DORAB CAWASJI WARDEN Vs. COOMI SORAB WARDEN

JUDGEMENT

(1.) This appeal arises out of notice of motion taken by the plaintiff in Civil Suit No. 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 Vila, 29, Perry Cross Road, Bandra, Bombay, or any part or portion thereof. The appellant is the plaintiff and defendants 1 to 5 are respondents 1 to 5.

(2.) The appellant is the owner of an undivided half share in the suit property. The suit property was purchased originally under a deed dated 12th January, 1934 by Cawasji Dorabji Warden, Banubai Warden and the appellant as joint owners. Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant. it appears that the superstructure on the land was constructed subsequent to the purchase. At the time when the property was purchased the appellant was a minor. By a registered deed of declaration the appellant (sic) made a declaration that the appellant 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 appellant's surviving the declarations, 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. However, this deed reserved a right to either or both the declarants and the appellant from serving the joint tenancy at any time. On the death of Banubai on 9th June, 1945 the appellant and his father as surviving joint tenants came to own the entire property. 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 common, 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. On 16th April, 1952, the appellant's father transferred his undivided half share in the suit property in favour of his another son by name Sohrab, Warden in consideration 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. Thus the appellant and his brother Sohrab came to hold an equal undivided one-half share each, as tenants in common in respect of the said property.

(3.) 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. Respondents 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. On the 18th of April, 1987 praying for a decree directing (restraining) respondents 1, 2 and 3 from parting with possession of the said property or any part thereof and/or inducting any third party including respondent 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 fifth respondent was impleaded on the assumption that he and the fourth respondent jointly purchased the property but it is now accepted that he is not one of the purchasers and the property was purchased by the fourth respondents and his wife. Pending the suit the appellant prayed for an interim injunction restraining the respondents 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.