Thus the appellant and his brother Sohrab came to hold an equal undivided one half share each, as tenants in companymon in respect of the said property.
After the death of the said Sohrab, respondents 1 to 3 companytinued 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 companyveyed absolutely to the fourth respondent and his wife.
The trial companyrt found that the suit property is dwelling house belonging to an undivided family, that there was numberpartition 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 number divided qua the suit property, that so far as the suit property is companycerned 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 number enti tled to joint possession of the said family dwelling house.
The further companytention was that it is number 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 companyvenience is number in favour of the appellant.
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 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.
1n the circumstances though the property was held as tenants in companymon, there had already been a partition as to the user of the property.
In the companynter affidavit filed by the fourth respondent and the first respondent on behalf of herself and two minor sons it was companytended 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 number as members of joint family and that the suit property is number joint family property or property belonging to an undivided family.
From the Judgment and Order dated 3.9.1988 of the Bombay High Court in Appeal from Order No.
After the death of Sohrab respondents 1 to 3 companytinue to be in occupation of that portion which was in the occupation of Sohrab.
They were also having separate mess, separate electricity and water meters and that they were paying proportionate taxes.
Soli J. Sorabjee, R.F. Nariman, Raian Karanjawala, Ms. Meenakshi Arora, Ms. Nandini Gore and Ms. Manik Karanjawala for the Appellant.
Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant.
On this ground the appellant plaintiff claimed that he is entitled to perpetual injunction as prayed for in the suit.
The trial companyrt gave an interim mandatory injunction directing the fourth respondent number to companytinue in posses sion.
Anil Diwan, Harish N. Salve, Ms. Indu Malhotra, Mrs. Ayesha Karim, I.R. Joshi, M. Gandhi and H.J. Javeri for the Respondents.
The appellant is the owner of an undivided half share in the suit property.
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 number granted irreparable loss and great prejudice will be caused to him which cannot be companypensated in terms of money, and that the equity and balance of companyvenience is in his favour and numberprejudice or loss would be caused to the respondents.
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 companymon, 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.
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.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The fifth respondent was impleaded on the assumption that he and the fourth respondent jointly purchased the property but it is number accepted that he is number one of the purchasers and the property was purchased by the fourth respondent and his wife.
The Judgment of the Court was delivered by RAMASAMI, J. This appeal arises out of numberice of motion taken by the plaintiff in Civil Suit No.
It appears that the super structure on the land was companystructed subsequent to the purchase.
At the time when the property was purchased the appellant was a minor.
The appellant is the plaintiff and defend ants 1 to 5 are respondents 1 to 5.
The fourth respondent had taken possession of that portion of the property which was in occupation of respondents 1 to 3 in pursuance of the sale deed.
In the circumstances the fourth defendant who is a stranger to the family has numberright to have joint possession or companymon enjoyment of the property along with the plaintiff on the basis of the purchase of the undivided share.
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.
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 remaining in possession or enjoyment of the suit property or part thereof.
707 of 1987.
On the death of Banubai on 9th June, 1946 the appellant and his father as surviving joint tenants came to own the entire property.
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 companypound, staircase and the terrace were in joint possession.
However, this deed reserved a right to either or both the declarants and the appellant from severing the joint tenancy at any time.
2422 of 1989.
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 appellants 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.
On 16th April, 1952 the appellants 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.
The suit was filed on the ground that the suit property is a dwelling house belonging to an undivided family, that there had number been any division of the said property at any time, that the plaintiff and his deceased brother Sohrab during his fife time were for companyvenience occupying differ ent portions, the plaintiff occupying the first floor while the deceased Sohrab was occupying the ground floor.
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.
