judgement:
iminal Appeals Nos. 102 and 103 of 1958.
Appeals by special leave from the judgment and order dated March 28, 1958, of the Calcutta High Court in Criminal Appeal No. 428 of 1957 and reference section 374 Cr. P. C. No. 8 of 1957 arising out of the 1325 judgment and order dated September 21, 1957, of the Court of the Sessions Judge of Cooch Behar in Sessions Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case No. 18 of 1957).
section K. Kapur, for the appellants.
B. Sen, P. K. Ghosh for P. K. Bose, for the respondent.
September 19.
The Judgment of the Court was delivered by IMAM J.
In these appeals the appellants were convicted for the murder of Malchand Bhadani.
A charge under section 302, Indian Penal Code had been framed against each of them.
The Sessions Judge found that the murder had been committed in the furtherance of their common intention.
In his opinion as appellant Bipin Behari Sarkar had actually committed the murder he convicted this appellant under section 302 of the Indian Penal Code.
He convicted the appellant Bishnu Charan Saha under section 302/34 of the Indian Penal Code.
He sentenced both the appellants to death.
The appellants appealed to the Calcutta High Court while the Sessions Judge made a reference for the confirmation of the death sentence passed by him.
The High Court found the appellants guilty under section 302/34 of the Indian Penal Code.
It accordingly confirmed the sentence of death imposed on the appellants by the Sessions Judge.
According to the prosecution, one Tarachand Bhadani had a cloth shop at Mathabhanga in the district of Cooch Bihar.
He was joint in business and mess with his two sons, Prithiraj and the deceased Malchand.
The annual turn over of the shop was between Rs. 50,000 to Rs. 60,000.
On December 18, 1956, Tarachand had gone to Rajasthan and Prithiraj had gone to Falakata Hat.
Accordingly at the shop on that day Malchand was the only person in charge of it.
At about 8 30 p. m., after the close of the day 's business, Malchand was counting the cash in the iron safe in an ante room of the shop when the appellants with one Sanatan Das, who was acquitted at the trial, 1326 called at the shop.
Malchand came out of the anteroom into the shop to attend to these late customers.
He had left open the safe and one of its drawers on the floor.
The appellants purported to make certain purchases and examined various pieces of cloth.
After selection of the cloth they were put into packets.
Cash memoes in duplicate were prepared and signed by Malcliand and the appellant Bishnu Charan Saha.
The cash memoes had been completely filled in.
Two of them had been separated from the cash memo book, but before the 3rd cash memo could be detached from the book, Malchand was struck down by the appellants with a heavy cutting instrument which they had carried.
The neck was so severely cut that the head was nearly severed from the trunk.
Just about then, a neighbour called out to Malchand by way of casual enquiry before retiring for the night.
This so frightened the miscreants that they fled.
The money in the open safe was left untouched.
The motive for the murder was to steal the money from the safe.
On December 25, 1956, the police seized a sharp cutting weapon variously described as a sword or a dagger.
It was found lying close to some shrubbery near Malchand 's shop.
It was stained with human blood.
It was a practice of the shop of Tarachand Bhadani to despatch from time to time, after obtaining Hundis, the accumulated proceeds of the business to Calcutta.
On the morning of December 18, 1956, Prithiraj, before he went to Falakata Hat, had made enquiries from the firm of Bhairabhan Bhowrilal whether any Hundi was available.
As Bhowrilal was not able to supply him the Hundi the cash remained in the shop.
The contents of the safe showed that on December 18, 1956, before Malchand was murdered there was a sum of Rs. 3,913 in cash and 8 1/4 tolas of gold.
There was, therefore, a substantial amount in the safe at the shop which would have been stolen were it not that the miscreants fled after murdering Malchand because of a neighbour calling out to him.
The conviction of the appellants, as pointed out by the High Court, depended entirely on circumstantial 1327 evidence.
The High Court did not rely upon the confessional statement made by the appellant Bishnu Charan Saha to a Magistrate, as, in its opinion, it was not a voluntary statement.
Reference will be made to the circumstantial evidence, upon which the High Court relied, in due course.
Before we deal with that aspect of the case it is necessary to refer to a submission made on behalf of the appellants concerning the tender of pardon under section 337 of the Code of Criminal Procedure to Bishnu Charan Saha and, the failure of the prosecution to comply with the provisions of section 339 of the Code of Criminal Procedure.
It was urged that the provisions of section 339 of the Code not having been complied with the trial ",as vitiated as the appellant Bishnu Charan Saha could not be tried alongwith the appellant Bipin Behari Sarkar.
In order to understand this submission it is necessary to state a few facts.
Bishnu Charan Saha was arrested at about 3 p. m. on December 19, 1956.
His confession was recorded by the Magistrate Mr. section C. Chaudhury on December 20, 1956.
A charge sheet against the appellants and Sanatan Das was submitted by the police on June 20, 1957.
On June 22, 1957, a prayer was made to the Sub divisional Magistrate on behalf of the prosecution that Bishnu Charan Saba may be tendered a pardon under section 337 of the Code of Criminal Procedure and the Magistrate recorded an order to the effect that this appellant was tendered pardon under section 337 of the Code of Criminal Procedure on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof.
The Sub divisional Magistrate bad already reported on June 20, 1957, to the District Magistrate that both he and the other Magistrate of Mathabhanga should not hold the commitment proceedings as they had had something to do with the investigation.
On August 1, 1957, the Magistrate Mr. Sinha, to whom the case had been ultimately transferred, recorded an order to the effect that the three accused had been produced before him and that he had seen the Court 1328 Inspector 's petition praying that the accused Bishnu be made an approver in the case under section 337 of the Code of Criminal Procedure.
This accused had, however, stated that he made the confessional statement before the Magistrate at Mathabhanga as he had been assaulted by the police and that he did not wish to become an approver.
After the completion of the enquiry before commitment, the appellants and Sanatan Das were committed to the Court of Session to stand their trial for the murder of Malchand.
Section 339(1) of the Code provides that " where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which lie appears to have been guilty in connection with the same matter ".
The proviso to this sub section prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such tender was made.
The provisions of this section clearly pre suppose that the pardon which had been tendered to a person had been accepted by him and that thereafter that person had wilfully concealed anything essential or had given false evidence and therefore bad not complied with the condition on which the tender was made to him.
Section 337 of the Code, under which a pardon is tendered, shows that such tender is made on the condition that the person to whom it is tendered makes a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as a principal or an abettor to the commission thereof.
Sub section (2) of this section requires that every person who has accepted a tender shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
1329 It is clear, therefore, that a mere tender of pardon does not attract the provisions of section 339.
There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness.
It is ' only thereafter that the provisions of section 339 come into play and the person who accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion he has, either wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made.
In the present case, there is nothing on the record to show that on July 22, 1957, although Bishnu Charan Saha had been tendered a pardon, he had accepted the tender.
Indeed, the order sheet of the Sub divisional Magistrate of that date does not even disclose that Bishnu Charan Saha had been produced before him.
On the other hand, when Bishnu Charan Saha and his co accused were produced before the Magistrate Mr. Sinha, to whom the case had been transferred, the prosecution made a prayer to the Magistrate that Bishnu Charan Saha may be made an approver in the case under section 337 of the Code of Criminal Procedure.
This would show that upto that time Bishnu Charan Saha had not accepted the tender of pardon made to him by the Sub divisional Magis trate on June 22,1957.
On the prayer of the Prosecutor made to Mr. Sinha on August 1, 1957, Bishnu Charan Saba flatly denied that he wished to be an approver and had stated that the confessional statement made by him to Mr. Chaudhury was not a voluntary one.
On the facts of the present case, therefore, all that is proved is that at one stage of the proceedings a tender of pardon had been made to Bishnu Charan Saba.
There was, however, no proof that that tender had been accepted by him.
Such being the situation it could not be said that there was in existence an effective pardon under section 337 and that its provisions applied to the facts of the present case.
Consequently, no question arises about the applicability of section 339 to the proceedings before the Magistrate holding an enquiry before commitment or to the trial of the appellants, because the 1330 provisions of section 339 can only come into operation if there is in existence an effective pardon under section 337 of the Code.
In our opinion, on the facts of the present case, there is no foundation for the submission which had been made.
Coming now to the circumstantial evidence in the case upon which the High Court relied for upholding the conviction of the appellants, which may be summed up as follows: (1) The evidence clearly established that the appellants were local men who lived or worked not far from Malchand 's shop.
They accordingly had the means and the opportunity of knowing the state of things obtaining at his shop at a particular date.
(2) The association of the appellants and Sanatan Das immediately prior to the murder.
(3) The evidence of their movements towards the direction of Malchand 's shop.
(4) The evidence concerning their presence in the shop of Malchand shortly before the latter was murdered.
(5) The evidence concerning the appellant Bipin Bihari Sarkar hurrying away from the direction of Malchand 's shop closely followed by the appellant Bishnu Charan Saha.
(6) The evidence of injuries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or shortly thereafter, of the murder.
(7) The evidence of the presence of human bloodstains on the shirt of Bishnu Charan Saha and bloodstains on the wrapper of Bipin Behari Sarkar with burnt holes at places where the stains were found.
(8) The cash memoes with the signatures of the appellant Bishnu Charan Saha.
(9) In the opinion of the doctor the nature of the injuries on Malchand showed that probably he was overpowered by someone first and then another person pressed the weapon against his neck.
The matter for consideration is whether the circumstantial evidence, as stated above, is sufficient to prove 1331 that the appellants had participated in the murder of Malchand.
Two findings of the High Court may be stated at, this stage before the circumstantial evidence is referred to.
One concerned the cash memoes signed by Bishnu Charan Saha and the other concerned the colour of the wrapper worn by Bipin Behari Sarkar when he was seen by Kali Mohan Sarkar, P. W. 7 going away from a place near the shop of Malchand after the murder.
The cash memoes bore the date 11 12 56 and not 18 12 56.
The High Court gave good reasons for holding that the date 11 12 56 was wrongly entered in these cash memoes after examining the account books of Malchand 's shop and the other circumstances in the case as well as the admission of Bishnu Charan Saha that on December 18, 1956, between 1 30 and 2 p. m. be had caused three cash memoes to be issued in the shop of Malchand.
We find ourselves in complete agreement with the findings of the High Court in this respect.
The wrapper worn by Bipin Behari Sarkar at the time he was seen by Kali Mohan Sarkar was described by the witness as blue in colour whereas, in fact, the recovered wrapper from the house of this appellant was green in colour.
The High Court thought and, in our opinion, rightly that what was in fact green in colour might have appeared to be blue to a witness when seen at night by him.
A mistake in describing the colour accurately in the circumstances of the present case did not materially affect the evidence that Bipin Behari Sarkar was wearing a wrapper at the time he was seen at a spot near Malchand 's shop after the murder.
Further reference to the wrapper will be made when we consider the case of this appellant.
Mohan Lal Sarma, P. W. 4 had stated that at about 8 p.m. on December 18, 1956, he had seen the appellants and Sanatan Das sitting in the latter 's shop.
Bishnu Charan Saha was the first to leave the shop.
10 or 15 minutes later, Bipin Behari Sarkar and Sanatan Das left after padlocking Sanatan 's shop.
The evidence of this witness had been fully accepted 169 169 1332 by the High Court.
Sudhir Ranjan De, P. W. 8 deposed that in the evening of December 18, 1956, at about 7 30 p.m. he had seen Bishnu Charan Saha passing in front of Gostha 's shop which was nearly opposite Malchand 's shop.
He had on his body a Sujni Chaddar.
4 or 5 minutes later, Bipin Behari Sarkar and Sanatan Das were seen going in the same direction.
The High Court believed the evidence of this witness.
It came to the conclusion that on the evidence of Mohan Lal Sarma and Sudhir Ranjan De it was established that at about 8 p.m. the appellants and Sanatan Das were moving towards Malchand 's shop.
There was no doubt some discrepancy about the timing but, as was pointed out by the High Court, the witnesses were giving the time approximately and did not purport to give the exact time.
Kumud Lal Saha, P. W. 2 deposed that at about 8 30 p.m. on December 18,1956, he saw the appellants and Sanatan sitting with Malchand in the latter 's shop.
Malchand was at that time placing cloth for their inspection.
The High Court referred to the various criticisms levelled against the testimony of this witness and after dealing with them came to the conclusion that the witness was a truthful witness and that his evi dence established that the appellants were at the shop of Malchand at about 8 30 p.m. and that Malchand was last seen alive with them.
The evidence of Khum Chand Bothers, P.W. 3 proved that at about 8 30 p.m. on the night of Malchand 's murder he had called out "Malchand " " Malchand ", but had received no reply.
Kali Mohan Sarkar, P. W. 7 proved that at about 8 p.m. on the night in question when he was going home he met the appellant Bipin Behari Sarkar who was going away hurriedly from the direction of the Bazar.
On some enquiry made by the witness this appellant stated that he had been pressed by a call of nature.
Thereafter, the appellant Bishnu Charan Saha was seen coming behind Bipin Behari Sarkar.
Bipin Behari Sarkar had on his person a blue coloured wrapper.
The spot at which he had met the appellant Bipin Behari Sarkar was at a distance of about 100 cubits to the south of the passage meant for sweepers 1333 of Malchand 's house.
He had heard Bishnu Charan Saha calling out " Hei, Hei " to Bipin Behari Sarkar .
The evidence of these witnesses, which had been accepted by the High Court, established that the appellants were seen going in the direction of Malchand 's shop.
Thereafter, they were seen with Malchand at his shop.
Subsequent to that, Bipin Behari Sarkar was seen going away hurriedly at a place not far from Malchand 's shop followed by Bishnu Charan Saha who was calling out to him " Hei, Hei ".
The last time that Malchand was seen alive was in the company of the appellants.
The existence of the cash memoes, which were stained with human blood, with the signatures of Bishnu Charan Saha clearly established that at least Bishnu Cliaran Saha must have been present at the time of the murder because the cash memoes were being made out for him and they were stained with human blood which shows that Malchand was murdered while he was handling the cash memoes.
It had been further proved that Bishnu Charan Saha had on him certain injuries of which one was an incised injury.
The evidence of the doctor was that this injury could have been caused by the same instrument with which the neck injury of Malchand had been caused.
It had been further established that the shirt of Bishinu Charan Saha was stained with human blood.
The explanation offered by Bishnu Charan Saba for the injuries on his person was not accepted by the High Court and, in our opinion, rightly.
Bishnu Charan Saha had stated to the doctor at the time of his examination that injury No. 1 was caused as the result of contact with a grass cutting dao and injuries Nos. 2 and 3 by having drawn his hand over a rough piece of wood, but to the doctor this explanation was unacceptable inasmuch as this appellant was not a left handed person a fact which appeared clear from his formation and development.
When examined under section 342 of the Code of Criminal Procedure Bishnu Charan Saha told the Court that 2 days prior to his examination by the doctor lie had been cutting straw for his cattle with his left hand when his daughter aged about 1334 4 came up from behind and pushed him which resulted in the injury to his finger by its contact with the dao and that he had also received injuries on the back of his finger by striking it against a piece of wood.
So far as the shirt stained with human blood, which was found on his person at the time of his arrest, was concerned, Bishnu Charan Saha seriously disputed the identity of the shirt.
The identity of the shirt, however, had been clearly established.
His explanation to the Court was that some of the stains had been caused by betel spit and that one or two might have been caused by some drops of blood falling on the shirt at the time he had sustained his injuries.
This explanation was also not accepted by the High Court and, we think, rightly.
The evidence therefore established that so far as Bishnu Charan Saha was concerned he was seen in the company of Bipin Behari Sarkar and Sanatan Das near about 8 p. m.
He was seen shortly thereafter, as were the other two, going in a direction which was towards the shop of Malchand.
He was seen along with the other two persons at the shop of Malchand at about 8 30 p.m.
Thereafter, he was seen not far from the shop of Malchand going in the same direction as Bipin Behari Sarkar and calling out to him.
The cash memoes at Malchand 's shop had been signed by him.
He had injuries on his person consistent with their having been caused while the murder of the deceased took place.
The shirt that he was wearing at the time of his arrest was stained with human blood for which he gave no reasonable explanation.
In our opinion, the sum total of the evidence against Bishnu Charan Saha established beyond any reasonable doubt that he had participated in the murder of Malchand.
Coming now to the case of Bipin Behari Sarkar the evidence against him is the same as against Bishnu Charan Saha about the movements towards the shop of Malchand, presence at the shop of Malchand and being seen going away at a place near the shop of Malchand and the existence of injuries on his person.
In addition there was the evidence that a wrapper was seized the next morning after his arrest with marks of 1335 burning round which there were traces of blood.
Unlike the case of Bishnu Charan Saba no signatures of his were found on the cash memoes.
It is a matter for consideration whether in the case of this appellant ' any reasonable doubt could arise as to his guilt.
It was urged that mere movements towards the shop of Malchand, his presence at the shop of Malchand and his being seen going away at a place near the shop of Malchand would not be sufficient circumstantial evidence to convict him.
So far as the injuries were concerned the doctor had admitted that they could have been caused by a split bamboo.
The doctor had at no time stated that they could have been caused by the same weapon which caused injuries to the neck of Malchand.
The existence of the injuries, therefore, was no additional incriminating circumstance from which any conclusion could be drawn against this appellant.
So far as the wrapper was concerned, there was no evidence that the burnt marks found on it were not there before December 18, 1956.
Although blood stains had been found on this wrapper it had not been established that they were human blood stains.
The wrapper was also, therefore, n0 additional incriminating circumstance against this appellant.
It is, however, to be remembered that this appellant was with Bishnu Charan Saha and that Malchand was last seen alive in the company of the appellants.
The murder of Malchand had already taken place when this appellant followed by Bishnu Charan Saha was seen going away hurriedly at a spot near the shop of Malchand and Bishnu Charan Saha was calling out " Hei, Hei " to him.
It is remarkable that this appellant was seen not only at the shop of Malchand but near that shop after he bad been murdered and that he was found to have injuries oil his person when he was arrested at 10 30 p.m. on December 19, 1956.
It would be a remarkable coincidence that both he and Bishnu Charan Saha should have injuries on their persons so shortly after the murder.
Bipin Behari Sarkar denied ownership of the wrapper.
His explanation was not that the burnt marks on the wrapper were there before December 18.
1336 This wrapper had blood stains.
They were too small in quantity to enable a Serologist to determine their origin, but it is remarkable that wherever the bloodstains were found on the wrapper an attempt had been made to burn out those marks.
Unfortunately, for the appellant, his attempt to burn out the bloodstains on the wrapper was not entirely successful.
This was in our opinion, an incriminating circumstance against this appellant.
The circumstantial evidence taken as a whole leaves no room for a reasonable doubt in our minds about the guilt of this appellant.
In our opinion, the High Court rightly found the appellants guilty under section 302/34 of the Indian Penal Code.
It could not be said that the sentence of death for a murder of the kind proved in this case was unduly severe.
The appeals are accordingly dismissed.
Appeals dismissed.

summary:
The two appellants and one other person were accused of committing a murder.
The second appellant made a confession before a Magistrate.
The police submitted a charge sheet against the three accused.
Thereafter the prosecution made a prayer to the sub divisional Magistrate that the second appellant may be tendered a pardon under section 337, Code of Criminal Procedure and the Magistrate recorded an order to the effect that he was tendered a pardon under section 337 on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge.
Before the Committing Magistrate the second appellant stated that the confession made by him was not voluntary and that he did not wish to become an approver.
The appellants were committed to the Court of Sessions and were convicted of the murder and were sentenced to death.
On appeal the High Court confirmed the conviction and sentence.
It was contended by the appellants that the second appellant having been tendered a pardon the joint trial of the appellants was vitiated as it was barred by the proviso to section 339(I) Of the Code.
Held, that there was no effective pardon under section 337 Of the Code and consequently the provisions of section 339 did not come into operation in this case.
A mere tender of pardon does not attract the provisions of section 339 ; there must be an acceptance of the pardon by the accomplice and he must be examined as a witness.
It is only after this that section 339 comes into play if the accomplice who has accepted the pardon fails to comply with the conditions on which the pardon was tendered.
In the present case though a tender of pardon was made to the second appellant there was no proof that it was accepted by him and as such it could not be said that there was in existence an effective pardon under section 337.


judgement:
ivil Appeal No. 2422 of 1989.
From the Judgment and Order dated 3.9.1988 of the Bombay High Court in Appeal from Order No. 707 of 1987.
Soli J. Sorabjee, R.F. Nariman, Raian Karanjawala, Ms. Meenakshi Arora, Ms. Nandini Gore and Ms. Manik Karanjawala for the Appellant.
Anil Diwan, Harish N. Salve, Ms. Indu Malhotra, Mrs. Ayesha Karim, I.R. Joshi, M. Gandhi and H.J. Javeri for the Respondents.
The Judgment of the Court was delivered by V. RAMASAMI, J.
This appeal arises out of notice of motion taken by the plaintiff in Civil Suit No. 2987 of 1987 on the file of the Bombay City Civil Court at Bombay for interim injunction pending the suit restraining defendants 1 to 3 from parting with possession and defendants 4 and 5 from entering into or taking possession and or remaining in possession or enjoyment of the suit property, namely, Dorab Villa, 29, Perry Cross Road, Bandra, Bombay, or any part or portion thereof.
The appellant is the plaintiff and defend ants 1 to 5 are respondents 1 to 5.
The appellant is the owner of an undivided half share in the suit property.
The suit property was purchased original ly under a deed dated 12th January, 1934 by Cawasji Dorabji Warden, Banubai Warden and the appellant as joint owners.
Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant.
It appears that the super structure on the land was constructed subsequent to the purchase.
At the time when the property was purchased 337 the appellant was a minor.
By a registered deed of declara tion that the appellant made a declaration that the appel lant has an undivided share in the said piece of land and the building erected thereon as joint tenants with the declarants, and that in the event of the appellant 's surviv ing the declarants, he shall by virtue of the said joint tenancy and his survival becomes solely and beneficially entitled to the said piece of land and the building thereon.
However, this deed reserved a right to either or both the declarants and the appellant from severing the joint tenancy at any time.
On the death of Banubai on 9th June, 1946 the appellant and his father as surviving joint tenants came to own the entire property.
Under an agreement dated 23rd of August, 1951 the appellant and his father, who were then the joint tenants of the said property, agreed to hold the same as tenants in common, each having an equal undivided share therein so that each can dispose of his undivided share in the property and each share become a separate stock of descent.
On 16th April, 1952 the appellant 's father trans ferred his undivided haft share in the suit property in favour of his another son by name Sohrab Warden in cansider ation of the said Sohrab releasing in favour of his father his undivided share in some other property described in the second schedule to that document.
Thus the appellant and his brother Sohrab came to hold an equal undivided one half share each, as tenants in common in respect of the said property.
Sohrab died intestate on 12th October, 1976 leaving behind him his widow the first respondent and his two minor sons the second and third respondents in this appeal.
Re spondents 1 to 3 sold their undivided one half share in the said property to the fourth respondent and his wife under a sale deed dated 16th April, 1987.
On the 18th April, 1987 praying for a decree directing respondents 1, 2 and 3 from parting with possession of the said property or any part thereof and/or inducting any third party including respond ent 4 into the said property or any part or portion thereof, and for further directions against respondents 4 and 5 from entering into or taking possession and/or remaining in possession or enjoyment of the suit property from defendants 1, 2 and 3 or otherwise.
The fifth respondent was impleaded on the assumption that he and the fourth respondent jointly purchased the property but it is now accepted that he is not one of the purchasers and the property was purchased by the fourth respondent and his wife.
Pending the suit the appel lant prayed for an interim injunction restraining the re spondents 1 to 3 from parting with possession of the said property or any part thereof and/or inducting the fourth respondent into the suit property or any part or portion thereof and a similar injunction restraining the fourth respondent from entering into or taking possession and/or 338 remaining in possession or enjoyment of the suit property or part thereof.
The suit was filed on the ground that the suit property is a dwelling house belonging to an undivided family, that there had not been any division of the said property at any time, that the plaintiff and his deceased brother Sohrab during his fife time were for convenience occupying differ ent portions, the plaintiff occupying the first floor while the deceased Sohrab was occupying the ground floor.
After the death of Sohrab respondents 1 to 3 continue to be in occupation of that portion which was in the occupation of Sohrab.
In the circumstances the fourth defendant who is a stranger to the family has no right to have joint possession or common enjoyment of the property along with the plaintiff on the basis of the purchase of the undivided share.
On this ground the appellant plaintiff claimed that he is entitled to perpetual injunction as prayed for in the suit.
He fur ther claimed that pending the suit he is entitled to an interim relief as prayed for and that if the said relief is not granted irreparable loss and great prejudice will be caused to him which cannot be compensated in terms of money, and that the equity and balance of convenience is in his favour and no prejudice or loss would be caused to the respondents.
In the counter affidavit filed by the fourth respondent and the first respondent on behalf of herself and two minor sons it was contended that though the appellant and respond ents 1, 2 and 3 were owning the property in equal moity they were holding it in their individual capacity and not as members of joint family and that the suit property is not joint family property or property belonging to an undivided family.
The further case of the defendant was that since 1968 when Sohrab got married the appellant and 'his family had been in exclusive occupation of the upper floor of the Bungalow and a garage while the entire ground floor of the building of the said property and another garage was in the exclusive use and possession of Sohrab and his family and that the compound, staircase and the terrace were in joint possession.
They were also having separate mess, separate electricity and water meters and that they were paying proportionate taxes.
After the death of the said Sohrab, respondents 1 to 3 continued to stay and occupy exclusively the said ground floor as well as the garage till the said one half portion of the property was sold and conveyed absolutely to the fourth respondent and his wife.
1n the circumstances though the property was held as tenants in common, there had already been a partition as to the user of the property.
The fourth respondent had taken possession of that portion of the property which was in 339 occupation of respondents 1 to 3 in pursuance of the sale deed.
The further contention was that it is not the appel lant who would suffer irreparable loss and great prejudice if the injunction is granted but it is the respondents who would suffer the loss and prejudice and that the balance of convenience is not in favour of the appellant.
The trial court found that the suit property is dwelling house belonging to an undivided family, that there was no partition of the same by metes and bounds at any time, that the plaintiff and his father at the material time were undivided qua the entire suit property, that though the family of the appellant and the family of his brother Sohrab may be divided for food and worship they were not divided qua the suit property, that so far as the suit property is concerned the appellant and his family and the family of respondents 1, 2 and 3 were joint and undivided and that the case would fall within the scope of the second paragraph of section 44 of the Transfer of Property Act and that, there fore, respondent 4 and his wife as strangers were not enti tled to joint possession of the said family dwelling house.
Since the defendant had claimed that he already entered into possession interim mandatory injunction was granted to the effect that the fourth respondent, his servants and his agents are restrained "from remaining in possession or enjoyment of the suit property" or any part or portion thereof.
However, the learned Judge ordered that this in junction order would not prevent the fourth respondent to occasionally enter the suit property to enquire that on one else other than the plaintiff and his family members is entering into possession of the portion of the ground floor and one garage which he has purchased.
On appeal the High Court was of the view that prims facie the facts indicate that throughout the parties have lived separately, that there appear to have been severance in status and it is not possible to give a finding that there has been no partition between the parties, that the matter requires evidence on either side as to what extent the ground floor could have ever been considered as a family dwelling house that granting of interim mandatory injunction will have the effect of virtually deciding the suit without a trial and that the plaintiff has not made out a prima facie case that the plaintiff would suffer irreparable damage, if any injunction is not granted or that the balance of convenience is in his favour.
In that view the learned Single Judge allowed the appeal and set aside the order granting the injunction but directed that during the penden cy of the suit the fourth respondent and his wife shall not make any permanent alterations in the suit 340 premises nor shall they induct any third party, or create any third party interest over the suit property.
Sale deed in favour of the fourth respondent recites that the possession of that portion of the property which was the subject matter of the sale had been handed over to the purchaser and that purchaser can continue to be in possession without any let or hindrance by the vendees.
At the time of the Commissioner 's inspection immediately after filing of the suit except that there were some of the items belonging to respondents 1 to 3, it was found that the fourth respondent had taken possession.
That was the finding of the trial court and it was on that basis the injunction in a mandatory form was granted.
In fact, in this Court also the learned counsel appearing for the parties proceeded on the basis that the purchaser was inducted in the possession of the disputed portion of the house even by the time the Commissioner visited the place.
We, therefore, hold that the purchasers have occupied the disputed portion and the ques tion, therefore, for consideration is whether the appellant is entitled to the injunction in a mandatory form directing the fourth respondent purchaser to vacate the premises.
The trial court gave an interim mandatory injunction directing the fourth respondent not to continue in posses sion.
There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special cir cumstances.
It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions.
In Shepherd Homes Ltd. vs Sandham, , Megarry J. observed: "(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher stand ard than was required for a prohibitory injunction.
" In Evans Marshall & Co. Ltd. vs Bertola SA, the Court of Appeal held that: "Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at 341 the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant;".
The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. & Ors.
vs Cannon Film Sales Ltd., [1986] 3 AIIER 772 Hoffmann, J. observed in that case: "But I think it is important in this area to distinguish between fundamental principles and what are sometimes de scribed as 'guidelines ', i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category.
The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or manda tory, is that there is by definition a risk that the court may make the 'wrong ' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alterna tively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.
A fundamental princi ple is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong ' in the sense I have described.
The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.
" Again at page 781 the learned Judge observed: "The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunc tion.
The second point is that in cases in which there can be no dispute about the use of the term 'mandatory ' to describe the injunction, the same question of substance will determine whether the case is 'normal ' and therefore within the guideline or 'exceptional ' and therefore requiring special treatment.
If it appears to the court that, excep tionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of.
injustice than granting it even though the court does not feel a 'high degree of assurance ' about the plain tiff 's chances of establishing his right, there cannot be any rational basis for withholding the injunction.
" 342 and concluded that: "These considerations lead me to conclude that the Court of Appeal in Locabail International Finance Ltd. vs Agroexpon, at 906, at 664 was not intending to 'fetter the court 's discretion by laying down any rules which would have the effect of limiting the flexi bility of the remedy ', to quote Lord Diplock in the Cyanamid case ; at 510, (1975) AC 396 at 407.
Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne vs Global Natural Resources plc, , so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient.
" On the test 1 to he applied in granting mandatory injunc tions on interlocutory applications in 24 Halsbury 's Laws of England (4th Edn.) para 948 it is stated: "A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted.
However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steel a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory applications.
" The law in United States is the same and it may be found in 42 American Jurisprudence 22 Edn.
page 745 etc.
As far the cases decided in India we may note the fol lowing cases.
In one of the earliest cases in Rasul Karim & Anr.
vs Pirubhai Amirbhai, ILR , Beaman, J. was of the view that the 343 court 's in India have no power to issue a temporary injunc tion in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view.
However, in a later Division Bench judgment in Champ sey Bhimji & Co. vs The Jamna Flour Mills Co. Ltd., ILR 191416 Bom.
566, two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court.
In M. Kandas wami Chetty V.P. Subramania Chetty, ILR 191841 Mad. 208, a Division Bench of the Madras High Court held that court 's in India have the power by virtue of Order 39 Rule 2 of the Code of Civil Procedure to issue temporary injunction in a mandatory form and differed from Beaman 's view accepting the view in Champsey Bhimji & Co. vs Jamna Flour Mills Co. (supra).
In Israil vs Shamser Rahman, ILR 191441 Cal.
436, it was held that the High Court was competent to issue an interim injunction in a mandatory form.
It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunc tion should be granted until the time for deciding them should arrive.
It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be main tained.
While accepting that it is not possible to say that in no circumstances will the Courts in India have any juris diction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. vs Art Pictures Ltd. & Ors., AIR 1956 Cal.
428 a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.
The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.
But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injus tice or irreparable harm, courts have evolved certain guid lines.
Generally stated these guidelines are: 344 (1) The plaintiff has a strong case for trail.
That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circum stances in each case.
Though the above guidelines are nei ther exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.
The suit is one filed under section 44 of the Transfer of Property Act (hereinafter referred to as 'the Act ').
In considering the question of interim mandatory injunction in a suit filed under section 44 of the Act the Court has also to keep in mind the restriction on the rights of the trans feree to joint possession under that section.
The section reads as follows: "44.
Where one of two or more co owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the trans feree acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transfer or 's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liability affecting, at the date of the transfer, the share or interest so trans ferred.
Where the transferee of a share of a dwelling house belong ing to an undivided family is not a member of the family, nothing in this section shall be deemed.
to entitle him to joint possession or other common or part enjoyment of the house.
" In order to attract the second paragraph of this section the 345 subject matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family.
Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling house and it belonged to an undivided family.
In other words, on the facts before the Court there is a strong probability of the plaintiff getting the relief prayed for by him in the suit.
On the second and third ingredients having regard to the restriction on the rights of a trans feree for joint possession and the dominant purpose of the second paragraph of section 44 of the Act, there is danger of an injury or violation of the corresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Court 's interference is necessary to protect the interest of the plaintiff.
Since the relief of an interim injunction is all the same an equitable relief the Court shall also consider whether the comparative mis chief or inconvenience which is likely to issue from with holding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff.
The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a 'dwell ing house belonging to an undivided family ' within the meaning of section 44 of the Act.
As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and Ors.
vs Debi Prasad, All. 324.
That was concerned with the meaning of the phrase "dwelling house belonging to an undivided family" in section 4 of the Partnership Act, 1893.
That section provides that where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family, being a share holder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the ' sale of such share to such shareholder.
The argument was that the words 'undivided family ' as used in the section mean a joint family and are confined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property.
The counter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc.
possessed of a dwelling house which has not been divided or partitioned among the members of the family.
The case itself related to a Muslim family to whom the house belonged.
The full Bench observed: 346 ". in it (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community.
The words 'undivided family ' as used in this section appear to be borrowed from section 44 of the Transfer of Property Act.
The last clause of that section prescribes that where the transferee of a share of a dwell ing house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house.
This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition.
There appears to me to be no reason why the words 'undivided family ' as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act.
If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section.
For example, instead of the words 'undivided family ' the expression 'undivided Hindu family ' or 'joint family ' might have been used.
With reference to the object and purpose of such a provision the Full Bench further observed: "as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad vs Bankey Lall, [1906] 9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwell ing house in which other members of his transferor 's family have a right to live, and that the words 'undivided family ' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it '.
" Again in construing the word "family" and 'undivided family ' a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal & Anr.
vs Saroda Prosad Mitra, observed: "The word 'family ', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does 347 include a group of persons related in blood, who live in one house or under one head or management.
There is nothing in the Partition Act to support the suggestion that the term 'family ' was intended to be used in a very narrow and re stricted sense, namely, a body of persons who can trace their descent from a common ancestor.
" The decision in Nil Kamal Bhattacharjya & Anr.
vs Kamak shya Charan Bhattacharjya & Anr., related to a case of a group of persons who were not the male de scendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ancestor and the sons of a daughter of a son of the said common ancestor.
The learned Judge applied the principle enunciated in Sultan Begam vs Debi Prasad, (supra) to this family and held that it was an undivided family since the house had not been divided by metes and bounds among themselves.
The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya vs Venkata Subbamma & Ors., AIR 1930 Madras 561.
The next decision to be noted is the one reported in Bhim Singh vs Ratnkar., AIR 1971 Orissa 198.
In that case the undivided family consisted of the plaintiff and the defendants 1 and 2 therein.
The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court.
The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plain tiff and defendant 2.
The facts as found by the courts were that by an amicable arrangement among plaintiff and defend ants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession.
After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held: "If in this state of things, a member of the family trans fers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share.
The object of the provision in section 44 is to prevent the 348 intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger.
The factual position as has been determined is that the property is still an undivided dwell ing house, possession and enjoyment whereof are confined to the members of the family.
The stranger transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co ownership of the property should be kept out.
" On the question whether the enjoyment of ascertained sepa rate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu vs Ratnakar Bej, AIR 1967 Orissa 139 with approval: "If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint pOs session and is illegal.
Courts cannot countenance or foster illegal possession.
The possession of the defendant trans feree in such a case becomes illegal.
Plaintiff 's co owners are entitled to get a decree for eviction or even for in junction where the transferee threatens to get possession by force.
If there had been a finding that there was severance of joint status but no partition by metes and bounds, de fendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act.
" The learned Judge further held: The last contention of Mr. Pal is that the plaintiff sued for injunction only.
The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld.
Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchas ers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction.
The effect of that injunction would necessarily mean ejectment.
In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable.
The remedy of the stranger purchas er is actually one of partition.
Until then, he is obliged to keep 349 out from asserting joint possession.
" We may respectfully state that this is a correct state ment of the law.
There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
It is not disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants.
The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he chooses and also enable his heirs to succeed.
In pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that hence forth they were holding the said piece of land and building as tenants in common in equal undivided half share.
In the view of the High Court this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father.
In support of this conclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appel lant 's family and Sohrab 's family were occupying different portions of the suit property and enjoying the same exclu sively.
We are afraid that some notions of co parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family.
We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act.
We had also noticed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16 4 1982.
Two questions may arise for consideration whether this transaction is covered by section 350 44 of the Act and whether after the transfer, the appel lant 's brother and the appellant can be said to be holding the property as undivided family.
The transfer by the father in favour of Sohrab was a transfer in favour of a member of a family as Sohrab was living with them.
Sohrab attained the age of 18 only on 25th December, 1951 and as seen from the other documents he was living with his father and brother till 1968 when he got married.
It is only after he was married the appellant and Sohrab were occupying different portions of the suit property and having different mess.
In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, we are of the view that the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family consist ing of himself and his brother.
The two brothers, therefore, shall be deemed to be holding the property as members of an undivided family and in the absence of the partition by metes and bounds qua this property they shall be deemed to have been holding the dwelling house as an undivided family.
Prima facie, there fore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act.
The next question for consideration is whether irrepara ble injury would be caused to the appellant which could not be compensated in terms of money and whether the balance of convenience is in favour of the appellant.
While section 44 does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee 's share on a value to be fixed in accordance with law when the transferee filed a suit for partition.
Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members.
As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee 's family have a right to live.
In some other cases giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition.
All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family.
351 Mr. Sorabjee the learned counsel for the appellant brought to our notice a number of circumstances which go to show that the fourth respondent was fully aware of the limited and restrictive title of respondents 1, 2 and 3 and the bar for joint possession provided in the second para graph of section 44 of the Transfer of Property Act and having purchased with such full knowledge tried to over reach the Court by keeping the whole transaction secret and taking possession of the property purchased before the appellant could get legal redress from the Court.
Apart from the fact that the various recitals in the agreement to sell dated 21.12.1986 and the sale deed 16.4.1987 executed by respondents 1 to 3 in favour of the fourth respondent clear ly show that the fourth respondent was fully aware of the provisions of section 44 of the Act and that he had pur chased the property with the full knowledge of the rights of the other members of the family taking, a complete risk.
Clause 6 of the agreement also specifically provided that: "In case pending the completion of this sale any suit be filed by the said co owner Dorab or other person against the Vendors, or any one or more of them, and an injunction (not being an ad interim injunction) is obtained restraining the Vendors from selling or disposing of the said property, then the Vendors shall have the option to keep this sale in abeyance or to cancel and rescind this agreement.
In the latter case, the earnest money will be returned and the Vendors shall transfer their right, title and interest in the said Bangalow property to the purchaser or his nominee . " This provision in the agreement clearly show that the fourth respondent knew that respondents 1 to 3 have only a limited right to transfer their undivided one half share to a stranger purchaser and they contemplated litigation in this regard.
The said sale was itself hurriedly executed in a hush hush manner keeping the entire transaction secret from the appellant.
The purchasers were also inducted in the premises in a manner which clearly suggests that the re spondents were attempting to forestall the situation and to gain an undue advantage in a hurried and clandestine manner defeating the appellant 's attempt to go to court for appro priate relief.
The suit itself was filed on 18th April, 1987 within two days of the sale without any delay.
On that very day the appellant obtained an interim exparte order in the injunction application but when it was sought to be executed it was reported that the 4th respondent had already taken possession and in view of that the interim order was granted by bracketing the words "remaining 352 in possession" without giving an effect to it pending fur ther consideration of the interim application.
By consent of parties a Commissioner was appointed on 22.4.1987 itself.
The report of the Commissioner showed that not all the articles of Vendors have been removed and the moveables of the purchasers were also only in the process of being brought into the house.
These facts showed the anxiety of the fourth respondent to complete the taking of possession before any order could be obtained by the appellant from the Court.
The learned counsel also referred to the affidavit filed by the first respondent wherein she has still claimed that she is residing in the suit property and the affidavit filed by the fourth respondent in the suit as if he is residing somewhere else and not in the suit property.
The learned counsel also referred to some telephone directories, telephone numbers and addresses given therein which also show that the fourth respondent is residing and having an office in some other places also other then the suit prem ises.
These evidences go to show that the purchaser has occupied the disputed property merely for the purpose of establishing his claim and he did not vacate his earlier permanent residence.
On the other hand the appellant had to leave from the portion of the house where he was living as it was not possible for him to reside there with stranger.
The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession.
In such circum stances it is but just and necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellant 's rights to compel the purchaser or to deny joint possession.
These facts in our view clearly establish that not only a refusal to grant an interim mandatory injunction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant fox, the grant of such injunction.
In the result we allow the appeal, set aside the judgment of the High Court and restore that of the trial court with costs in this appeal.
We may add that our observations on facts are not to be taken as binding at the time of final disposal of the suit after trial.
We also make it clear that if the vendors desire to come and stay in the portion of the house which was in their possession earlier, they may indicate it to the Court and the trial court on such request will pass appro priate orders in that regard.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant along with his father and mother, were the joint owners of the suit property.
After the death of the appellant 's mother, he and his father executed an agreement dated 23rd August, 1951 by which they severed their status as joint owners and agreed to hold the property as tenants in common.
On 16th April, 1952 the appellant 's father trans ferred his undivided half share in the suit property in favour of his another son Sohrab.
Thus, the appellant and his brother Sohrab came to hold an equal undivided one half share each as tenants in common in respect of the said property.
After Sohrab 's death, his widow, the first respondent, and his 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 had 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 inter im/perpetual injunction restraining respondents 1, 2 and 3 from parting with possession of the suit property.
He fur ther claimed that if the said relief was not granted irrepa rable 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 report ed that the 4th respondent had already taken possession.
333 The suit and the notice of motion were resisted on the grounds that the appellant and respondents 1, 2 and 3 were owners of the property in equal moity but the property was not joint family property or property belonging to an undi vided 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 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 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 concerned the appellant and his family and the family of respondents 1, 2 and 3 were joint and undivided; that the case would fail 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 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.
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 sever ance in status and it is not possible to give a finding that there has been no partition between the parties, that the matter requires evidence on either side as to what extent the ground floor could have ever been considered as a family dwelling house; that granting of interim mandatory injunc tion will have the effect of virtually deciding the suit without a trial; and that the plaintiff has not made out a prima facie case that he would suffer irreparable damage if injunction was not granted or that the balance of conven ience was in his favour.
In that view, the learned Single Judge allowed the appeal and set aside the order granting the injunction.
Before this Court it was also contended on behalf of the appellant that the fourth respondent was fully aware of the limited and restrictive title of respondents 1, 2 and 3 and the bar for joint possession provided in the second para graph of section 44 of the Transfer of Property Act, and having purchased with such full knowledge he tried to over reach 334 the Court by keeping the whole transaction secret and taking possession Of the property purchased before the appellant could get legal redress from the Court.
Allowing the appeal, this Court, HELD: (1) The courts can grant interlocutory mandatory injunction in certain special circumstances.
[340E] (2) The relief of interlocutory mandatory injunction is 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.
But since the granting or non granting of such an injunction may cause great injustice or irreparable harm to one of the parties, the Courts have evolved certain guide lines.
[343F H] (3) Generally stated, the guidelines are: (1) The plain tiff has a strong case for trial.
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.
[344A B] Shepherd Homes Ltd. vs Sandham, ; Evans Marcgall & Co. Ltd.
Bertola SA, ; Films Rover International Ltd. & Ors.
vs Cannon Film Sales Ltd., ; Rasul Karim & Anr.
vs Pirubhai Amirbhai, ILR ; Champsey Bgimji & Co. vs The Jamna Flour Mills Co. Ltd., ILR 1914 (16) Born.
566; M. Kandaswami Chetty vs P. Subramania, ILR ; Israil vs Shamser Rahman, ILR and Nandan Pictures Ltd. vs Art Pictures, AIR 1956 Cal.
428, referred to.
(4) Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circum stances in each case.
[344C] (5) In considering the question of interim mandatory injunction in a suit filed under section 44 of the Act, the Court has also to keep in mind the restriction on the rights of the transferee to joint possession under that section.
[344D] 335 (6) In order to attract the second paragraph of section 44 of the Act the subject matter of the transfer has to be dwelling house belonging to an undivided family and the transfer is of a share in the same to a person who is not a member of the family.
[345A] Sultan Begam and Ors.
vs Debi Prasad, All 324; Khirode Chandra Ghoshal & Anr.
vs Saroda Prasad Mitra, ; Nil Kamal Bhattacharjya & Anr.
vs Kamakshya Charan Bhattacharjya & Anr., ; Sivaramayya vs Benkata Subbamma, AIR 1930 Madras 561; Bhim Singh vs Ratnakar, AIR 1971 Orissa 198 and Udayanath Sahu vs Ratnakar Bej, AIR 1957 Orissa 139, referred to.
(7) 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.
[349B] (8) 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.
[350D] (9) In the absence of a documents evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother.
Therefore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act.
[350B C] (10) Clause 6 of the agreement to sell clearly shows that the fourth respondent knew that respondents 1 to 3 had only a limited right to transfer their undivided one half share to a stranger purchaser and they comtemplated litiga tion in this regard.
The said sale was itself hurriedly executed in a hush hush manner keeping the entire transac tion secret from the appellant.
The purchasers were also inducted in the premises in a manner which clearly suggests that the respondents were attempting to forestall the situa tion and to gain an undue advantage in hurried and clandes tine manner defeating the appellant 's attempt to go 336 to court for appropriate relief.
The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession.
(11) The facts in the instant case clearly establish that not only a refusal to grant an interim mandatory in junction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant for the grant of such injunction.
[352F]


judgement:
No. 975 of 1986.
(Under Article 32 of the Constitution of India).
D.D. Thakur, V.C. Mahajan, section Markandaya, G.S. Rao, Sreepal Singh and Ms. Kusum Chowdhary for the Petitioners.
R N. Trivedi, S.C. Batra and Raju Ramachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The dispute in this group of writ petitions under Article 32 of the Constitution relates to allotment of land for residential purposes by New Okhla Industrial Development Authority (shortly known as 'NOIDA ').
NOIDA is a trans Jamuna housing project set up by the Uttar Pradesh Government in the year 327 1976.
Prior to the setting up of the NOIDA, the Defence Services Cooperative Housing Society Ltd. and other socie ties had acquired lands in the area for purposes of housing of their members and when the same came to be notified for acquisition for NOIDA, writ petition No. 9034 of 1983 was filed challenging the acquisition; the federation also filed a separate writ petition being 1588 of 1984.
Some other writ petitions by the different parties were also filed.
On 14th January, 1985, after hearing parties a Bench of this Court inter alia made the following directions: "Both sides presented a fair and nearly accurate picture of the present situation.
Spirit of re conciliation rather than confrontation prevailed all throughout.
All reasonable suggestions emanating from both sides either accepted or seriously considered by both sides with a view to implement ing the scheme under which plots were to be allotted.
Only three points remain which necessitated court 's intervention.
Having examined them we direct: (1) NOIDA shall hand over actual possession of plots to each allottee of each society involved in the dispute.
To identi fy them a list setting out their names has to be supplied within six weeks from today.
(2) Mr. G.L. Sanghi, learned counsel urged that NOIDA will be entitled to escalation charges for the year 1981 and 1982 which works out at the rate of Rs.20 per square metre.
He repeatedly pointed out that the NOIDA would be entitled to the same under the scheme.
May be there was substance in the submission.
However, having regard to the fact that a sum of Rs.5.50 crores has already been deposited by the allottees with the NOIDA for some time and as the scheme had not been implemented as per time schedule provided in the scheme itself, to meet possession of plot to each allottee had to be handed over some where in 1982 and which would be now done in 1985 pursuant to the directions yet without setting a precedent and having regard to the facts of this case and special circumstances pointed out to this Court with regard to the present position, we are of the opinion that the NOIDA is not entitled to escalation charges for the year 1981 and 1982.
(3) The third point of a minor difference was that a special 328 charge has to be paid by all allottees whose plots are said to be situated at a comparable advantageous position, such as, corner plots, plots abutting to the main road or both etc.
There may be advantage in taking the corner plot or a plot abutting on the road, but that is fortuitous and not be one 's volitional selection.
Having regard to the special facts of this case and the element of luck in getting a particular plot we direct that the NOIDA would not be enti tled to collect special charge or anything extra for such plots.
We order accordingly.
It was further pointed out that there were some applicants who applied for the plots but who failed to keep to the time schedule in the matter of payment.
If the number of such applicants had not been very large, the Court would have examined each case.
But the number of such applicants appears to be quite big.
Mr. Soli Sorabjee, learned counsel, in this con nection pointed out that under the interim order of this Court dated September 3, 1988, amongst others NOIDA was directed to reserve 269 acres of land in sectors 41 and 42 or in adjoining sectors in addition to the land already allotted to the petitioners.
Therefore, their cases deserve consideration as requisite area of land is available.
At the suggestion of the Court Mr. G.L. Sanghi, learned counsel agrees to appoint Shri Z.H. Kazmi, Law Assistant Registrar (Housing), Lucknow who would be specifi cally directed to look into the case of each such applicant and decide whether any one deserves allotment avoiding technical approach and by approaching the matter from the angle of social justice with broad vision.
If there is any dispute which cannot be resolved liberty to move this Court . . " On 16th December, 1985, the following order was made: "The parties are agreed that the dispute in regard to pay ment of interest and the eligibility for allotment of plots may be decided by Shri D.A. Desai, Chairman, Law Commission, as mediator and not as Arbitrator.
The parties agree that whatever decision is given by Shri D.A. Desai 329 will be accepted by them as binding and there will be no question of challenging it in any form whatsoever.
The parties also agree that simultaneous with the execution of documents possession of the plots shall be forthwith handed over to those who are admitted as eligible for allotment and interest shall be paid by them at the rate of 15% per annum from the date of the order made by this Court, namely, 2.4.1985, subject to adjustment one way or the other accord ing to the decision which may be given by Shri D.A. Desai.
" The decision contemplated by the December order took some time to be given and the report furnished to this Court came to be hotly debated.
More than three years have been taken on that account.
It is unnecessary to deal with the different problems which arose in the proceedings before this Court after submission of the report till the matter has been heard in the third week of January this year.
We suggested to Mr. Thakur, learned counsel appearing for the Federation of Co operative Housing Societies and Mr. Trivedi, learned Additional Advocate General of Uttar Pra desh appearing for NOIDA and counsel appearing for the different parties to sit across the table and work out an acceptable modality by which the problem could be best answered and we are happy to note that their efforts have been to a large extent successful and the scope of what at one time appeared to be an unending dispute had now been substantially reduced and confined to certain issues which require to be dealt with by this order of ours.
It is agreed that the total number of persons who are entitled to allotment is 2,380 and the Federation represent ing the various cooperative societies has drawn up the particulars of these 2,380 applicants.
At the hearing, counsel and NOIDA authorities present in Court had agreed to allotment of 90 acres out of the 269 acres set apart by this Court 's earlier order.
In a written note submitted by Mr. Thakur it has been brought to our notice that if their initial requirement of 130 acres is reduced to 90 acres, a plot of 112.5 square metres will have to be scaled down to 77.73; similarly a plot of 162 square metres will have to be reduced to 112.3 square metres; a plot of 202.5 square metres will have to be reduced to 140.45 square metres; and a plot of 250 square metres will have to be reduced to 173.59 square metres.
It has not been disputed that the four categories of plots were stipulated in the scheme.
If this scaling down is to be done the plots are 330 bound to be of odd sizes and working out may be difficult.
We have, therefore, decided that instead of 90 acres of land the total area to be released on that account should be 96.29 acres in all and different sizes of plots as provided in the scheme shall stand reduced to the sizes indicated below: section No. As per scheme Plots now to be allotted (Sq. metres} (Sq. metres) 1.
112.5 100 2. 162 130 3. 202 150 4.
250 180 Apart from 2,380 eligible allottees there are separate applications which are before the Court already and are being dealt with separately.
To meet their claims we are of the view that 71 decimals should also be set apart and the same would be subject to such orders as the Court may ulti mately make in these cases.
In the event of any area being unallotted the same would revert back to NOIDA.
The plots to be allotted are to be developed by NOIDA.
While the federation and the other petitioners wanted that a three months ' limit should be fixed it has been pleaded on behalf of the NOIDA that the time limit should be two years.
There is a limit to waiting and human patience and the span of the life of the applicants is not available to be extend ed by NOIDA.
Taking an overall picture of the matter we direct that a period of nine months beginning from 1st of March, 1990, is the limit within which developed plots shall be allotted to the 2,380 entitled persons now represented by the Federation and such other persons as referred to above.
The next relevant point for consideration is what should be the price to be paid.
We have already indicated that this Court in its order dated 14th January, 1985, had not agreed for any escalation charges.
More than five years have since been rolled by.
Turn of events have taken an unwieldy course.
Prices have gone up in every sphere and the rupee has lost its value over the years.
To bind NOIDA by the terms of its scheme at this point of time would not at all be fair.
We may point 331 out at this stage that these 2,380 persons have already deposited huge amounts of money said to be about five crores of rupees with NOIDA and the money has been held on account without utilisation, as no final decision had been taken.
Undoubtedly this money must be fetching interest.
Mr. Rama chandran learned counsel appearing for NOIDA has indicated that current rate per square metre is Rs. 1,200.
Taking into consideration the fact that these 2,380 members have waited too long for allotment of their plots, we are of the view that NOIDA should be permitted to charge @ Rs. 1,000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12% interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every person included in the figure of 2,380 within three months from now in monthly instalments.
The 1st instalment is to be paid on or before 31st March, 1990; the 2nd instalment to be paid on or before 30th April, 1990; and the 3rd instalment to be paid on or before 31st May, 1990.
It shall be the obligation of the Federation to duly notify every member of the direction and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA would thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
The terms in regard to allotment for the remaining few persons as stated above shall also be the same.
Town planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the federation of the different societies would cooperate with NOIDA in this regard.
The order reserving 269 acres of land is vacated, sub ject to the allotments indicated.
The writ petition is disposed of with these directions.
There shall be no order as to costs.
P.S.S. Petitions disposed of.

summary:
Certain cooperative housing societies comprising of the petitioners and others had acquired lands in the trans Jamuna area of Uttar Pradesh prior to the setting up of the New Okhla Industrial Development Authority in 1976.
When the said lands came to be notified for the Development Authority writ petitions were filed in 1983 under Article 32 of the Constitution for quashing the acquisition.
In its order dated January 14, 1985 the Court had directed the Authority to hand over actual possession of plots to allottees in volved in the dispute.
Since a dispute had arisen as to the eligibility of a large number of applicants who had failed to keep to the time schedule in the matter of payment the Court in its interim order dated September 2, 1983 had directed the Authority to reserve 269 acres of land in addition to the land already allotted.
The petitioners in the instant case belong to this category.
The total number of persons entitled to allotment has been determined at 2,380.
The Authority 's scheme for the petitioners had stipulated four sizes of plots viz. 112.5 sq. metres, 162 sq. metres, 202.5 sq. metres and 250 sq. metres.
They, therefore, claimed an area of 130 acres out of the 269 acres set apart for them.
The Authority, however, sought to reduce this area to 90 acres and the plot area to 77.73, 112.3, 140.45 and 173.53 sq. metres respectively.
Disposing of the petitions, the Court.
HELD: If the scaling down from 130 acres to 90 acres is to be done the plots are bound to be of odd sizes and work ing out may be difficult.
Therefore, instead of 90 acres of land the total area to be released on that account should be 96.29 acres and the different sizes of plots as provided in the scheme shall stand reduced to 100 sq. metres, 326 130 sq. metres, 150 sq. metres and 180 sq. metres respec tively.
71 decimals of land should also be set apart for the other applicants being dealt with separately.
The plots are to be developed by the Authority in accordance with the norms laid down, and allotted within a period of nine months beginning from 1st of March, 1990.
[329H 330F, 331F] Prices have gone up in every sphere.
To bind the Author ity by the terms of its scheme at this point of time would not at all be fair.
These 2,380 persons have already depos ited huge amounts of money said to be about five crores of rupees with the Authority and the money has been held on account without utilisation, as no final decision had been taken.
The current rate per square metre is Rs.1,200.
Taking into consideration the fact that the members have waited too long for allotment of their plots, the Authority should be permitted to charge Rs.1,O00 per square metre.
Every member who has deposited any sum of money with the Authority against proposed allotment shall ble entitled to 12% inter est on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shah have to be paid by every person includ ed in the figure or 2,380 within three months from the date of the order in monthly instalments.
Failure to pay any of the instalments within the time limit indicated shall dis qualify such person from allotment.
The terms in regard to allotment for the remaining few persons shall also be the same.
[330G 331E]