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(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. v. Sandham, [1970] 3 All ER 402; Evans Marcgall & Co. Ltd. . Bertola SA, [1973] 1 All ER 992; Films Rover International Ltd. & Ors. v. Cannon Film Sales Ltd., [1986] 3 All ER 772; Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 (38) Bom. 381; Champsey Bgimji & Co. v. The Jamna Flour Mills Co. Ltd., ILR 1914 (16) Born. 566; M. Kandaswami Chetty v. P. Subramania, ILR (1918) (4) Mad. 208; Israil v. Shamser Rahman, ILR 1914 (41) Cal. 436 and Nandan Pictures Ltd. v. 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. v. Debi Prasad, [1908] ILR 30 All 324; Khirode Chandra Ghoshal & Anr. v. Saroda Prasad Mitra, [1910] 7 IC 436; Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539; Sivaramayya v. Benkata Subbamma, AIR 1930 Madras 561; Bhim Singh v. Ratnakar, AIR 1971 Orissa 198 and Udayanath Sahu v. 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. [351 F; 352D-E] (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]

PETITIONER:
DORAB CAWASJI WARDEN

Vs.

RESPONDENT:
COOMI SORAB WARDEN & ORS.

DATE OF JUDGMENT13/02/1990

BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
RAMASWAMI, V. (J) II

CITATION:
 1990 AIR  867  1990 SCR  (1) 332
 1990 SCC  (2) 117  JT 1990 (1) 199
 1990 SCALE  (1)166


ACT:
    Transfer  of Property Act: Section 44--Grant of  interim
mandatory injunction in suit--Court to keep in mind restric-
tion on right of transferee to joint possession.



HEADNOTE:
    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. v. Sandham, [1970] 3 All  ER 402;
Evans Marcgall & Co. Ltd. . Bertola SA, [1973] 1 All ER 992;
Films  Rover International Ltd. & Ors. v. Cannon Film  Sales
Ltd.,  [1986] 3 All ER 772; Rasul Karim & Anr. v.  Pirubhai
Amirbhai,  ILR 1914 (38) Bom. 381; Champsey Bgimji & Co.  v.
The Jamna Flour Mills Co. Ltd., ILR 1914 (16) Born. 566;  M.
Kandaswami Chetty v. P. Subramania, ILR (1918) (4) Mad. 208;
Israil v. Shamser Rahman, ILR 1914 (41) Cal. 436 and  Nandan
Pictures  Ltd. v. 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. v. Debi Prasad, [1908] ILR 30 All
324; Khirode Chandra Ghoshal & Anr. v. Saroda Prasad  Mitra,
[1910] 7 IC 436; Nil Kamal Bhattacharjya & Anr. v. Kamakshya
Charan Bhattacharjya & Anr., AIR 1928 Cal. 539; Sivaramayya
v.  Benkata  Subbamma, AIR 1930 Madras 561;  Bhim  Singh  v.
Ratnakar, AIR 1971 Orissa 198 and Udayanath Sahu v. 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. [351 F; 352D-E]
    (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]



JUDGMENT:
    CIVIL  APPELLATE JURISDICTION: Civil 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. v. Sandham, [1970] 3 All ER 402,
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. v. Bertola SA, [1973] 1 All
ER 992 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. v.
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. v.  Agroexpon,
[1986] 1 All ER 901 at 906, (1986) 1 WLR 657 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 (1975) 1 All ER 504 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 v. Global Natural  Resources plc,
[1984] 1 All ER 225, 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.  v.
Pirubhai  Amirbhai, ILR 1914 38 Bom. 381, 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. v. 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. v. Jamna  Flour  Mills Co.
(supra).  In Israil v. 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. v. 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. v. Debi Prasad, [1908] ILR  30 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 v. 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. v.  Saroda  Prosad  Mitra,
[1910] 7 IC 436 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. v. Kamak-
shya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539  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  v. 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 v. Venkata Subbamma
&  Ors., AIR 1930 Madras 561. The next decision to be  noted
is  the one reported in Bhim Singh  v. 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 v. 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.
353



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