Dorab Cawasji Warden v. Coomi Sorab Warden
Supreme Court of India · 13 February 1990 · 2 judges · 1990 AIR 867; 1990 SCR (1) 332; 1990 SCC (2) 117
The Court laid down guidelines for interlocutory mandatory injunctions and restored an injunction keeping a stranger purchaser out of a family dwelling house under Section 44 of the Transfer of Property Act.
Facts
The appellant and his brother Sohrab held a Bombay house, Dorab Villa, as tenants in common in equal undivided shares; their families occupied different floors. After Sohrab's death, his widow and minor sons (respondents 1 to 3) sold their half share to the fourth respondent and his wife on 16 April 1987, and the purchaser took possession. Two days later the appellant sued under the second paragraph of Section 44 of the Transfer of Property Act, claiming that a stranger could not have joint possession of a dwelling house belonging to an undivided family. The City Civil Court granted an interim mandatory injunction restraining the fourth respondent from remaining in possession. The Bombay High Court set it aside, finding no prima facie case, irreparable injury or balance of convenience, and only restrained alterations and third party interests.
Questions before the Court
- On what principles may a court grant an interlocutory injunction in mandatory form?
- Did the appellant make out a prima facie case that the house was a dwelling house belonging to an undivided family under the second paragraph of Section 44 of the Transfer of Property Act?
- Were irreparable injury and balance of convenience in the appellant's favour so as to justify directing the purchaser to vacate pending the suit?
What the Court held
- Courts in India can grant interlocutory mandatory injunctions, generally to restore the last non-contested status quo or to undo acts illegally done. The guidelines are: a strong case for trial, higher than the usual prima facie case; need to prevent irreparable or serious injury not compensable in money; and balance of convenience in the applicant's favour.
- These guidelines are not exhaustive or absolute, and grant remains a matter of sound judicial discretion on the facts of each case.
- 'Undivided family' and 'dwelling house' in Section 44 have the same meaning as in Section 4 of the Partition Act. A family holding property as tenants in common, but not divided by metes and bounds, remains undivided qua the house. The stranger transferee cannot claim joint possession; his remedy is partition.
- The appellant showed a prima facie case. The purchaser bought knowing the bar in Section 44 and took possession hurriedly and secretly to forestall the suit; refusal would cause irreparable injury and the balance of convenience favoured the appellant. The trial court's injunction was restored.
Why it matters
The judgment sets out the guidelines for granting an interlocutory injunction in mandatory form: a strong case for trial above the ordinary prima facie standard, irreparable or serious injury, and balance of convenience, all within the court's judicial discretion. It also explains the second paragraph of Section 44 of the Transfer of Property Act, holding that a family may be undivided qua a dwelling house even when the members hold it as tenants in common, so long as it has not been partitioned by metes and bounds.
In the Court's words
Copied from the official judgment; each passage links to its page.
“The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.”
“Generally stated these guidelines are: (1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.”
“Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”
“We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act.”
Provisions interpreted
- Section 44 (second paragraph), Transfer of Property Act, 1882
- Section 4, Partition Act, 1893
Case and bench
- Parties
- Dorab Cawasji Warden v. Coomi Sorab Warden
- Case
- Civil Appeal No. 2422 of 1989
- Decided
- 13 February 1990
- Bench
- Sharma, L.M. (J), Ramaswami, V. (J) II
- Opinions
- Unanimous. Judgment of the Court delivered by V. Ramasami, J.
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