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Madhya Pradesh High Court · body

2003 DIGILAW 1313 (MP)

Devendra Singh Thakur v. Shantibai.

2003-12-03

S.P.KHARE

body2003
Judgment ( 1. ) THIS is an appeal by the defendant No, 2 under Order 43 Rule 1 (r), CPC against the order by which an interim mandatory injunction has been issued against him to remove his belongings from the house in dispute and he has been restrained from interfering with the possession of the plaintiff No. 5 on this house. ( 2. ) BADRI, Onkar and Ramkishan were three brothers. Mathurabai was owner of a house on plot No. 3538 in Damoh. She bequeathed one third portion of this house to plaintiff No. 5 Rambharose and defendant No. 1 Narendra Kumar who are real brothers. They are sons of Onkar. Defendant No. 1 Narendra Kumar sold his share in the house by registered sale-deed dated 21-1-2003 to defendant No. 2 Devendra Singh Thakur who is a stranger to the family. ( 3. ) THE Trial Court recorded the prima facie findings that there was no partition between plaintiff No. 5 Rambharose and his brother defendant No. 1 Narendra Kumar in respect of the portion which was bequeathed to them by Mathurabai and therefore, the sale-deed executed by the defendant No. 1 in favour of the defendant No. 2 does not convey to him any specific portion of the house. It has also been found that the house in dispute is a dwelling house. Following the decision of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 , the impugned order of interim mandatory injunction and the prohibitory injunction has been passed. ( 4. ) AFTER hearing the learned Counsel for both the sides this Court is of the opinion that there is no legal infirmity in the impugned order. The portion of the house which came to the plaintiff No. 5 and the defendant No. 1 as a result of bequest was a dwelling house and as there had been no partition it was the house belonging to the undivided family of these two brothers. One brother could not alienate any specific portion of the house in dispute without partition. Section 44 of the Transfer of Property Act becomes applicable. The defendant No. 2 is also not a member of the family and therefore, he is not entitled to joint possession or other common or part enjoyment of the house. One brother could not alienate any specific portion of the house in dispute without partition. Section 44 of the Transfer of Property Act becomes applicable. The defendant No. 2 is also not a member of the family and therefore, he is not entitled to joint possession or other common or part enjoyment of the house. That is specifically provided in Para 2 of Section 44 of the Transfer of Property Act. It is not material for the applicability of second part of Section 44 of the Transfer of Property Act that the members of the family are joint tenants or tenants in common. This has been laid down by the Supreme Court in the case referred above. In such a case withholding of mandatory interlocutory injunction would carry a "greater risk of injustice" to the plaintiff No. 5. If he shows a strong prima facie case he is entitled to interim mandatory injunction. The object of second part of Section 44 of the Transfer of Property Act is to "prevent the intrusion of the strangers into family residence". ( 5. ) IN the present case, the plaintiff No. 5 and the defendant No. 1 are real brothers and they were holding the portion of the house bequeathed to them by Mathurabai jointly and as such the defendant No. 2 can not be permitted to intrude into the family house without partition. The order passed by the Trial Court is in conformity with the law laid down by the Supreme Court.