongst the parties.
11. The essential ingredients of Section 44, Para 2 of Transfer of Property Act as put forth by Mr. K. V. Shelat and Mr. B. J. Shelat for the appellants and Mr. Dilip J. Shah : In their submission, the provisions of Para-2 of Section 44 of the T. P. Act were not at all attracted to the fact situation prevailing in this group of Appeals and secondly by misreading the provisions of the Act and misapplying such provision, the trial Court has created a mess and has misled itself in law so as to grant ad interim relief which it could have never granted as essential ingredients of Para-2 of Section 44 of the T. P. Act were factually missing in this case.
12. Essential ingredients of Para-2 of Section 44 of the Transfer of Property Act, in their submission are following:
(i) Section 44, Para 2 of the Transfer of Property Act, which came into force in 1882, conferred a privilege on the shareholders of a dwelling-house, belonging to an undivided family, by providing that a transferee of a share of the dwelling-house will not be entitled to joint possession or other common or part enjoyment of the house so long as the undivided status of the family continued. The principle of subrogation, which is embodied in Section 44 of the Transfer of Property Act, is not-extended to a dwelling-house in all its amplitude. Section 4 of the Partition Act is merely an extension of that privilege.
(ii) The property in question, therefore, must be (a) belonging to an undivided family and (b) an attempt is being made to transfer such share to an outsider by another member of the family must be discouraged as an outsider in a dwelling-house belonging to an undivided family would cause irreparable hardship and would frustrate the object of protecting the members of undivided family in a dwelling-house to their detriment.
(iii) The principle underlying the provision in para 2 of Section 44 is that it is inequitable to permit a stranger to intrude upon a privacy of an undivided family residence. But Section 44 of the Transfer of Property Act left the stranger purchaser free to have his share carved out in a suit for partition. It is this mischief that was sought to be prevented by Section 4 of the Partition Act. The object underlying Section 4 aforesaid is to prevent the transferee of a share in the family house, who is an outsider, from forcing his way into the dwelling-house in which other members of his transferor's family have a right to live.
(iv) The object of this provision is to prevent the intrusion of 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 to a stranger. The factual position then is that it is still an undivided dwelling-house, the possession and enjoyment of which are confined to the members of the family, the stranger transferee being debarred, by law, from exercising his right to joint possession which is one of the main incidents of co-ownerships of property. Such a dwelling-house can still be looked upon as a dwelling-house belonging to an undivided family, because the members of the family have not divided it amongst themselves and are in sole enjoyment and possession of it to the exclusion of the stranger transferee who has only a right to partition. And so long as the house has not been completely alienated to strangers as was the case in. Vaman Visht Basudeo Norbhal, successive transfers by other co-sharer members of the family do not alter the factual position in this respect, because the remaining member or members of the family have the right to hold exclusive possession to the exclusion of the stranger alienees. So long as that situation lasts, the dwelling-house continues to be a dwelling-house belonging to an undivided family.
(v) However, in case partition of an undivided dwelling-house has taken place amongst the members or the possession of different part of undivided dwelling-house is in every respect separate and not joint, it cannot be said to be an undivided dwelling-house and secondly the members of the family have no right to seek protection under Section 44(2) of the said Act.
13. Analysing and dissecting Section 44 of Para-2 of the T. P. Act only for interpretation to know and ascertain the essential ingredients of Para-2 of Section 44.
This Court may at this stage simply refer to the binding precedent of the Apex Court where the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden (supra) found:
(i) In order to attract Second Para of Section 44, the subject-matter of the transfer has to be a dwelling-house belonging to an undivided family.
(ii) The transfer impugned is a share in the same dwelling-house to a person who is not a member of the family.
(iii) In order to satisfy the aforesaid ingredients, the 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.
(iv) On the other hand having regard to the restriction on the rights of a transferee for joint possession and the dominant purpose of the Second Para of Section 44 of the Act, there is danger of an injury or violation of the corresponding rights of 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.
Having brought out the aforesaid ingredients of Para 2 of Section 44 of the T. P. Act, repeatedly M/s. K. V. Shelat and B. J. Shelat submitted firstly that:
(i) There was no reasonably certain view before the trial Court at that stage to hold that the suit property was a dwelling-house belonging to an undivided family.
(ii) From the testamentary disposition and codicil made by the testator it was on the contrary established that after the death of the testator, the property was no longer belonging to an undivided family and secondly that in fact it was separate, independent property of absolute ownership of transferor Dilipkumar Jayantilal Modi as per the testamentary disposition who was absolute owner of the share allotted to him under the testamentary disposition with full right of disposal of his share in the property and that therefore, partition of share or at least the dwelling-house thereafter could not be said to be belonging to an undivided family and that therefore, the provisions of Para-2 of Section 44 were not applicable.
14. Does the House belong to an Undivided Family?
M/s. K.V. Shelat and B. J. Shelat very vehemently submitted that if testamentary disposition/Will executed by testator is read closely and properly, the testator in no uncertain terms stated that all his properties were self-acquired and of his independent ownership and that no one has any right or interest or share in such property. In view of this assertion made by the testator, it is submitted that the property in question was self-acquired property which could be disposed of by the testator in a manner he liked and was not an undivided family property.
It is secondly submitted that though in the pleading of the transferee it is "inadvertently admitted that the property in question was undivided family property", it cannot have any relevance nor did any recital in the rent note executed by the transferee in favour of Dilipkumar Jayantilal Modi can have any relevance. They also submitted that even assertion made in the agreement to sell the property dated 6th September, 1990 by Dilipkumar and public notice issued through Solicitor inviting objection and published in Janasatta dated 4th January, 1991 contain the "admissions made inadvertently" and they were not intended to be acted upon. In the present case, the second para of Section 44 cannot have any application because the dwelling-house did not belong to an undivided family and solely belonged to testator Khemchandbhai Premchandbhai Modi. Mr. B. J. Shelat, in fact, at this stage wanted this Court to read the various provisions of the registered will and in his submission even if it was assumed and in his submission in view of the decision of the Gujarat High Court in the case of Shantilal Babulal (supra) there was full power of disposition in the testator and since he has absolutely transferred his right, title or interest over portion of the ground-floor of the bungalow, the rest of the provisions made in the will should be read as void and no importance should be attached to them. He has in this connection also invited attention of the Court to some observations made by the learned Author Gupta in his book Hindu Law and as to how the provision of the will should be interpreted. It was his submission that the Will shall have to be interpreted at this stage by the Court and if it is so interpreted, the property which came to the share of Dilipkumar, can never be said to be an "undivided family property".
15. In the opinion of this Court, it will be improper and hazardous for this Court at this stage to refer to various decisions of the Court as to how a registered will or codicil should be interpreted and as to how one clause can be rendered ineffective by operation of the second clause. In fact, decision on this point is to be reached by the trial Court after giving opportunities to the parties to lead evidence and to ascertain the intention of the testator from the language employed as well as from the provisions made. This Court, therefore, does not find any force in the submission of Mr. K. V. Shelat that the Court should undertake at this very stage to decide finally the meaning of the various provisions of the will and also to decide as to whether some part of such disposition was null and void. Still, however, this Court is required to answer prima facie the question as to whether the property in question is one belonging to an undivided family.
16. Based on commentary of learned Author Mr. Gaur on Transfer of Property Act, 11th Edition, at page 420, it was also submitted before this Court that the only meaning of the word "undivided family" can carry the following:
The essence of the matter, therefore, is that the house itself, should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house, and it is this attribute of the house which imparts to the family, its character of an undivided family. The members of the family may have partitioned all their other and joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling-house so long as they have not divided it amongst themselves.
17. He also invited attention of the Court to the commentary of learned Author B.B. Mitra on Transfer of Property Act, 16th Edition, page 275 where it is observed by the Author that undivided family means simply a family not divided qua the dwelling-house and has not divided it. It does not mean Hindu joint family or even joint family. The members need not be joint in mess. The members of the family may have partitioned at their joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling-house so long as they have not divided it amongst themselves. It is clearly stated that the words "undivided family" are not restricted to mean a family joint in status but include a family divided in status but undivided qua the property in question.
18. Reference in this connection is also made to the comments of learned Author C. L. Gupta, Volume-] on T. P. Act, where the author has observed that the factual position which emerges from the facts of the case, it shall have to be established that the property is of undivided family. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house, and it is this attribute which imparts, to the family, the character of an undivided family.
19. In the opinion of this Court, no useful purpose will be served at this prima facie stage to exhaustively refer to various comments expressed by learned authors on Section 44 of the T.P. Act. Even otherwise, the Apex Court has in the case of Dorab Cawasji (supra) very categorically and clearly stated as to what is to be understood by the words property belonging to an "undivided family" and has observed categorically at page 877 as under:
We are afraid that some notions of coparcenary 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 dwelling-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 of Section 44 of the Act.
20. The Apex Court has in no uncertain terms found that in the facts of the case before it the factual position was that the property was still an undivided family dwelling-house, possession and enjoyment whereof are confined to the members of the family. The stranger transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out. It is also observed by the Court that in the absence of any partition by metes and bounds qua the property, it shall have to be deemed to have been an undivided family property.
21. This Court, therefore finds that there is no substance in the submission of M/s. K.V. Shelat and B.J. Shelat that the property in question was not an undivided family house but that was property of absolute ownership of Dilipkumar Jayantilal Modi after the Will was executed. The fact that in fact under the provisions of the testament as well as codicil, the testator has clearly stated that it was a dwelling-house and that it was being jointly possessed and that after his death, four of the legatees shall have right/interest to enjoy the property subject to the terms and conditions stipulated by him. This finding is at this stage only tentatively recorded to answer the larger questions raised by M/s. K. V. Shelat and B. J. Shelat.
22. Mr. K. V. Shelat and Mr. B. J. Shelat also vehemently submitted before the Court that the facts before the Supreme Court in the case of Dorab Cawasji Warden (supra) were and are quite totally distinguishable from the facts of the present case because in the present case the land in question admittedly belonged to the society which was purchased by late Khemchand Modi in the year 1946 and he has put up construction thereon from his self-acquired fund and, therefore, it was his exclusive property which he has right to dispose of. There was no jointness of possession or interest so far as late Khemchand Modi is concerned. They submitted that nature of acquisition by late Khemchand Modi being absolute and exclusive, he has full authority to dispose of the property in the manner he liked and he has done so by a registered testament and the codicil. They further submitted that under the registered Will and the codicil, the ground-floor portion of the bungalow was absolutely bequeathed to Dilipkumar Jayantilal and, therefore, he was the absolute owner thereof with no restriction on his right to enjoy the property.
23. In my opinion, this submission is based on facts not well founded and shall have to be rejected firstly because they are read in isolation of the fact that the house was the dwelling-house belonging to an undivided family and was in fact used as dwelling-house by some of the members of the family of late Khemchand Modi. Secondly, the very distinct provision made in the Will about the enjoyment of the common chowk on the ground-floor and other passages to reach the cellar as well as the first floor and the second floor undoubtedly restrict the rights of the person in possession of the ground-floor as for the more beneficial enjoyment of the entire property, the jointness of possession with respect to at least those portions of the ground floor is very positively accepted even by the testator in his testament as well as in codicil. Thirdly, the testator has made his intention very clear if one simply refers to the provision of the testament dated 14th July, 1964 and that of the codicil dated 16th July, 1967 wherein it is clearly stipulated by the testator in clause (1) of the testament that excluding the rights to enjoy the chowk on the ground floor with the right of ingression and egression and with all rights to enjoy that chowk and the passage which leads to cellar and to the staircase and the first floor, the rest of the ground-floor was being bequeathed by him to Dilipkumar Jayantilal. It is, therefore, clear that the portion which was kept joint for the beneficial enjoyment of the entire ground-floor was not absolutely bequeathed to Dilipkumar Jayantilal and he was also not made the absolute owner of the open land, the water taps, kundis, lavatory, etc., which were to be remained of common ownership of all the legatees under the Will. This Court, therefore, shall have to prima facie hold that undertaking the task of finally constructing the Will by reference to various binding precedents of the High Courts and the Supreme Court that substantial portion of the ground -floor was in fact undivided and was joint for the beneficial enjoyment of the members of the undivided family and this tentative finding of this Court is further reaffirmed if reference is made to some of the provisions of the bye-laws of the Society.
24. It is an undisputed fact that late Khemchand Modi became the member of the Society on 30th June, 1939, and he was issued one share certificate of 5 shares dated 30th June, 1939. This original share certificate is produced in Civil Suit No. 1250 of 1991. The changes made in the share certificate from time to time are noted at the back of the share certificate and it appears that after late Khemchand Modi expired on 21st July, 1973, four legatees under the Will applied to the society jointly for transfer of share as well as share certificate in their names. This is a first step taken by all the four legatees including Dilipkumar Jayantilal which would prima facie show that they agreed to the joint owner of the share certificates as well as the plot of the land. He has never applied to the society for splitting the share certificate for his own portion of the bungalow in his own name. It is also not disputed that on 22nd April, 1980 transfer was made and recorded at the back of the share certificate wherein it is clearly stated that as undivided share is mutated or transferred and that entry is certified by the secretary of the society on 13th of May, 1980. This certificate has some evidentiary value which is to be examined and final finding is ultimately to be recorded after trial. The bye-laws of the society are also produced to the very Civil Suit No. 1250 of 1991 and reference to some of the bye-laws would prima facie show that in tenant ownership society, there is concept of dual ownership so far as land is concerned, the society remains the owner thereof and only the occupancy rights are transferred to the members and any transfer by member of his right/interest on plot is subject to the permission of the society. In fact, it is known as permitted transfer and it shall have to be kept in mind that Dilipkumar Jayantilal has agreed to transfer the undivided share in the plot along with his share in the share certificate to the name of four persons. Bye-law No. 11 stipulates that every member must hold at least one share in the society and bye-law No. 13 stipulates that no member of the society shall exercise the right of a member unless and until he holds not less than one fully paid share in the society. Bye-law No. 16 deals with transmission of interest and bye-law No. 17 deals with proceedings on death of a member. Bye-law Nos. 20 and 21 provide for selling of a share by one member to any other member. But, even for this purpose, previous sanction of the Committee of the society is needed and such registration of transfer is required to be registered under bye-law No. 21(2). Similarly, bye-law Nos. 66 and 67 make important provision that no member shall be a tenant of the society unless he holds at least five shares and that no dwelling offered on lease shall be taken by persons who are not members of the society unless no member is willing to take it. It is thus clear that prima facie the bye-law indicates that there cannot be internal transfer of one share by joint owners to another member without the previous sanction of the society and secondly such transfer even if sanction shall have to be registered on the record of the society. In fact, in the present case, the record of the society and the transfer effected in the share certificate go to suggest that the four legatees agreed to be owners of the undivided portion of the dwelling-house and prima facie, therefore, at this stage it is not possible for this Court to agree with the submission made by the learned Counsel Mr. K.V. Shelat and Mr. B.J. Shelat that Dilipkumar Jayantilal was the exclusive and full owner of the ground -floor of the bungalow with all rights of disposition.
25. In view of the above discussion, this Court is of the opinion that the prima facie finding of the trial Court that bungalow situated on plot No. 5 was a dwelling-house belonging to an undivided family is well founded and it is not permissible at this stage to hold that the said bungalow was not a dwelling-house or that it was not belonging to an undivided family.
26. Turning now to the various authorities cited by the learned Counsel appearing for the appellants, it must be at the outset stated that they are the authorities already cited and considered by the Hon'ble Supreme Court in the case of Dorab Cawasji Warden (supra) are cited before this Court to make good the submission advanced at the Bar. In fact, the Hon'ble Supreme has clearly confirmed the view of the Orissa High Court in the case of Udayanath Sahu v. Ratnakar Bej, reported in AIR 1967 Orissa 139 and having quoted the law stated by the Orissa High Court, the Supreme Court has stated that they respectfully agree that the said statement is the correct statement of 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. This Court need not, therefore, be referred to the reliance placed upon the other authorities of Orissa High Court or Allahabad High Court by the learned Counsel appearing for the appellants. In fact, it is not permissible for this Court. The Hon'ble Supreme Court in Para 20 of the reported judgment clearly referred to the decision of the Orissa High Court in the case ofBhim Singh v. Ratnakar, reported in AIR 1971 Orissa 192 and on facts in that case it was found that there was an amicable arrangement among plaintiff and defendants 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 situated 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 aforesaid fact situation and the judgment of the Division Bench of the Orissa High Court, the Hon'ble Supreme Court referred to the principles laid down by the Hon'ble Justice Ranganath Misra (as he then was) at page 201 and found that the said decision was an authority on the question whether the enjoyment of ascertained separate portion of the common dwelling-house and the alienee taking possession made any difference and they also found that in fact the earlier decision in Udayanath Sahu (supra) was stated with the approval of Ranganath Misra, J. In fact, therefore, there is no inconsistency between the statement of law made in Udayanath Sahu (supra) and Bhim Singh (supra) and, therefore, I do not find it is necessary for this Court to refer to the authorities cited in this behalf at the Bar which are fully considered by the Supreme Court and which are found to have been either distinguished or not laying down the correct law. The correct position of law laid down by Orissa High Court is accepted by the Supreme Court and the same is laid down in Para 21 of the reported judgment.
Dwelling-house:
27. The learned Counsel appearing for the appellants further strenuously urged before this Court that the house in question cannot be said to be "dwelling-house" within the meaning of Para 2 of Section 44 of the Transfer of Property Act because in fact the house was divided and was hot being used as dwelling-house by all the members of the undivided family and that some of the members of the family were using the house and, therefore, it cannot be said to be a dwelling-house belonging to an undivided family. In order to make good the aforesaid submission, the learned Counsel appearing for the appellants very vehemently contended before this Court that the house in question cannot be said to be a dwelling-house of undivided family because in fact by the testament in question the family was divided and the house itself was divided and the ground-floor portion of the house had fallen to the share of Dilipkumar Jayantilal.
28. I do not find any substance in the aforesaid submission for the simple reason that even the meaning of the word "dwelling-house" is gone into in detail by the Hon'ble Supreme Court in the case of Dorab Cawasji Warden (supra), wherein the Hon'ble Supreme Court has observed as to what can be said to be a "Dwelling-house" in the context of Para 2 of Section 44 of the Transfer of Property Act. The fact that the house in question is a multi-storeyed building or that it is divided into cellar, ground-floor, first floor and the second floor or that, one can have access to the first floor without going to the ground-floor are not relevant at all to the purpose of deciding the question as to whether the house in question is a dwelling-house belonging to an undivided family.
29. In the case oiBhim Singh (supra) in the peculiar facts which existed as found by the Orissa High Court that by an amicable arrangement among plaintiff and defendants 1 and 2 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 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 aforesaid fact situation, the Hon'ble Supreme Court observed that Ranganath Misra, J. (as his Lordship then was) held at page 201 of the report that even in such state of things, when houses were situated at a distance in a large homestead, if a member of the family transfers his share in the dwelling-house to a stranger, Para 2 of Section 44 of the Transfer of Property Act comes into play and the transferee does not becomes 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 of Section 44 is to prevent the intrusion of 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. From the factual position as has been determined before the Division Bench of the Orissa High Court as well as before this Court, it becomes prima facie clear that the property is still an undivided dwelling-house in possession and enjoyment of all the members of the undivided family and, therefore, the stranger transferee being debarred by law from exercising right of joint possession, cannot seek relief of joint possession nor could they be permitted to be in possession, if unauthorisedly by clandestine method they have already taken over possession. The meaning of the word "dwelling-house" is ascertained and if that meaning is very clear, in my opinion, it is by way of prima facie finding stated that the house in question can be said to be a dwelling-house belonging to an undivided family and that one cannot escape, prima facie conclusion at this stage that the house in question was a dwelling-house and simply on the supposition that the house was divided allegedly by the testator by the testament in question amongst the heirs and legal representatives stated by him in his testament the house has not ceased to be a dwelling-house.
30. Secondly, Mr. K.V. Shelat and Mr. B.J. Shelat very vehemently submitted before the Court that there was no parting with possession of a portion which was not in exclusive possession of Dilipbhai Jayantilal (the transferor) and therefore, there is no question of any interference by this Court at this stage as even the portion on the ground-floor exclusively meant for beneficial enjoyment of all the undivided shares cannot be said to have been parted with by the transferor in question. It was, therefore, submitted that it was too premature at this stage for this Court to grant the mandatory relief requiring the transferee to vacate the premises as the open enjoyment of the portion of the ground-floor, which are meant for beneficial enjoyment of all the members of the undivided family, is not put in exclusive possession of the transferee. In fact, the submission has no merit to stand because both the Courts have concurrently found from the attempts made by the appellant to get the property transferred to their names that in fact in every systematic diabolical manner, the alleged transferee tried to take over the possession in a hush-hush manner as was found by the Hon'ble Supreme Court and no attempt was missed to see that the transaction in question is described as a transaction of a bona fide purchaser for value without notice and that the transferee in question was simply a bona fide purchaser. In fact, the following steps taken by the transferee which are prima facie at this stage can be seen from the document produced before this Court would go to show that every attempt was made by the transferee to take over possession and thereafter to safeguard such possession by describing the possession as firstly that of simply a lessee and secondly thereafter as possession of banakhat holder under a supplementary registered agreement with a right to purchase the ground-floor from the transferor Dilipbhai Jayantilal. If this stepwise action of the transferee and the transferor are noticed, one cannot miss the underlying intention behind the transaction and the clandestine manner in which the transaction was tried to be implemented by misleading all concerned including even the holders of undivided share in the enjoyment of the property, namely, the first floor, the right to construct over the first floor given to Pannalal Khemchand Modi and a clear attempt to oust everyone from possession. The following circumstances are worth noting which are also noted by the trial Court:
(i) At the initial stage, immediately after alleged transfer, the name of the father of the transferee, who unfortunately, happens to be the Deputy Superintendent of Police, by name-plate was displayed on the ground-floor and police was found to be protecting the house. It is required to be noted that, in fact, Himatsinh Jadeja was not the transferee and yet display of his name-plate was solely with a view to mislead the beneficial interest of the rest of the members of the undivided family and that the sole reason why the first suit came to be filed by Pannalal Khemchand Modi against the said Himatsinh Jadeja, the father of the transferee. It was for the first time in the written statement filed in such suit the fact was revealed that he was not the transferee but his son Mahipatsinh Himatsinh Jadeja was the transferee and that he ought to have been joined as necessary and property party. This very act of the appellants-transferee in misleading the persons holding the beneficial interest in the dwelling-house of the undivided family, is sufficient to, prima facie, record a finding that from the very first stage there was an attempt to transfer the interest of a member of an undivided family in a dwelling-house against the interest of the members of the undivided family.
(ii) Immediately after the second suit was filed by Pannalal Modi against the person really claiming to be the transferee, namely, Mahipatsinh Himatsinh Jadeja, the present appellant and the son of said Himatsinh Jadeja, further dubious and diabolical method adopted by said Mahipatsinh Himatsinh Jadeja, established that there was a clandestine attempt on the part of the transferee to legalise the entire transfer in his favour and to take over possession exclusively and to enjoy the same exclusively by claiming to be the banakhat holder in possession of the ground-floor portion of the bungalow in question.
(iii) If chronological events are noted and the stage at which the different transactions are entered into is also noted, the conclusion reached by the Supreme Court that the entire transaction was in hush-hush manner by the transferee cannot be ruled out in the present case also.
(iv) The transferee Mahipatsinh Himatsinh Jadeja came out with a case of being the lessee in possession at the rent of Rs. 900/- per month and produced various rent receipts of payment of rent in cash, i.e., the rent of Rs. 900/- per month. The said position of his being the tenant of the premises in question is revealed and stated on oath for the first time in the suit and various steps taken by him in order to justify his possession are also worth noticing.
(v) Having known that it was difficult to get the transfer of the property legalised unless provisions of Para 2 of the Section 44 of the T. P. Act were violated, first attempt was made when the public notice was issued by the Solicitors inviting objections to Dilipbhai selling his portion in possession of the property. In such notice which is issued by the Solicitors firm the factum of the transferee having been put into possession as lessee and is occupying the premises already as lessee is not disclosed and very advisedly because such disclosure would be fatal to the final supplementary agreement which the transferee wanted to enter into.
(vi) Prior thereto on 2nd January, 1991, registered supplementary agreement is already entered into and objections were invited by the Solicitors. The contents of the public notice and the Solicitors' certificate observing silence about the nature of possession and about the nature of the right of the transferee over the property are very obvious to notice. Solicitors have advisedly stated that pursuant to the notice issued by them in the newspaper, they have not received any objections from any party and that therefore, the certificate was issued. It may be noted that along with the written statement in the first suit, number of documents were produced by defendant No. 2 and there reference was made to the alleged tenancy rights as well as to the banakhat rights and the rights likely to be derived by supplementary registered agreement. Reference was also made to various rent receipts and the rent receipts of payment of rent in cash were also produced, but at that stage no rent note was produced before the trial Court which came to be produced for the first time before this Court. By that time, the title clearance certificate is already issued which unfortunately makes no reference to tenancy rights of Mahipatsinh Himatsinh Jadeja. Stamp paper for. the rent note is purchased by this very Solicitor and the rent note is also drafted and cleared by this very Solicitor. The Solicitor is being very clever has noticed that the provisions of Para 2 of Section 44 were likely to be violated and therefore, this dubious devise was adopted firstly to transfer the interest in the property and then to justify it as creation of tenancy simpliciter and that person claiming to be in possession as tenant only. In fact, the rent note dated 1st of April, 1990 was already in existence by then and the public advertisement is issued on 4th of January, 1991 and it was actually printed on 6th January, 1991. While prior thereto rent note was already executed by the Solicitor which was on the stamp paper which was purchased by him and which was dated 1st of April, 1990 and he deliberately suppressed the fact that in fact the person claiming to be the transferee is already in possession of the property as tenant thereof under the rent note duly executed. This omission was deliberate and non-production of rent note at the earlier stage was also with a view to see that the Solicitor is not put into difficulty, one cannot escape the conclusion that the Solicitor has unfortunately participated in the clandestine deal and has helped the transferee to get the transaction legalised which otherwise could not be legalised unless the provisions of Para 2 of Section 44 of the T. P. Act are violated. After disclosure in the first suit of the fact that the transferee was not Deputy Superintendent of Police but his son Mahipatsinh Himatsinh Jadeja, the first suit became infructuous, the injunction and the mandatory order obtained therein also became infructuous and immediately thereafter the second suit was filed and the Court Commissioner was got appointed to prepare the note on the spot existing situation. It became clear from the report of the Court Commissioner that ground-floor portion was vacant and no one was occupying the ground-floor and that from the windows which were open, it could be seen that the house was not being used at all and was in a bad shape. This would go to prove that in fact no opportunity was left to the plaintiff to take action as another person was inducted into possession as tenant in question. In fact December 1990 to April 1991 electric burning of the house in question is shown to be nil, which is consistent with the finding of the Court Commissioner that the property was not put into use by the ground-floor occupant. The plaintiff was led to an unfortunate situation of filing the second suit against the son and from the second suit automatically the entire clandestine attempt to get the transfer legalised came to light and the rent note, banakhat and supplementary agreement and receipt of registration are the telling circumstances which would establish that the transaction in question was sought established in a very clandestine method and solely with a view to reduce the interest of whole of undivided share in a dwelling-house. Neither of the aforesaid documents show that the address of Mahipatsinh Himatsinh Jadeja as that of the address of the suit premises coupled with the fact that the house was in fact not being used at all by Mahipatsinh Himatsinh Jadeja which is established by the various electricity consumption receipts produced. At the level of trial Court, it is established prima facie that such a transferee who is trying to mislead everyone including the Court cannot have any place of sympathetic consideration more particularly when no stone was left unturned to achieve clandestine objective of fulfilling the transaction by hook or by crook and by entering into possession of the property in blatant violation of Para 2 of Section 44 of the Transfer of Property Act and all these being achieved unfortunately with the assistance of Solicitors. As is found by the Supreme Court in the case of Dorab Cawasji (supra), the transferee from the very beginning knew that the transferor had only a limited interest in the property and that he has only limited right. In order to avoid the difficulties that may arise the Solicitors helped the transferee in firstly getting executed the rent note on a stamp paper purchased by the Solicitor firm where on the rent note was written and the terms and conditions of the rent note are in fact known to the Solicitors. The Solicitors, however, kept mum about it and did not utter a word about it in the public notice issued by them as well as in the title clearance certificate issued by them stating that the property was already put into possession of the tenant under the rent note executed by the transferor. This omission itself was sufficient to prima facie infer that there was from the very beginning attempt on the part of the transferor as well as the transferee to escape from the provisions of Para 2 of Section 44 of the T. P. Act. Firstly, the rent note was sought to be executed which cannot be said to be a genuine one as the rent receipts allegedly produced are of the subsequent dates. Secondly, the rent receipts only show the payment in cash and thirdly there is no earthly reason to show as to why the transaction of rent was not disclosed by the tenant at the first instance. It is thereafter that the title clearance certificate is issued by the Solicitor who advisedly he kept mum about the person in possession of the premises or do not state anywhere in the public notice that the premises are being occupied by the tenant on the ground-floor. The immediate execution of the supplementary banakhat thereafter would go to establish that the entire transaction was sought to be achieved in a hush-hush manner and even the supplementary registered agreement to sell was also hurriedly executed in a hush-hush manner keeping the entire transaction secret from the plaintiff. The alleged purchaser or banakhat holder was himself put into possession or inducted into the possession of the premises in a manner which clearly suggests that the transferee was attempting to forestall the situation and to gain an undue advantage in a hurried and clandestine manner defeating the right of the plaintiff to go to the Court of law and to obtain appropriate relief. It is in the aforesaid circumstances that it shall have to be held, as is held by the Hon'ble Supreme Court that the appellants in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit filed by saying that old cause of action under Section 44 of the T.P. Act no longer survived in view of their taking possession. The Court in the aforesaid situation proceeded to consider the circumstances and mandatory injunction was granted by the Court and in such circumstances it is but just and necessary that similar directions shall have to be issued to the transferee to undo what they have done without the knowledge of the plaintiff to compel the purchaser to deny the right to joint possession and direct him to hand over vacant and peaceful possession of the ground-floor portion of the bungalow. It is in the aforesaid circumstances that the prima facie conclusion reached by the trial Court and the mandatory injunction granted by the trial Court following the aforesaid binding decision of the Apex Court in the case of Dorab Cawasji Warden (supra) shall have to be upheld and even the mandatory part of the injunction which is granted by the trial Court shall have to be confirmed.
31. The circumstances under which the interim mandatory injunction can be granted by the Court also considered by the Apex Court in the aforesaid decision and the present case is one where all ingredients for grant of interim mandatory injunction are satisfied to the satisfaction of this Court and the trial Court has also recorded such satisfaction and in view thereof no irreparable injury is likely to be caused to the defendants but it is likely to be caused to the plaintiff if the mandatory injunction as prayed for is not granted. The balance of convenience is also in favour of the plaintiff for the grant of mandatory injunction and therefore also the mandatory injunction granted by the trial Court requiring Mahipatsinh Himatsinh Jadeja to vacate the ground-floor portion of the suit bungalow shall have to be confirmed and the said mandatory injunction is also confirmed.
32. In the Appeal From Order which is preferred by Dilipkumar Jayantilal through his Advocate Mr. M. B. Gandhi, the transferor of the suit premises, no new contentions, legal or factual are raised and the very contentions which are raised by transferee Mahipatsinh Himatsinh Jadeja are also repeated both in the memo of Appeal as well as at the time of hearing by Mr. M. B. Gandhi. 1 do not find any substance in the submission of Mr. M. B. Gandhi that Section 44 if properly construed would not be applicable to the facts and circumstances of the present case and that all ingredients of Section 44 were not satisfied. In my opinion, once the prima facie finding is reached that the house in question is a dwelling-house belonging to an undivided family, the prima facie finding reached by the trial Court that second paragraph of Section 44 operates is just and proper and shall have to be confirmed and in the present case also it is found by the trial Court that the house in question is a dwelling-house belonging to an undivided family and, therefore, the directions identical to those which were issued by the Hon'ble the Supreme Court in the case oiDorab Cawasji Warden (supra) must necessarily follow in this case also. The facts in this case are not in any way distinguishable from the facts of the case before the Apex Court as tried to be submitted before this Court by Mr. M. B. Gandhi and on the contrary from the facts pleaded and established and the detailed evidence documentary as well as in the nature of affidavit produced by the parties, it is established that the property in question was an undivided family dwelling-house and the members of the family have a right to enjoy the possession thereof to the exclusion of others because the object of second paragraph of Section 44 of T. P. Act is to avoid the entry of an intruder into the dwelling-house and to provide privacy to the rights of the members of the undivided family. That very object of protecting the right to privacy and not to permit any intruder into the dwelling-house shall have to be achieved and in order to achieve the said objective when prima facie findings are reached by the trial Court which I confirm the judgment and order of the Court below is required to be confirmed and even the appeal preferred by the transferor - appellant Dilipbhai Jayantilal shall have to be dismissed also on the very ground on which the appeal preferred by the transferee is dismissed by this Court.
33. In the result all the Appeals From Order preferred by the transferee being Appeal From Order Nos. 300 to 303 of 1995 and Appeal From Order preferred by Dilipkumar Jayantilal being Appeal From Order No. 415 of 1995 are dismissed with costs and the interim relief granted earlier is hereby vacated and the mandatory injunction granted by the trial Court is hereby expressly confirmed and the rest of the injunction which are already granted are also confirmed.
34. At this stage Mr. K.V. Shelat and Mr. B.J. Shelat for the appellants pray for _slay of the judgment and order of this Court to enable the appellants to have further recourse of law. The request being just and proper is granted for a period of eight weeks from today. The interim order that was passed by this Court will operate and the same shall expire automatically at the expiry of the period of eight weeks from today on condition that the appellants and Dilipkumar Jayantilal Modi shall maintain status quo as on date.