Transfer of Property Act (IV of 1882), S. 44 – partition Act (IV of 1893), S. 4 – Grant of interim mandatory injunction – Special considerations —Expression ‘dwelling house' belonging to an undivided family' in second paragraph of s. 44 — Meaning — Dwelling house which has not been divided or partitioned among the members of the family – Even if the family is divided in status but the property has not been divided by metes and bounds – Interim mandatory injunction.
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.
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 ‘dwelling house belonging to an undivided family' within the meaning of Section 44 of the Act. The expression ‘dwelling house belonging to an undivided family' in s. 44 of T.P. Act 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. Even if the family is divided in status but the property has not been divided by metes and bounds, it would be within the provision of s. 44 of T.P. Act
In order to attract the second paragraph of this section the 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.
On the second and third ingredients having regard to the restriction on the rights of a transferee 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 mischief or inconvenience which is likely to ensue from withholding 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.
read HERE 1990 PLRonline 0002 (SC)