DORAB CAWASJI WARDEN versus COOMI SORAB WARDEN & ORS.

Citation: [1990] 1 S.C.R. 332 · Decided: 13-02-1990 · Supreme Court of India · Bench: L.M. SHARMA

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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DORAB CAWASJI WARDEN 
v. 
COOMI SORAB WARDEN & ORS. 
FEBRUARY 13, 1990 
[L.M. SHARMA AND V. RAMASWAMY, JJ.] 
Transfer of Property Act: Section 44--Grant of interim manda-
tory injunction in suit-Court to keep in mind restriction on right of 
transferee to joint possession. 
The appellant along with bis father and mother, were the joint 
owners of the suit property. Aller the death of the appellant's mother, 
be and bis father executed an agreement dated 23rd August, 1951 by 
which they severed their status as joint owners and agreed to bold the 
property es tenants in common. On 16th April, 1952 the appellant's 
father transferred his undivided half share in the suit property in 
favour of his another son Sobrab. Thus, the appellant and his brother 
Sohrab came to bold an equal undivided one half share each as tenants 
in common in respect of the said property. 
Aller Sohrab's death, bis widow, the first respondent, and bis 
minor sons, the second and third respondents, sold on 16th April, 1987 
their undivided one half share in the property to the fourth respondent 
and his wife. On 18th April, 1987 the appellant filed a suit under section 
44 of the Transfer of Property Act against the respondents inter alia on 
the ground that the suit property was a dwelling house belonging to an 
undivided family and therefore the fourth respondent who was a 
stranger to the family bad no right to have joint possession or common 
enjoyment of the property on the basis of purchase of undivided share. 
The appellant also took out a notice of motion in the suit in which 
it was claimed that he was entitled to interim/perpetual injunction rest-
raining respondents I, 2 and 3 from parting with possession of the suit 
property. He further claimed that if the said relief was not granted 
irreparable loss and great prejudice will be caused to him which could 
not be compensated in terms of money, and that the equity and balance 
of convenience was in his favour. 
The, Trial Court granted interim injunction the same day but 
when the order was sought to be executed, it was reported that the 4th 
H respondent had already taken possession. 
332 
D.C. WARDEN v. C.S. WARDEN 
333 
The suit and the notice of motion were resisted on the grounds 
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that the appellant and respondents 1, 2 and 3 were owners of the pro-
perty in equal moity but the property was not joint family property or 
property belonging to an undivided family; that there had already been 
a partition as to the user of the property with the result that Sohrab's 
family were in exclusive possession of ground floor and a garage in the 
building, and that the fourth respondent had already taken possession 
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of that portion of the property. It was further contended that the 
respondents would suffer irreparable loss and great prejudice if the 
injunction was granted, and that the balance of convenience was not in 
favour of the appellant. 
The Trial Court found that the suit property was a dwelling house c 
belonging to an undivided family, that there was no partition of the 
same by metes and bounds; that so far as the suit property was con-
cerned the appellant and his family and the family of respondents 1, 2 
and 3 were joint and undivided; that the case would fall within the scope 
of the second paragraph of section 44 of the Transfer of Property Act; 
and that respondent No. 4 and his wife as strangers were not entitled to 
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joint possession of the said dwelling house. Since the 4th defendant had 
claimed that he had already entered into possession, the Court granted 
interim mandatory injunction to the effect that the fourth respondent, 
his servants and agents were restrained from remaining in possession or 
enjoyment of the suit property. 
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On appeal, the High Court was of the view that prima facie the 
facts indicate that throughout the parties have lived separately; that 
there appears to have been a severance in status and it is. not possible to 
give a finding that there has been no partition between the parties, that 
the matter requires evidence on either side as to what extent the ground 
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floor could have ever been considered as a family dwelling house; that 
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granting of interim mandatory injunction will have the effect of virtu-
ally deciding the suit without a trial; and that the plaintiff has not made 
out a prima facie case that he would suffer irreparable damage if In-
junction was not granted or that the balance of 

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