Whether stranger-transferee is entitled to get injunction to protect his possession over purchased property?

 The second aspect of the matter raised by the learned counsel for the respondents, however, needs careful consideration. It is true that the purchasers of undivided interest of a coparcenery can have no right to retain exclusive possession of a portion of the coparcenery property on the basis of sale in their favour but they can certainly claim a right in equity to insist or compel non-alienating members not to dispossess them without recourse to law. The relief of injunction is essentially an equitable relief which now is also governed by statute such as Specific Relief Act. The relief claimed being essentially an equitable relief, the right in equity existing in a purchaser to protect his possession till filing of a suit for general partition, can be granted to him even in a suit instituted by him of the present nature. In the Ful Bench case (AIR 1973 Madh Pra 222) (supra) the equitable right of protecting possession, pending filing of a suit for general partition, was recognised in a suit brought by the non-alienating members for exclusive or joint possession of the joint property sold to the purchasers; but, in my opinion, the principles of equity, justice and good conscience would permit such a protection being granted even in a purchaser's suit for mandatory injunction. If the purchaser has been placed in possession of a portion of coparcenery property, he can be allowed to be dispossessed only through a process of the Court and not by permitting the alienating members to take law into their own hands by use of physical force.

When the

purchaser of undivided interest of coparcenary property is in

possession of a portion of a joint property he can compel the non

alienating members not to dispossesses him without recourse of

law. Therefore, the grant of equitable relief to protect his

possession till the filing of the suit for joint partition and a suit for

mandatory injunction is permissible

Madhya Pradesh High Court

Maharu And Ors. vs Dhansai And Ors. on 21 February, 1991

Equivalent citations: 1991 (0) MPLJ 464, AIR 1992 MP 220

Bench: D Dharmadhikari

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Whether co-owner is entitled to get injunction to restrain stranger-transferee from entering into possession of house?

In Paresh Nath v. Kamal Krishna, , it was held that upon a transfer of an undivided share of a family dwelling house by a co-sharer the other co-sharer may maintain a suit for injunction restraining the stranger-transferee from exercising any act of joint possession in respect of the share transferred. A co-sharer is entitled to exercise his possession over every portion of his property. In Surendra Nath v. Ram Chandra, (1971) 75 CWN 195, this High Court went so far as to say that a stranger-purchaser is reduced to the position of a trespasser. His purchase vests in him title only and gives him a right to sue for partition and nothing more. Section 44 of the Transfer of Property Act negatives his claim to possession before partition. Section 4 of Partition Act spells out his right to sue for partition. Former is the limit and the latter is extent of what he had acquired by purchase. Supreme Court virtually gave a sanction to the legal proposition propounded in Surendra Nath's case (supra). In Dorab Cawasji v. Coomi Sorab, , the Supreme Court approved the view of a High Court that 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-purchasers 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. The remedy of the stranger-purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession. It has further been observed in paragraphs 25 and 28 that denial of right of injunction under Section 44 of the Transfer of Property Act would cause irreparable injury to the other members of the family.

When a stranger Purchaser

threatens to entered into joint possession with members of the

undivided family temporary injunction should be granted

restraining him from entering into possession even if such an

order amounts to eviction of the stranger purchaser 

Calcutta High Court

Ashim Ranjan Das vs Sm. Bimla Ghosh And Others on 22 February, 1991

Equivalent citations: AIR 1992 Cal 44, (1991) 1 CALLT 422 HC, 1991 (1) CHN 229

Bench: A K Nandi

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