Bombay High Court
Kishore Bajaj vs Dorab Cawasji Warden And Ors. on 30 September, 1988
Equivalent citations: 1989(1)BOMCR99
JUDGMENT H. Suresh, J.
1. This is an appeal by the original defendant No. 4 against on order of interim mandatory injunction which virtually ousts him and his wife from the suit premises, by a learned Judge of the Bombay City Civil Court, on a notice of motion taken out by the plaintiff as against the defendants.
2. The relevant facts for the purpose of deciding this appeal are as follows:
One Cawasji Dorabji Warden and his wife Banubai and their son Dorab, the plaintiff herein, purchased under a registered deed of conveyance dated January 12, 1934 an immovable property then consisting of land admeasuring about 1,000 square yards. After the land was purchased, a building was constructed thereon in the same year. The building is the subject matter of these proceedings. By a declaration dated April 11, 1939 made by the said Cawasji Warden and Banubai Warden, they declared that the plaintiff held beneficial and undivided share in the said land and the building as joint tenant along with them. By another conveyance dated May 12, 1943 the said Cawasji and his wife Banubai and their other two minor sons Rustom and Sohrab purchased another immovable property. On June 9, 1946 the said Banubai died. On March 12, 1951, Dorab, the plaintiff, had addressed a letter to his father Cawasji indicating that he would like to retain his share separately and not jointly. This letter is of considerable importance. The relevant portion of the said letter is as follows :
"At present the conveyance is in the joint names of yourself and mine and to either of us or of yourself and mine to either of us or survivor so that in the event of the death of either of us any of the survivor becomes the sole owner. We both wish that the conveyance should not stand as it does. It should be so altered by a small additional declaration or otherwise that either of us should retain his share separately but not jointly and that on the demise of either of us the share of the deceased should go to his heirs or either of us should be free to dispose of his share in the manner he chooses."
This was accepted. Accordingly, on August 23, 1951 an agreement was entered into between the father and the son. The agreement has been registered. The relevant portion of the said agreement is as follows :
"And whereas the parties hereto now desire to sever their joint tenancy and henceforth to hold the said piece of land and the building thereon as tenants in common;
Now it is hereby agreed by and between the said Cawasji Dorabji Warden and Dorab Cawasji Warden that they and their respective heirs, executors, administrators and assigns shall henceforth hold the piece of land particularly described in the Schedule hereunder written and the building standing thereon as tenants in common in equal undivided half shares."
On December 15, 1951 Sohrab attained the age of majority. By a deed of exchange dated April 16, 1952 between Cawasji and Sohrab, Cawasji granted unto Sohrab, his undivided half share in the suit property in its entirety being the property referred to in the said conveyance dated January 12, 1934 in exchange of Sohrab releasing unto the said Cawasji of his undivided share's right, title and interest in the property comprised in the conveyance dated May 12, 1943. On execution of the said deed of exchange the said Sohrab occupied the entire ground floor of the suit building along with one garage and half of the compound. It was, there, on the ground floor of this building Sohrab got married in the year 1968. Defendant No. 1 is the widow of the said Sohrab and defendant Nos. 2 & 3 are the minor children of the said Sohrab. Sohrab died on October 12, 1976. On December 31, 1986 defendant No. 1 for herself and on behalf of defendant Nos. 2 and 3 entered into an agreement to sell to defendant No. 4, the said undivided half share, in the right title and interest in the entire immovable property being the property referred to in the conveyance dated January 12, 1934. On April 16, 1987 the deed of conveyance was executed and it is the case of the defendants that he was put in possession of the said ground floor of the building. On April 18, 1987, the plaintiff filed this suit as against the defendants and obtained an ad interim injunction which restrained defendant Nos. 1 to 3 from parting with possession of the ground floor to defendant Nos. 4 and 5. Defendant No. 5 is said to be the builders. This order of injunction was thereafter modified on April 22, 1987 whereby the learned Judge took note of the fact that defendant No. 4 had already entered into possession pursuant to the conveyance. However, he appointed a Commissioner to visit the building and to make a report in respect of the articles and things lying on the ground floor of the said building. Accordingly, the Commissioner visited the site and he has made a report.
3. Thereafter affidavits were filed. The matter was heard and the learned Judge by his order dated July 4-6-1987 granted interim mandatory injunction, which restrained defendant No. 4 from remaining in possession and enjoyment of the said ground floor. However, relying on a similar order passed by Pendse, J., in a certain High Court proceeding he gave liberty to defendant No. 4 to occasionally enter the suit property to enquire that anyone else other than defendant No. 4 and his family members is entering into the possession of the ground floor of the building and the garage which defendant No. 4 had purchased. It is against this order defendant No. 4 has preferred the present appeal.
4. The learned Judge in a rather lengthy order containing several observations some of which are patently incorrect, gave a finding that the said building is a family dwelling house, and that the family of the plaintiff and that of the said Cawasji at the material time were undivided family qua the entire suit property, and that the family of the plaintiff and the family of Sohrab at the material time were undivided qua the suit property, and that the case would fall within the scope of second paragraph of section 44 of the Transfer of Property Act and that, therefore, defendant No. 4 and his wife as strangers, were not entitled to joint possession of the said family dwelling house. When it was pointed out that ordinarily interim mandatory injunction is not granted till the suit is decided, the learned Judge takes note of the fact that mandatory order at an interim stage can only be passed in the "rarest of the rare cases", and yet he granted such an order mainly on the ground that defendant No. 4 and his wife chose to complete the conveyance without the consent of the plaintiff and thereby they themselves invited this litigation and that, therefore, this is a fit case wherein mandatory order at the interim stage should be granted "to meet the ends of justice". Needless to say that this part of the order is patently wrong as this is neither a rarest of rare cases nor is there any consideration of balance of convenience or urgency as to why such an interim mandatory order should ever be granted. The question involved is one of legal position and the notice of motion is at an interim stage. Defendant No. 4 and his wife have committed no crime nor is there any such inconvenience as would make it impossible for the plaintiff to live in that house till the rights are determined. Just because defendant No. 4 and his wife were advised to complete the conveyance, it cannot be said that an interim mandatory order could have been granted as has been done by the learned Judge.
5. The fundamental error on the part of the learned Judge is that he decided the motion as if he was deciding the suit finally. He also did not take into account very many averments made in the affidavit which would prima facia indicate that as far as the ground floor was concerned it had always remained divided thought the building was one and it was the family of Sohrab who had throughout resided separately from 1952 on the ground floor and that there was no evidence whatsoever to indicate that the plaintiff and his family members had ever resided on the ground floor of the said building with the said Sohrab or that since the time Sohrab came to reside on the ground floor, the plaintiff had ever treated the ground floor as a part of his family house. What I wish to emphasise is that this is a matter which requires evidence on either side as to what extent the ground floor could have ever been considered as a family dwelling house and the matter could not have been decided at the stage of the notice of motion as has been done by the learned Judge.
6. Mr. Tulzapurkar relying on a Privy Council case of Wazir Sundar Singh v. Mt. Farida, A.I.R. 1920 Privy Council 132, submitted that while it is difficult to form a confident judgment as to on which side the truth lies, the best thing is to not to interfere with the judgment of the trial Court. He also relied on the case of Khalil Ahmed v. Tufelhussein Samasbhai, and pointed out that where two views are possible and the trial Court has taken one view which is a possible and plausible view, merely because another view is attractive the Court should not interfere with the finding of the trial Court. He then submitted that ordinarily when a trial Court exercises its discretion and grants an injunction, the appeal Court will not interfere unless it could be held that the exercise of discretion by the learned Judge was against law or it was perverse.
7. I have no quarrel with any of these propositions advance by Mr. Tulzapurkar. I have no hesitation in saying that the learned Judge was wholly wrong when he granted interim mandatory injunction which will have the effect of virtually deciding the suit without a trial. Similarly I will have no hesitation in holding that the learned Judge did not take into account very many facts which were relevant for the purpose of exercising his discretion at the interim stage. He only took note of the fact that under the conveyance and on the document the property had not been divided and that was the song of his whole judgment. He failed to take note of the fact of the actual situation as to how for years together the parties had never lived together as one family and the concept of family house itself was never in existence.
8. Mr. Abhyankar in particular drew my attention to the affidavit-in-reply dated June 13, 1987 filed by defendant No. 1 wherein she has stated as follows :
She has stated that the suit property has been all along separate and divided in all respects. The two families are living separately and are divided in all respects from the very beginning. The ground floor together with one garage has always been in exclusive use, occupation and possession by defendant Nos. 1 to 3. The plaintiff has been in use and occupation of the entire first floor and one garage of the said property. The compound of the said property has also been divided half and is used in the same manner since the very beginning. Defendant Nos. 1 to 3 have a separate Mali and he would clean only the portion which was in front of defendants' ground floor, i.e. the left hand side portion of the compound while the plaintiff had separate Mali who was cleaning the other portion. The water and electricity meters have always remained separate for the first floor and the ground floor. There are separate water tanks on the terrace for each of the party though of course the terrace is used in common. She has asserted that in fact there was a physical division of the entire property as aforesaid.
9. The plaintiff in his rejoinder, however, denies that from the beginning the ground floor and one garage had been in the exclusive use and occupation of Sohrab but he admits that as from 1968 when Sohrab got married, the plaintiff and his family members occupied the first floor while Sohrab and his wife remained on the ground floor. Of course he says that this division was for the sake of convenience, and the dwelling house continued to be joint and undivided. He admits that there are separate water tanks for the ground and first floor. He admits that there are separate water and electricity meters. He does not deny the existence of separate Malis. His only case is that he is occupying the first floor for the sake of convenience and there has never been any division or partition of the property by metes and bounds.
10. It is true that there is no document showing that the house has actually been divided by metes and bounds. But we are at a prima facia stage. If, prima facia, the facts indicate that throughout the parties have lived separately and there has in fact been a severance between the two qua the property, is it possible for the Court to give a positive finding that entire house could be a family dwelling house so as to invoke the prohibition contained under the second part of section 44 of the Transfer of Property Act ?
11. In this connection one has to take into account the effect of the said letter dated March 12, 1951 which at once shows a desire on the part of the plaintiff to sever the joint family status. He himself desires that the original conveyance dated January 22, 1934 should not stand as it does. He further desires that each of the parties should retain his respective share "separately but not jointly" and that each of them should be "free to dispose of his share in the manner he chooses". This is followed by an agreement dated August 23, 1951, whereby this desire was given effect to and both, Cawasji and the plaintiff, agreed that as from that date they would held the property as "tenants in common in equal undivided half shares". It is by virtue of this agreement Cawasji exchanged his portion of the property with that of Sohrab's share under the other conveyance dated May 12, 1943 as evidenced in the deed of exchange dated April 6, 1952. What is significant is, to this document the plaintiff is not a party at all. In other words, this deed of exchange took place without reference to the plaintiff and solely by Cawasji as if the said portion belonged to him absolutely. It is the case of defendant Nos. 1 to 3 that it is pursuant to this deed of exchange Sohrab came to occupy the ground floor, a garage and a part of the compound exclusively as the owner of the half share of the property. Mr. Abhyankar submitted that these documents clearly indicate the severance of status and it is sufficient to hold that there was a partition of the property. He further submitted, relying on the case of Appovier v. Rama Subba Aiyan, X1 Moore Indian Appeals 75 that if the co-owners agree among themselves with regard to a particular property, that it shall henceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and each member has henceforth a definite and certain share in the estate, which he may claim to receive and enjoy in severalty, although the property itself has not been actually severed and divided. The relevant observation in this behalf is as follows :
"Certain principles, or alleged rules of law, have been strongly contended for by the Appellant. One of them is, that if there be a deed of division between the members of an undivided family which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, that deed is ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds.
Their Lordship do not find that any such doctrine has been established; and the argument appears to their Lordship to proceed upon error in confounding the division of title with the division of the subject, to which the title is applied."
There is a further observation and it reads as follows :
"Then, if there be a coversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by the de facto actual division of the subject matter. This may at any time be claimed by virtue of the separate right."
12. Mr. Abhyankar then drew my attention to the case of Girijanandini v. Bijendra Narain, to submit that partition consists in defining the shares of the owners in the joint property, and actual division of the property by metes and bounds is not necessary to constitute partition.
"Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family : it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally, intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members : the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances."
Therefore, it is not possible for anyone to give a finding that there has been no partition between the parties at all. This question can only be determined on evidence and on a review of all the attending circumstances at the time of the trial.
13. Mr. Abhyankar relying on the case of Gotiram Nathu v. Sonabai, 71 Bom.L.R. 165 pointed out that partition is not an exchange. Right of partition is an incident of property held in joint tenancy or tenancy in common and that partition can be made orally.
14. There can be no argument that defendant Nos. 1 to 3 would in any event be entitled to dispose of their share even though undivided under the first part of section 44 of the Transfer of Property Act. The only limited question that is relevant for the purpose of this notice of motion is whether defendant No. 4 being a stranger to the family be allowed to be in joint possession with the plaintiff, if what is sought to be conveyed to defendant No. 4 is a family dwelling house. It is here, the second part of section 44 of the Transfer of Property Act becomes relevant. The learned Judge gave a finding that this is a dwelling house of the family. But as I said, the learned Judge did not take into account the various averments made in the affidavit of the defendants to the effect that assuming this was a family dwelling house, the said family dwelling house had stood divided, in any event, from 1968 onwards. Therefore, this notice of motion could have been decided only on the question of balance of convenience and not on any other ground. Unfortunately, in this matter the learned Judge did not deal with this aspect of the matter at all. Mr. Tulzapurkar pointed out that the question of balance of convenience was not argued before the learned Judge. I am, however, not prepared to say that the question of balance of convenience was given up by any of the parties. Even other wise, in law, when the learned Judge grants interim injunction it is too elementary to know that he must take into account all the three relevant ingredients for the said purpose, viz., whether the plaintiff has made out a prima facia case and whether the plaintiff would suffer irreparable damages if any injunction is not granted and whether the balance of convenience is in favour of the plaintiffs. An equitable relief is granted on the basis of equity, good conscience and justice, and not on the basis of a mere title as such. Assuming that the plaintiff has made out a prima facia cast still, the Court cannot grant an injunction if on the other two counts the plaintiff has no case whatsoever. The best course in such circumstances would be not to grant any relief to the plaintiff but to have all the issues decided in the suit itself. It is here, the learned Judge's approach is fundamentally wrong.
15. Mr. Tulzapurkar appearing for the plaintiff submitted that this house has not been divided and this is the house in which plaintiff's father and mother were living and that this is a family dwelling house. He, therefore, submitted that till the house is divided by metes and bounds it is not possible for a stranger to be inducted into this house. He drew my attention to the case of Bhim Singh v. Ratnakar, A.I.R. 1971 Orissa 198 and pointed out that even though the co-owners were living separately and had already separated their residence, each living in a different house but under one homestead, could be considered as one and in that event, that homestead becomes a dwelling house and no stranger could be allowed to be in possession of the same. He submitted that in fact such joint possession would be illegal and the Court cannot countenance or foster illegal possession. He also relied on a case of Uma Shankar v. Mt. Dhaneshwari, for the same proposition. But, in both these matters the emphasis is on the undivided character of the house and this is what Misra, J., in the case of Bhim Singh v. Ratnakar, A.I.R. 1971 Orissa 198 (supra) has said...
"The members need not be joint in mess. 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."
In both these matters the Court gave a finding that the structures standing on the homestead plot constituted one dwelling house of the undivided family. That finding was given at the time of the final hearing of the suit and after taking into account all the evidence on either side. Referring to the object of second part of section 44 of the Transfer of Property Act, Misra, J., said as follow :
"The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger."
So also in the earlier judgment the Court said...
"The principle underlying section 44 is that it is inequitable to permit a stranger to intrude himself upon the privacy of a joint Hindu Family residence. The question in such a case, that the stranger purchaser has been put in amicable possession by his vendor only, but without the consent of the other members of the undivided family, who are affected by the sale, or that he has taken forcible possession of the undivided land, and is in joint possession thereof by force, is, in my opinion, immaterial. In either case the stranger purchaser, who is a defendant to the suit of the members of the joint family, is liable to be ejected for the simple reason that he is not entitled to claim joint possession or other common or part enjoyment of the house belonging to an undivided family."
In this case the stranger had taken forcible possession and he was asked to give up possession by an ejectment decree for possession. Similarly, in the latter case the transferee-defendants also had taken forcible possession and the trial Court had passed an ejectment decree and observed that the remedy of the stranger-purchaser is only one of partition.
16. Though, ultimately, if it is held in the present case that it was an undivided dwelling house, the manner of taking possession would not make any difference. But, in my view, till such time the Court decides that question, if the stranger is put in possession amicably, the question of granting interim injunction restraining the stranger from remaining in possession must necessarily depend upon the question of balance of convenience. In the present case before me, it is not admitted by the defendants that the house had remained undivided. That question is yet to be decided at the time of the final hearing of the suit. There is no evidence from the plaintiffs that they have ever exercised their right to live on the ground floor of this building at any time from 1968. There is no evidence of inducting any stranger into the plaintiff's house. It is only on the basis of a technical contention that the house as such has not been divided by metes and bounds under any document, the plaintiff is asserting that defendant No. 4 and his wife should not remain in possession of the ground floor of the suit building. It is here the plaintiff must make out such a case of unbearable hardship or inconvenience or intrusion of privacy of breach of peace, and in the absence of any of these elements, no injunction can be granted, as that will have the effect of prejudging the case before trial.
17. Mr. Tulzapurkar drew my attention to the case of Sivanu Thevar v. Omaiyourubhagam, A.I.R. 1930 Madras 560 and pointed out that the expression 'undivided family' means undivided qua the dwelling house in question and not to their status as such. In other words, he submitted that it is possible that they will be living separately and may be having separate mess and living as separate families but as far as the property is concerned, they will still be undivided. Then in such a case, the second part of section 44 of the Transfer of Property Act which is somewhat akin to section 4 of the Partition Act would apply. There is no quarrel as far as this proposition is concerned. The purpose of section 4 of the Partition Act as also the purpose of second part of section 44 of the Transfer of Property Act is to prevent a transfer of a member of a family an outsider, from forcing his way into the dwelling house in which other members of the transferor's family "have a right to live". In the present case, the evidence shows that the parties have always lived separately and there is nothing to indicate that the plaintiff had ever expressed a desire to treat this ground floor of the building as part of his house and that he has a right to live. In fact, in view of the deed of exchange dated April 16, 1952, it is possible for one to contend that as far as the plaintiff is concerned he had no right whatsoever in respect of this part of the house. The plaintiff never belonged to the "transferor's family". I am indicating all these aspects of the matter only for a limited purpose that it is not possible for the Court to decide this question on a mere prima facia title of the parties. The Court at this stage must necessarily go into the question of balance of covnenience and it is only on that basis the plaintiff, if he makes out a case, can get an interim relief of ousting the stranger altogether without a trial. Mr. Tulzapurkar submitted that to permit defendant No. 4 to occupy the ground floor, being in contravention of the second part of section 44 of the Transfer of Property Act, would be illegal. Therefore, he submitted that the Court could have granted injunction at this stage. I am not prepared to accept this submission of Mr. Tulzapurkar. That is prejudging the matter. The Court has yet to decide whether this house is an undivided house or not. It is only the bare assertion of the plaintiff that for the sake of convenience he has always resided on the first floor. That has been denied by the defendants. Convenience is not the test. The test is, is that your home? If so, you would not want a stranger in your midst. That is the principle of the second part of section 44 of the Transfer of Property Act. It is based on equity, good conscience and justice and not on any technical view of the matter.
18. Now, to the order passed by Pendse, J., on August 21, 1986 in Notice of Motion No. 937 of 1986 in a certain suit filed on the Original Side of the High Court. It is this judgment which has considerably influenced the learned trial Judge while granting the relief as asked for by the plaintiff. It is this judgment which Mr. Tulzapurkar has mainly relied upon, in support of his contention and to say that if the learned Judge of the Bombay City Civil Court had followed the approach of Pendse, J., this Court cannot find any fault in the same.
19. I am indeed surprised at this argument. Pendse, J., was only dealing with a notice of motion and he has taken a prima facia view of the matter which was before him. There is no new legal proposition in that judgment. If the house is undivided, a stranger cannot be allowed to remain in possession. In that case, the learned Judge, prima facie held that the members of the family were residing separately in the undivided dwelling house for the sake of convenience, and it is on this basis he granted relief to the plaintiffs. He then observed that if the dwelling house is not divided by metes and bounds then, the provisions of section 44 of the Transfer of Property Act would be squarely attracted. I am of the view that these are prima facie observations made by the learned Judge at the hearing of the notice of motion and the observations should be confined to the facts of that case. In the present case, there is an assertion that the house has been divided. Even otherwise, in the present case, it could be said, prima facie, that the plaintiff's family is residing on the upper floor while defendant No. 4's family is residing on the ground floor and each one is having a separate garage and that the user of the compound is also separate, and it is in this sense, the house has been divided by metes and bound and if that is so, this judgment will not apply at all.
20. Relying on this judgment the learned Judge of the Bombay City Civil Court granted interim relief which has the effect of ousting defendant No. 4 from the ground floor of the suit building. Realising that possession has already been taken over by defendant No. 4, following the same approach as Pendse, J., the learned Judge granted that order of injunction would not prevent defendant No. 4 to enter the property to ensure that no one else is entering into possession of the portion which defendant No. 4 has purchased. I find no logic in this part of the order. The question is whether defendant No. 4 has been put in possession of the property or not. If he is in possession of the property, an interim order of the kind passed, can be sustained only on the ground of extreme hardship or on the grounds of irreparable injury. Otherwise, it is only when a decree for possession is passed, he can be ousted. The later part of the order impliedly indicates that he was in possession and, therefore, he has a right to go to the premises occasionally for the purpose of ensuring that no one else enters into the possession of the property. Is the prohibition against possession or is it against occupation? Occasionally means how often? and each time for what duration? Is it possible for him to be there for hours together? Is it possible for him to be there overnight if the situation demands? While checking up the property can he not remain there for a day? I am only indicating these aspects of the matter as there is an inherent contradiction in the order itself and normally the Court cannot grant an order of this type.
In the result, I pass the following order :--
Appeal is, therefore, allowed. The order of the learned Judge is set aside.
I, however, direct that during the pendency of the suit, defendant No. 4 and his wife shall not make any permanent alterations in the suit premises. They shall also not induct any third party in the suit premises, nor should they create any 3rd party interest in the suit premises.
At this stage, Mr. Shroff makes an application that the operation of my order be stayed for a period of six weeks. Mr. Bhatia opposes this application.
P.C.: There is no allegation of any kind of hardship on the part of the plaintiff, if defendant No. 4 and his wife are allowed to stay on the ground floor. Hence the application made by Mr. Shroff is rejected.
As far as the costs of this appeal are concerned, parties will bear their own costs.