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Jogendra Nath Mondal v. Adhar Chandra Mondal
Factual and Procedural Background
This appeal arises from a suit filed by the Plaintiff-Respondent seeking a permanent injunction restraining the Defendant from taking joint possession of a homestead property. The property originally belonged to a family as an undivided joint family dwelling-house. The Defendant, Jogendra Nath, purchased a share of the property from Narayani (widow of Siddheshwar) and his grandsons. The Plaintiff contended that the Defendant, as a stranger purchaser, was not entitled to joint possession of the homestead and sought a declaration to that effect along with an injunction. The Defendant claimed to be an agnatic relative, denied the property was a homestead, and asserted that the suit was not maintainable. Both lower Courts ruled in favor of the Plaintiff, holding that the property was an undivided family dwelling-house, there was no prior partition, and the Defendant was not a family member, thereby restraining him from taking joint possession. The Defendant appealed against this decision.
Legal Issues Presented
- Whether the suit framed by the Plaintiff to permanently restrain the Defendant (a stranger purchaser) from taking joint possession of the homestead is maintainable in law.
- The interpretation and application of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act in relation to the rights of a stranger transferee to joint possession of a family dwelling-house.
- Whether a stranger transferee can be granted joint possession or an injunction preventing possession under the circumstances.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant, being a stranger purchaser, is not entitled to joint possession of the undivided family dwelling-house.
- The Plaintiff sought a declaration that the property is an undivided joint family dwelling-house and an injunction to restrain the Defendant from taking joint possession.
- Argued that no stranger transferee can be placed in joint possession of a homestead through Court proceedings.
Defendant's Arguments
- Claimed to be an agnatic relative of the Plaintiff’s family.
- Contended that the property in question was not a homestead and that some portions were not part of any joint homestead.
- Asserted that members of the family had been in separate possession after partition.
- Maintained that the suit as framed was not maintainable and that the relief claimed was not available to the Plaintiff.
- Argued there is no legal provision preventing an outsider transferee from obtaining amicable possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Girijakanta Chakrabarti v. Mohin Ch. Acharyya | Proper procedure when a stranger purchaser seeks joint possession of a homestead is either delivery of possession by partition or a separate suit for partition. | Used to illustrate that a stranger purchaser cannot obtain joint possession by decree and must seek partition separately. |
| Ballison v. Guildford | Principles governing the grant of injunctions in equity, requiring that the threatened act will inevitably violate a right. | Applied to assess whether the Plaintiff’s threatened injunction claim met the standard for equitable relief. |
| Rajani Kanta Sen v. Sita Kumari | Considered the effect of a decree and order for possession obtained by a stranger purchaser and the estoppel of co-sharers from preventing execution of such decree. | Referenced to show that once a decree for possession is obtained, co-sharers cannot restrain execution by injunction and that objections must be raised before decree. |
Court's Reasoning and Analysis
The Court analyzed the applicability of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act to the case. Section 44 restricts a stranger transferee from acquiring joint possession or common enjoyment of a family dwelling-house, emphasizing that such transferee does not become a co-parcener. The Court clarified that while the transferee may acquire rights to the transferred share, this does not confer a right to joint possession. The Partition Act’s Section 4 was found to be procedural and not directly relevant to restraining possession.
The Court further reasoned that the negative protection in Section 44 prevents forcibly placing a stranger transferee in joint possession but does not create a positive right for family members to eject such transferee or restrain amicable possession. The Plaintiff’s claim for injunction was examined under principles of tort and equity, referencing Ballison v. Guildford, and was found not to show an inevitable violation of rights or tortious conduct by the Defendant.
Moreover, the Court observed that a co-sharer cannot be restrained from transferring or letting out his share, even if it leads to possession by a stranger transferee. The law permits such transfers and does not provide a remedy to co-sharers to prevent amicable possession by outsiders. The Court also considered precedent from Rajani Kanta Sen v. Sita Kumari, which emphasized that once possession is decreed and ordered, co-sharers cannot seek injunction to prevent execution.
Consequently, the Court concluded that the suit as framed, impleading only the stranger transferee and seeking permanent injunction against possession, is misconceived and not maintainable.
Holding and Implications
The appeal is allowed and the suit is dismissed.
The Court held that the Plaintiff’s suit to permanently restrain the Defendant, a stranger purchaser, from taking joint possession of the homestead is not maintainable. The decision means that a stranger transferee cannot be forcibly placed in joint possession but also that family members do not have a positive legal right to enjoin such possession or eject the transferee through such a suit. The ruling clarifies the limited scope of Section 44 of the Transfer of Property Act and the procedural nature of the Partition Act provisions in this context. No new precedent beyond the facts was established. Each party will bear their own costs in this Court, with the Defendant entitled to costs of the lower Courts.
1. This appeal on behalf of the Defendant arises out of a suit filed by the Plaintiff-Respondent for permanently restraining the Defendant from taking joint possession of the homestead.
2. The property originally belonged to the members of a family and the relationship amongst the parties will appear from the following genealogical table:—
3. The Defendant Jogendra Nath had purchased the share which originally belonged to Siddheshwar from his widow Narayani and his grandsons Jaladhar and Sasadhar. The case of the Plaintiff Adhar is that Jogendra on the strength of the said conveyance, is making preparation to take joint possession of the homestead which had been in the possession of Narayani. The Plaintiff has accordingly filed the present suit for declaration that the property in dispute forms the undivided family dwelling-house of the Plaintiff and his other co-sharers, including Narayani and the Defendant being a stranger purchaser is not entitled to take joint possession of any portion of the said homestead. It is accordingly prayed that the Defendant being a stranger purchaser may be permanently restrained from taking joint possession on the strength of his purchase of the interest of Narayani. The Plaintiff has impleaded only the transferee Jogendra Nath. The other co-sharers have not been joined as parties. The defence inter alia raised various issues. The Defendant claimed that he was an agnatic relation of the Plaintiff's family, the property in question was not a homestead and at least a portion thereof was neither a part of the homestead nor the necessary adjunct thereto. It was further claimed that the members of the family had been in possession of separate portions after partition and the portion sold was not a part of any joint homestead. The Plaintiff and Narayani were possessing lands separately. It was further contended that the suit as framed is not maintainable and the relief as claimed is not available to the Plaintiff in the present proceedings.
4. Both the Courts below have found in favour of the Plaintiff that the Defendant was not a member of the joint family which originally owned the property, that the property in suit constituted an undivided family dwelling-house and that there had been no previous partition. The Defendant was accordingly permanently restrained from taking joint possession.
5. The principal question raised in this appeal is whether on the facts found the suit as framed is maintainable in law. In the lower Courts reliance had been placed upon the provisions contained in sec. 44 of the Transfer of Property Act and in Sec. 4 of the Partition Act.
6. sec. 44 of the Transfer of Property Act provides that the transferee from a co-sharer acquires the right of his transferor so far as is necessary to give effect to the transfer and no further. In respect of a dwelling-house the second paragraph of sec. 44 provides:—
“Where the transferee of a share of a dwelling-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 house”.
7. The transferee from one of the members of a Hindu co-parcenary may acquire a right to joint possession or to ascertain the share by partitioning the share to which he is entitled. Such a transferee does not acquire the status of a co-parcenary in the family. In the case of a dwelling-house belonging to an undivided family the transferee shall not by the provisions of this section be deemed to be entitled to joint or common enjoyment of the house.
8. The stranger purchaser of an undivided share in a homestead, used as a residence In joint Hindu family, cannot obtain a decree for joint possession. The proper course to follow by a Court in such a case is either to direct delivery of possession by partition in execution proceedings or to leave the purchaser to his remedy by a separate suit for partition [Girijakanta Chakrabarti v. Mohin Ch. Acharyya(1)]. If such a suit for partition is brought by a stranger transferee the parties will be entitled to invoke the provisions contained in the Partition Act IV of 1893.
9. On behalf of the Plaintiff it is contended that as a stranger transferee cannot be placed in joint possession of a homestead through Court it is open to any one of the members of the joint family who has still an interest in the said property to bring a suit for restraining such a stranger transferee from taking possession. It is urged on the other hand on behalf of the Defendant that there is no provision of law under which an outsider transferee cannot obtain amicable possession.
10. Sec. 4 of the Partition Act makes no reference about the rights of a stranger purchaser to obtain or not to obtain amicable joint possession in the homestead. The only provision therein is about the procedure to be followed in a suit for partition by such a stranger-purchaser. The provision of this section, therefore, is of no assistance in deciding the issue in the present appeal.
11. To test the extent and nature of the right given under sec. 44 of the Transfer of Property Act, we may consider a case where the stranger transferee has already got into possession of a portion of joint family homestead. Is it open to any one or more of the members of the joint family who still own some share or other in the same homestead to bring a suit in ejectment of that stranger transferee from that property? There is no provision of law under which a stranger-transferee can be ejected simply on the ground that it was not possible for such a transferee to have obtained joint possession through Court.
12. sec. 44 of the Transfer of Property Act and Sec. 4 of the Partition Act, 1893, are complementary provisions. Sec. 4 of the Partition Act gives under certain conditions the co-sharer member of a joint family the option of buying out the interest of a transferee of an undivided share of a joint homestead at a valuation to be made by the Court.
13. We have, however, to consider the effect of the provisions contained in the second paragraph of sec. 44 of the Transfer of Property Act. A stranger-transferee is not to be deemed under that section to be entitled to joint possession or other common or part enjoyment of the house. It will be apparent that the provisions of this section are of a negative nature. On proof of a sufficient defence the Court will not forcibly put a stranger transferee in joint possession with the members of the joint family. This does not create a positive right in favour of the members of the family.
14. We have next to consider whether on these facts the Plaintiff would be entitled to have an injunction issued by the Court at this stage. The exercise of the jurisdiction to grant relief by the issue of an injunction is not a matter ex debito justitiae but one which is purely within the discretion of the Court. The latter is not bound to grant such relief merely because it is lawful to do so. Injunctions in the case of tort is to be issued as provided in the Specific Relief Act. All that is necessary is to ascertain first whether under the law relating to contract and tort there is an obligation, a breach of which is threatened, secondly, whether the general principles regulating the ground of an injunction relief permit of such remedy under the particular circumstances of the case.
15. Tort has been theoretically defined to be an unauthorised prejudicial interference by an act or omission of right in rem of another person, and the conduct which brings about the prejudicial interference is said to be tortious (Pollock on Torts). Considered more practically from the point of view of English Jurisprudence tort is an act or omission giving rise by virtue of the common law jurisdiction of the Courts to suffer remedy which is not against contract. It is commonly said to be an actionable wrong independent of contract. In Ballison v. Guildford(2), the Master of Rolls speaking of the principles upon which a Court of equity enforces when an injunction is asked for said:—
“I take that, in order to obtain an injunction, a Plaintiff who complains, not that an act of actual violation, but that a threatened or intended act, if carried into effect will be violation of the right, must show that such will be the inevitable result. It will not do to say a violation of the right may be the result; the Plaintiff must show that a violation will be the inevitable result”. He then proceeds to cite a case decided by Lord Tottenham in which the Lord Chancellor said: “I consider this Court has jurisdiction of injunction to protect property from an act threatened which if completed would give a right of action. I by no means say that in every such case an injunction may be demanded as of right; but if the party applying is free from blame and promptly applies for relief and shows that by the threatened wrong the property would be so injured that an action for damages would be no inadequate redress an injunction will be granted”.
16. Applying this principle to the facts of the present case it is not possible to describe the attempted act of the stranger-transferee as being in the nature of a tortious Act. Even if such an act were considered to be a tortious one we have also to consider whether it is open to the Plaintiff to bring a proper action in the Civil Court for determination of the respective rights and for partition.
17. Can the threatened act be deemed to be an act of trespass?
18. The provisions contained in sec. 44 of the Transfer of Property Act disentitle a stranger-transferee from bringing a suit for obtaining joint possession of a homestead. There is on the other hand no provision under which the owner of an undivided share of a joint homestead cannot either let out or sell away to an outsider the portion of the joint property which is in his possession. It has not even been suggested that a co-sharer of the homestead can be restrained when he is about to transfer his interest in the joint family homestead. The law does not provide for the same and the ordinary rights of ownership may be exercised by a co-sharer. A co-sharer cannot restrain another co-sharer from either selling or letting out the latter's share to an outsider. That co-sharer may be acting unreasonably. That may be a sufficient ground for having partition enforced. But this does not entitle a co-sharer from restraining another co-sharer from making over amicable possession to a stranger or the latter obtaining amicable possession of the share which such transferee has purchased.
19. Reference has in this connection been made to certain observations in Rajani Kanta Sen v. Sita Kumari(3).
20. A stranger purchaser had purchased a share of a family dwelling-house and having been unable to obtain possession thereof instituted a suit for joint possession and obtained an ex parte decree. An order was also obtained on behalf of the decree-holder under Or. 21, r. 97, C.P.C At this stage a suit was filed by the other co-sharers of the dwelling-house for a declaration of their title to and for permanently restraining the purchaser from obtaining khas possession by executing the decree. An attempt was made to invoke the principles contained in sec. 44 of the Transfer of Property Act. This Court held that as a decree had already been passed as well as an order had been obtained under Or. 21, r. 97, C.P.C the decree-holder could not be restrained from executing the decree. It is further observed that the Plaintiffs had an opportunity of contesting the claim of the stranger-purchaser before the decree had been passed in the earlier suit. The Plaintiffs must be regarded as being estopped in the latter suit from asking for an injunction which would prevent the Defendant from executing the decree obtained quite properly. On this ground alone the decision of the Court of Appeal below had to be affirmed. There is an observation, however, that “in any case, however, even if it be assumed that the principles of sec. 44 of the Transfer of Property Act might be applied in a suitable case for the purpose of preventing a stranger to the family from obtaining joint possession of a family dwelling-house, the proper step for the members of the joint family to apply for an order of this nature would be at the time when a decree is made in a suit”. There is no decision by the Court as to whether sec. 44 of the Transfer of Property Act will at all be attracted.
21. I hold, therefore, that the suit as framed by the Plaintiff, impleading only the stranger-transferee, for permanently restraining the Defendant from taking possession is a misconceived one and is not maintainable in its present form.
22. This appeal is accordingly allowed and the suit dismissed. In view of the circumstances of this case each party will bear his respective costs in this Court. The Defendant will be entitled to the costs of both the Courts below.
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