all are jointly and severally liable to the claim; but however, the Road Transport Corporation, in terms of the lease agreement entered into with the registered owner, would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer.

Page 1 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5293 OF 2010 Managing Director, K.S.R.T.C. ... Appellant Versus New India Assurance Co.Ltd. & Ors. ... Respondents With Civil Appeal No.6641 of 2010 MD Karnataka Road Transport Corpn. & Anr. … Appellants Versus Thippamma & Ors. … Respondents J U D G M E N T ARUN MISHRA, J. 1. The questions involved in the appeals are whether in the wake of lease agreement entered into by registered owner with Karnataka State Road Page 2 2 Transport Corporation (hereinafter referred to as the ‘KSRTC’), the registered owner and insurer along with KSRTC can be fastened with the liability to make payment to the claimants and whether KSRTC can recover the amount from registered owner and its entitlement to seek indemnification from insurer? 2. The facts giving rise to Civil Appeal No.5293 of 2010 reflect that the accident in question was caused by the bus which was driven under the control of KSRTC. The bus was owned by respondent no.2, T.M. Ganeshan, insured by the New India Assurance Co. Ltd. Admittedly, an agreement dated 28.2.2002 was entered into between the KSRTC and owner respondent no.2. The MACT, Tumkur, Karnataka on 25.6.2007 allowed the claim petition preferred by the claimants and awarded a sum of Rs.4,09,000/- with interest @ 6% p.a. 3. In view of the agreement between KSRTC and the owner of the bus, the liability was fastened upon the owner and the insurer of the vehicle jointly and severally to make the payment of compensation, not on KSRTC. Aggrieved thereby, the insurer preferred an appeal before the High Court of Karnataka. The same has been allowed by the impugned judgment and order dated 20.2.2009. The High Court has allowed the appeal filed by the insurer and held that the liability to make the payment of compensation is Page 3 3 that of KSRTC alone. Aggrieved thereby, the KSRTC has come up in the appeal before us. 4. In Civil Appeal No.6641 of 2010, the bus was plied similarly on hire agreement by the KSRTC. The Claims Tribunal has fastened the liability jointly and severally upon the KSRTC and upon Internal Security Fund, Bangalore. Aggrieved thereby, the appeal was preferred in the High Court and the same has been dismissed. Hence, Civil Appeal No.6641 of 2010 has been filed in this Court. 5. It was submitted by Shri S.N. Bhat, learned counsel for the appellant that the High Court has erred in fastening the liability upon the KSRTC. In view of the lease agreement for hire entered into between the KSRTC and the owner, the owner could not escape the liability to make the payment of compensation. As such, the insurer was liable to indemnify the owner and to make the payment of compensation. The liability could not have been fastened upon the KSRTC. Learned counsel has placed reliance on the decision of this Court in Uttar Pradesh State Road Transport Corporation v. Kulsum & Ors., (2011) 8 SCC 142. 6. Shri Vishnu Mehra, learned counsel appearing on behalf of New India Assurance Co. Ltd. contended that in view of the fact that the vehicle was Page 4 4 plied under the complete control and supervision of KSRTC, it cannot escape from the liability to make the payment of compensation. He has relied upon the decision of this Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & Ors., (1997) 7 SCC 481 and the definition of the owner under Section 2(30) of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’). He has consequently submitted that owner and insurer have rightly been exonerated by the High Court. 7. It was submitted on behalf of the claimants that they can recover the compensation from the KSRTC, owner and insurer jointly and severally. 8. The owner has been defined under Section 2(30) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1988). The definition in the Act of 1988 is extracted hereunder : “2(30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;” 9. The definition of owner under Section 2(19) of the Motor Vehicles Act, 1939 read as under:- Page 5 5 “2(19) "owner" means, where the person, in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement.” 10. Under the Act of 1988, the owner means a registered owner and where the agreement on hire-purchase or an agreement of hypothecation has been entered into or lease agreement, the person in possession of the vehicle is treated as an owner. 11. Section 146 of the Act of 1988 prescribe the necessity for insurance against third party risk. Motor vehicle cannot be used in a public place without policy of insurance complying with the requirement of Chapter X1. Exemption has been carved out to the vehicles owned by the Central or State Governments and used for government purposes. Under sub-Section (3) of Section 146, it is open to the appropriate Government to exempt the vehicle owned by the Central or State Governments if it is used for Government purposes or any local authority or any State transport undertaking. 12. Section 147 of the Act of 1988 deals with the requirements of policy and limits of liability. The statutory requirement under Section 147 is that policy of insurance must be a policy which is issued by authorised Insurer and insures the person or class of persons specified in the policy to the Page 6 6 extent specified in sub-section (2)(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; and (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. 13. Certain exception have been carved out in the proviso to sub-section (1) of section 147. It is contained in proviso (ii) that the policy shall not be required to cover any contractual liability. Limits of the liability have been provided in Section 147(2). The liability under Section 147(2)(1)(b) is the amount of liability incurred and with respect to any damage to any property of a third party, a limit of Rs.6,000/-. Section 147(5) provides that notwithstanding anything contained in any law for the time being in force, an insurer shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. 14. Section 157 of the Act 1988 deals with the deemed transfer of certificate of insurance. Provisions of Section 157 are as under: Page 7 7 “157. Transfer of certificate of insurance.— (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.” It is apparent from Section 157(1) of the Act of 1988 that certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. Section 157(2) of the Act provides that the transferee to apply within 14 days from the date of transfer in the prescribed form to make necessary changes in the certificate of insurance. 15. Before dilating further, we deem it appropriate to advert to the certain clauses in the lease agreement on the basis of which vehicles are plied on Page 8 8 hire by the KSRTC. The owner of the private bus has to provide new bus to KSRTC for the purpose of hire. 16. As per clause 6, the owner of the private bus to discharge statutory liability. Clauses 6(i) and (ii) of lease agreement are quoted below: “6(i) In case the owner of the private bus defaults in the discharge of any of his statutory liability, KSRTC reserves the right to deduct such amounts from the amount payable to the owner as it is sufficient to discharge the liability, and if the liability is more than the amounts payable by KSRTC to the owner, the owner alone shall be liable to discharge the liability and/or to make good the amount to KSRTC, if discharged by KSRTC. 6(ii) If because of any default by the bus owner or by his/her drivers/other employees, agent representative, any liability comes on KSRTC, the KSRTC has the right to recover the amount either from the bills payable or the security deposit and to take further steps to recover the balance from the private owner by any lawful means.” 17. The Conductor was to be provided under clause 7(iv) by the KSRTC and was entitled to collect the fare and luggage charges etc. for and on behalf of KSTRC. 18. As per clause 8, Drivers were to be engaged and provided by the owner. Salary etc. was also to be paid by the owner and is subject to other Page 9 9 conditions such as they should not have been dismissed from the services of the Central Government etc. and should possess requisite licence. 19. Clause 14 of lease agreement with respect to insurance coverage is also relevant which is extracted as under: “14. The owner of the private bus shall keep the hired bus duly insured under a Motor Vehicle comprehensive insurance police covering all risks and all such costs shall be born by the owner of the private bus. In case of failure to have a valid comprehensive insurance policy. The bus will not be used for KSRTC’s operations and it will be deemed that the bus has not been made available to KSRTC for scheduled operations, with all consequent of effects. The insurance shall cover 61passengers.” 20. Clause 16 relating to liability as to accidents is also important for the purpose of decision of the case. Clauses 16(a) (b) and (c) are extracted as under:- “(a) The owner of the bus alone shall be solely liable for any claim arising out of any accident, damages or loss or hurt caused during the operation of the bus. The KSRTC shall not be liable for any claims arising out of the use of the buses, including claims made in connection with the impurities or loss of life sustained by passengers, bus crew or any other road user or to any property/person. Besides, all tortuous liability if any, shall be borne by the owner or the insurer of the vehicle themselves. However the accidents should be reported to the KSRTC office/Depot. Page 10 10 (b) KSRTC may make payment of ex-gratia amount to the victims in event of accident of such private hired buses while on KSRTC operations as per the KSRTC’s prevailing norms which shall be recovered from any amounts due to the owner of such private buses or from security Deposit etc. Further, the owner of such private bus should make prompt payment of ‘no fault liability’ or any other claim under the law for such accident victims. In case KSRTC is compelled to make such payment on behalf of the owner of private buses, it shall be recovered from any amount due to the owner by KSRTC or receivable to him from Insurance Company or other debtors etc. In case of non-payment to non-recovery of such amount by KSRTC within 15 days, interest at 15% per annum shall also be recoverable. For delays beyond 30 days KSRTC may amount or adjustment thereof towards hire charges payable. (c) It shall be the responsibility of the owner of the private bus to produce at his own cost, the driver/bus before the court of ……… and before the police authorities whenever required in case of accident or any other contingencies or on order or directions by the Judicial Or Executive authorities ……. charges shall be payable by KSRTC in such cases.” It is apparent from clause 16(a) that in case of accident claim, the KSRTC shall not be liable for any claim arising out of use of buses including loss of life sustained by passengers or any other user or to any property/person. If KSRTC makes any ex gratia payment in the case of accident, the same shall be recovered from any amount due to the owner in case KSRTC is made liable to make payment of compensation on behalf of Page 11 11 private buses it shall be recovered from any amount due to the owner by KSRTC or receivable to him from Insurance Company etc. 21. Clauses 17, 18, 19 and 20 are also relevant they are extracted below: “17. The KSRTC shall not be liable for any loss caused to the buses hired, at any point of time including during the period of agitations, strikes, accidents, natural calamities etc. 18. The owner of the private bus shall be liable for shall alone discharge or meet all claims including fines and penalties arising out of violation of traffic Rules, and Regulations, Statutes, Acts, Rules and Regulations etc., in force for act of omissions or commissions committed either by his/her drivers or by any other person not authorised to drive. The owner of the private bus shall be liable and shall meet and discharge any claim for compensation or damages on account of tortuous liability. 19(a) The owner of the private bus shall provide and make available bus/buses as per the contract to KSRTC on all days or operation in time as per the schedule departing time and also as so as to cover the entire schedule Kms. Duty. (b) The owner of the private bus shall not withdraw any bus from the operation except with advance notice before 24 hours and with prior written consent of the depot manager concerned of KSRTC to do so. In case any violation of this clause, the owner shall be liable for imposition of penalties by the KSRTC. 20(1)(a) The KSRTC on its part agrees to pay hire charges to the owner at the rates inculcation in the hiring rate charts at Annexure A1 and A2, subject to the rules, terms and conditions of the contract. The hiring rate applicable shall be Page 12 12 based on the schedule Kms. of the route allotted to the hired bus, except as otherwise provided herein.” 22. The main question for consideration is whether the registered owner and insurer can escape the liability in view of the provisions contained in the Act and in view of the aforesaid terms and conditions of the lease agreement. The question also arise whether claimants can also recover the amount from KSRTC. 23. The High Court has held that actual control of the bus was with the KSRTC and the driver was driving the bus under its control. Relying upon the decisions in National Insurance Co. Ltd. V. Deepa Devi & Ors., (2008) 1 SCC 414 and Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & Ors., (1997) 7 SCC 481, it was held that KSRTC to be the owner under Section 2(30) of the Act. There is no liability of the registered owner as such insurer cannot be saddled with liability to indemnify. Hence, the registered owner and the insurer have been exonerated. The KSRTC has been fastened with the liability. In our opinion, decision of High Court is not sustainable. The provisions contained in the Act are clear. No vehicle can be driven without insurance as provided in Section 147 whereas clause 14 of lease agreement Page 13 13 between KSRTC and the owner clearly stipulate that it shall be the liability of the owner to provide the comprehensive insurance covers for all kind of accidental risks to the passengers, other persons/property. The provisions of said clause of the agreement are not shown to be opposed to any provision in the Contract Act or any of the provisions contained under the Act of 1988. Hiring of public service vehicles is not prohibited under any of the provisions of the aforesaid laws. It could not be said to be inconsistent user by KSRTC. The agreement is not shown to be illegal in any manner whatsoever nor shown to be opposed to the public policy. 24. The policy of insurance is contractual obligation between the insured and the insurer. It has not been shown that while entering into the aforesaid agreement of lease for hiring the buses, any of the provisions contained in the insurance policy has been violated. It has not been shown that owner could not have given bus on hire as per any provision of policy. It was the liability of the registered owner to provide the bus regularly, to employ a driver, to make the payment of salary to the driver and the driver should be duly licenced and not disqualified as provided in the agreement though buses were to be plied on the routes as specified by the KSRTC and hiring charges were required to be paid to the registered owner. In the absence of any stipulation prohibiting such an arrangement in the insurance policy, we Page 14 14 find that in view of agreement of lease the registered owner has owned the liability to pay. The insurer cannot also escape the liability. 25. Apart from that what is provided under Section 157 of the Act of 1988 is that the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. Even if there is a transfer of the vehicle by sale, the insurer cannot escape the liability as there is deemed transfer of the certificate of insurance. In the instant case it is not complete transfer of the vehicle it has been given on hire for which there is no prohibition and no condition/policy of insurance as shown to prohibit plying of vehicle on hire. The vehicle was not used for inconsistent purpose. Thus, in the absence of any legal prohibition and any violation of terms and conditions of the policy, more so, in view of the provisions of Section 157 of the Act of 1988, we are of considered opinion that the insurer cannot escape the liability. 26. Now, we come to the question of exclusion of contractual liability under second proviso to Section 147(1). When we read provisions of Section 147 with Section 157 together, it leaves no room for any doubt that there is deemed transfer of policy in case of transfer of vehicle. Hence, liability of insurer continues notwithstanding the contract of transfer of Page 15 15 vehicle, such contractual liability cannot be said to be excluded by virtue of second proviso to Section 147(1) of Act of 1988. Higher purchase agreement, an agreement for lease or an agreement for hypothecation are covered under Section 2(30) of the Act of 1988. A person in possession is considered to be an owner of the vehicle under such agreements. In case such contractual liability is excluded then anomalous results would occur and financer under higher purchase agreement would be held liable and so on. In our view, an agreement for lease on hire cannot be said to be contract envisaged for exclusion under contractual liability in second proviso to Section 147(1) of the Act of 1988. The High Court has erred in holding otherwise. 27. The KSRTC can also be treated as owner for the purposes of Section 2(30) of the Act of 1988 plying the buses under lease agreement. The insurance company admittedly has insured the vehicle and taken the requisite premium and it is not a case set up by the insurer that intimation was not given to the insurance company of the hiring arrangement . Even if the intimation had not been given, in our opinion, the insurer cannot escape the liability to indemnify as in the case of hiring of vehicle intimation is not required to be given. It is only in the case of complete transfer of the vehicle when change of registration particulars are required under Section 157 of the Page 16 16 Act, an intimation has to be given by the transferee for effecting necessary changes in the policy. Even otherwise, that would be a ministerial act and the insurer cannot escape the liability for that reason. When the KSRTC has become the owner of the vehicle during the period it was on hire with it for the purpose of Section 2(30) of the Act by virtue of provisions contained in Section 157 of the Act, the insurance policy shall be deemed to be transferred. As such, insurer is liable to make indemnification and cannot escape the liability so incurred by the KSRTC. 28. In RSRTC v. Kailash Nath Kothari (supra), question of liability of insurance company did not come up for consideration. The vehicle was taken by RSRTC from its owner Sanjay Kumar and it was being plied on the route by RSRTC. The case arose out of accident date 17.7.1981 under the Act of 1939. The definition of second owner under section 2(19) of Act of 1939 came up for consideration before this Court, and conditions 4 to 7 and 15 of agreement between RSRTC and the owner, this Court held that vehicle in question was in possession and actual control of RSRTC as such it cannot escape from liability. Relevant portion of decision is extracted below:- Page 17 17 “15. Conditions 4 to 7 and 15 of the agreement executed between the RSRTC and the owner read: “4. The Corporation shall appoint the conductor for the operation of the bus given on contract by the second party and the conductor of the Corporation shall do the work of issuing tickets to the passengers, to receive the fare, to let all the passengers get in and get out of the bus, to help the passengers to load and unload their goods, to stop the bus at the stops fixed by the Corporation and to operate the bus according to timetable. 5. The tickets, waybills and other stationery shall be supplied by the Corporation to the said conductor of the Corporation. 6. The driver of the bus shall have to follow all such instructions of the conductor, which shall be necessary under the rules for the operation of the bus. 7. The driver of the bus shall comply with all the orders of the Corporation or of the officers appointed by the Corporation. 15. Upon the accident of the bus taking place the owner of the bus shall be liable for the loss, damages and for the liabilities relating to the safety of the passengers. The Corporation shall not be liable for any accident. If the Corporation is required to make any payment or incur any expenses through some court or under some mutual compromise, the Corporation shall be able to recover such amounts from the owner of the bus after deducting the same from the amounts payable to him.” 16. The admitted facts unmistakably show that the vehicle in question was in possession and under the actual control of RSRTC for the purpose of running on the specified route and was being used for carrying, on hire, passengers by the RSRTC. The driver was to carry out instructions, orders and directions of the conductor and other officers of the RSRTC for operation of the bus on the route specified by the RSRTC. 17. The definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider Page 18 18 sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of “owner” to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the “owner” is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete “control” to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the Page 19 19 employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC. 18. Reliance placed by learned counsel for the appellant on Condition No. 15 of the agreement (supra) in our view is misconceived. Apart from the fact that this clause in the agreement between the owner and the RSRTC, to the extent it shifts the liability for the accident from the RSRTC to the owner, may be against the public policy as opined by the High Court, though we are not inclined to test the correctness of that proposition of law because on facts, we find that RSRTC cannot escape its liability to pay compensation. The second part of Condition No. 15 makes it abundantly clear that the RSRTC did not completely shift the liability to the owner of the bus because it provided for reimbursement to it in case it has to pay compensation arising out of an accident. The words “if the Corporation is required to make any payment or incur any expenses through some court or under some mutual compromise, the Corporation shall be able to recover such amounts from the owner of the bus after deducting the same from the amounts payable to him” in the later part of Condition No. 15 leave no ambiguity in that behalf and clearly go to show the intention of the parties. Thus, RSRTC cannot escape its liability under Condition No. 15 of the agreement either. Thus, Page 20 20 both on facts and in law the liability to pay compensation for the accident must fall on the RSRTC.” It is apparent that question of the liability of the insurer did not come up for consideration and also the relevant statutory provisions relating thereto in aforesaid decision. This Court, considering clause 16 of the agreement entered into by RSRTC and owner, held that RSRTC did not completely shift the liability to the owner of the bus in case it has to pay compensation arising out of an accident. In the instant cases also there are certain clauses referred to above which indicate that if the KSRTC has to make the payment, it can recover the same from the owner out of the amount payable by it or from the amount payable by the insurer to the owner. On the strength of decision in RSRTC v. Kailash Nath Kothari (supra), the KSRTC being in actual control of the vehicle would also be liable to make the compensation, however, in our opinion it can recover the amount from the registered owner or insurer, as the case may be. In fact of the case, vis-à-vis, the claimants’ liability would be joint and several upon the KSRTC, registered owner and the insurer. 29. In National Insurance Co. v. Deepa Devi (supra), vehicle was under requisition by the State Government and that possession on requisition was not covered by the definition of the owner under section 2(30) in the Act of Page 21 21 1988 or the Act of 1939. It was held by this Court as the Motor Vehicles Act did not envisage such a situation. Owner in such a case has to be understood from common sense point of view. Thus, the State was held liable to make the payment of compensation. The question was altogether different in the aforesaid case. 30. In Godavari Finance Company v. Degala Satyanarayanamma & Ors., (2008) 5 SCC 107, definition of owner came up for consideration. It was held that the name of the financer was incorporated in the registration book as owner. The respondent was held to be owner of the vehicle which was purchased by him on being financed by Godavari Finance Company. The financer could not be held liable to make the payment of compensation as definition of the owner in the Act of 1939 is a comprehensive one as vehicle which is the subject matter of hire purchase agreement, the person in possession of the vehicle under that agreement shall be the owner. Thus, the name of the financer in the certificate would not be decisive for determination as to who was the owner of the vehicle. In the case of hire purchase agreement, financer cannot ordinarily be treated to be the owner and the person in possession is liable to pay damages for the motor accident. This Court has held thus: Page 22 22 “15. An application for payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorily insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.” (emphasis supplied by us) This Court has observed in Godavari Finance Company (supra) that insurance company in such a case becomes a necessary party as it would have to reimburse the owner. 31. In Uttar Pradesh State Road Transport Corporation v. Kulsum & Ors., (2011) 8 SCC 142, this Court has considered the question of vehicle given on hire by owner of the vehicle to UPSRTC with its existing and running insurance policy. It was held that the UPSRTC have become the owner of the vehicle during the specified period and vehicle having been Page 23 23 insured at the instance of the original owner, it would be deemed that vehicle was transferred alongwith insurance policy to UPSRTC. The insurer cannot escape the liability to pay the compensation. The appeal preferred by UPSRTC was allowed. The instant cases are more or less the same and the decision of this Court in UPSRTC v. Kulsum (supra) also buttress the submission raised by KSRTC. This Court has held as under: “30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation. 31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.” 32. In HDFC Bank Limited v. Reshma & Ors., (2015) 3 SCC 679, definition of owner under the provisions of Section 2(30) of the Act of 1988 came up for consideration before a bench of 3 judges of this Court. This Page 24 24 Court referred to the decisions of Godavari Finance Company (supra) and Pushpa alias Leela & Ors. v. Shakuntala & Ors., (2011) 2 SCC 240 etc. in which the question arose whether the liability to pay compensation amount as determined by the Tribunal was of the purchaser of the vehicle alone or whether the liability of the recorded owner of the vehicle was co-extensive. This Court in HDFC Bank Limited v. Reshma & Ors.(supra) held thus: “22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Mohan Benefit (P) Ltd. V. Kachraji Raymalji (1997) 9 SCC 103, in our considered opinion, was inappropriate because in the instant case all the documents were filed by the Bank. In the said case, the two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. In the decision in Rajasthan SRTC v. Kailash Nath Kothari,(1997) 7 SCC 481 the Court fastened the liability on the Corporation regard being had to the definition of the “owner” who was in control and possession of the vehicle. Similar to the effect is the judgment in National Insurance Co. Ltd. V. Deepa Devi, (2008) 1 SCC 414. Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the Page 25 25 insurance company. In Pushpa v. Shakuntala case, (2011) 2 SCC 240 the learned Judges distinguished the ratio in Deepa Devi on the ground that it hinged on its special facts and fastened the liability on the insurer. In UPSRTC v. Kulsum, (2011) 8 SCC 142, the principle stated in Kailash Nath Kothari was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner. 23. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration. 24. In Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142, a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with Respondent 2. Respondent 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control Page 26 26 and possession of the vehicle. It was the absolute fault of Respondent 2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that Respondent 2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable.” This Court has held that even when there was an agreement of and vehicle has been insured and agreement holder is treated an owner, the insurer cannot escape the liability to make indemnification. 33. In view of the decision in HDFC Bank Limited v. Reshma & Ors. (supra), the insurer cannot escape the liability, when ownership changes due to the hypothecation agreement. In the case of hire also, it cannot escape the liability, even if the ownership changes. Even though, KSRTC is treated as owner under Section 2(30) of the Act of 1988, the registered owner continues to remain liable as per terms and conditions of lease agreement lawfully entered into with KSRTC. 34. In view of the aforesaid discussion, we hold that registered owner, insurer as well as KSRTC would be liable to make the payment of Page 27 27 compensation jointly and severally to the claimants and the KSRTC in terms of the lease agreement entered into with the registered owner would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer. 35. The appeals are, accordingly, allowed. Parties to bear their own costs. ........................................CJI. (H.L. Dattu) New Delhi; ….......................................J. October 27, 2015. (Arun Mishra)

(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