C.K. Banerji, J.
1. In this interlocutory application the appellant is asking, inter alia, for an injunction restraining the respondent No. 1, his servants, agents and assistants from parting with possession of the vacant portion of Lot 'B' of premises No. 203/4C, Bidhan Sarani, Calcutta, to Sm. Monika Ghose or to any other stranger to the family.
2. The short facts relating to the property in dispute may be briefly stated. By an Award dated 12th April, 1949 Mr. Hem Chandra Majumder, Barrister-at-law, divided the original premises No. 203/4, Cornwallis Street (now Bidhan Sarani) into four lots being lots A, B, C and D.Lot A was allotted to Ananda the respondent No. 2, Lot B was allotted to Jahar the respondent No. 1, Lot C was allotted to Manick and Lot D was allotted to Sushila Bala the mother. A decree was passed thereafter in terms of the said Award. The said lots were subsequently separately numbered by the Corporation of Calcutta whereby Lot A was numbered as 203/4B, lot B as 203/4C, lot C as 203/4D and lot D as 203/4A Bidhan Sarani. Lot C allotted to Manick and numbered as 203/4D, Bidhan Sarani was sold in execution of a decree some time in 1960 to Subal Chandra Pan and others strangers to the Paul family who are residing and enjoying the same exclusively,
3. By a Deed of Settlement Sushila Bala gave away lot D being No. 203/4A, Bidhan Sarani to Manik's son Shibnath through the medium of a Trust of which Jahar was appointed the Trustee. Sushila Bala died, on or about 7th Nov., 1977,
4. Shibnath filed a suit in this Court being Suit No. 701, of 1979 against Jahar claiming absolute ownership of 203/4A Bidhan Sarani and also for a decree for a large sum. An application made by Shibnath in the said Suit was decided against Jahar and on an appeal therefrom by Jahar, the appeal was disposed of by an order dated the 5th Dec., 1980 made by the Appeal Court allowing Jahar to sell No. 203/40, Bidhan Sarani being the lot B allotted to him upon his furnishing Bank guarantee for a sum of Rs. 20..000.00 to secure the claim of Shibnath.
5. The suit herein out of which this appeal arises, was filed by Jahar, inter alia, for a declaration that he was the exclusive owner of premises No. 203/4C Bidhan Sarani, injunction restraining Ananda and Shibnath from obstructing enforcement of the said Award by construction of partition walls and for a declaration that he has a right of passage through premises No. 203/4A, Bidhan Sarani,
6. It may be noted that in the said Award a plan was annexed demarcating each lot; but there was no separation of the lots by raising boundary walls and by constructing separate stair cases, privies, etc., except for 203/4D, Bidhan Sarani which was purchased by Subal Chandra Pan and others and separated by metes and bounds by raising boundary walls to make it separate from the rest of the dwelling house,
7. On or about 5th Jan., 1981 Shibnath made an application in the said suit of Jahar out of which this present appeal arises, inter alia, for an injunction restraining Jahar, his servants and agents from parting with possession or vacating premises No. 203/4C, Bidhan Sarani to Sm. Monika Ghose or her servants or agents or to any other stranger who is stranger to the Paul family, it was urged on behalf of Shibnath in the Court below that the said application was made under Section 44 of the Transfer of Property Act, The said application was disposed of by the Court below on the 20th Feb. 1981 by making no order on the said application, The present appeal was filed by Shibnath against the said order.
8. Since then on or about 12th Mar., 1981 Jahar sold the premises No. 203/4C, Bidhan Sarani to Sm. Monika Ghose.
9. Mr. Jayanta Mitra appearing for the appellant Shibnath submitted that the said application in the Court below was made under Section 44 of the T. P. Act, Alternatively, it was in the nature of a quia timet action for an injunction against a threatened injury, namely, sale by Jahar of 203/4C, Bidhan Sarani whereby the purchaser would be entitled to possession of the said premises, Section 44 of the T, P, Act confers a right to other co-sharers to prevent the purchaser from taking possession; the threatened injury being the threat of possession by the intending purchaser upon purchase of the property by her. In any event, even if Section 44 did not apply in terms when the said application was made in Court below as there was no transfer of the property at the time, yet today the admitted position is that there has been a transfer in fact. The Appeal Court will, therefore, take note of the subsequent event and will deal with the matter as if it is a re-hearing of the application in the Court below as on this date and, therefore, grant relief to the appellant under Section 44 of the T. P. Act on equitable considerations and to avoid multiplicity of proceedings. In support of the above Mr. Mitter cited two decisions of the Supreme Court (1) Pasupuleti Venkateswarlu v. Motor & General Traders, reported in : 3SCR958 ; (2) Rameshwar v. Jot Ram reported in : 1SCR847 Mr. Mitter next contended that the different lots, apart from 203/4D which has been made a separate unit and sold to Subal Chandra Pan and others, still constitute a dwelling housebelonging to an undivided family. All the three lots although separately numbered, are in joint and common use and enjoyment of the parties and the parties constitute an undivided family in respect of the said lots. The four points which weighed with the learned Judge of the Court below in making the order appealed from were; (1) existence of tenants, (2) lot C bearing No. 203/4D, Bidhan Sarani sold in execution of a decree to Subal Chandra Pan and others, who were strangers to the family, (3) demarcation in the plan was sufficient to constitute partition by metes and bounds to take the said lots out of the mischief of Section 44 of the T. P. Act and Section 4 of the Partition Act and (4) the application was outside the scope of the suit in which it was made and, as such, not maintainable. Mr. Mitter submitted that the suit was to enforce the partition directed by the said Award. So it could not be said that an application under Section 44 of the T P. Act could not be made in such suit. The consideration for the Court was if a co-sharer could prevent a stranger purchaser from taking possession as contemplated by the said section. Mr. Mitter cited several decisions of this Court and other High Courts to show the meaning of the expression 'share of a dwelling house belonging to an undivided family' in Section 44 of the T. P. Act and to establish that it did not affect the position if there were tenants or even if a separated portion of the property had been sold to a stranger and that such an application could be made even after the final decree in a partition suit inasmuch as there was no actual physical partition and separation of the divided portions of the property. The cases cited by Mr. Mitter were Botokrishna Ghose v. Akhoy Kumar Ghose : AIR1950Cal111 ; Dulal Chandra Chatterjee v. Gostha Behari Mitra : AIR1953Cal259 ; Satyendu Kundu v. Amar Nath : AIR1964Cal52 : Satya Narayan Chakravarty v. Biswanath Paul. ((1970) 74 Cal WN 871), Harendra Nath Mukherjee v. Shyam Sunder Kuer, : AIR1973Pat142 .
10. Mr. Swapan Mallik appearing for Ananda the respondent No. 2, submitted that there has been no actual physical partition and separation of lots A, B and D which are still in joint possession and enjoyment of the parties as one property. The Thakur Ghar and the bathroom are in common use and enjoyment of the parties, There is only one staircase which isused by all the parties and the parties have to go through the other lots to reach their individual lots,
11. Mr. P. C. Sen appearing for Jaharthe respondent No. 1 urged that the application by the appellant in the Court below was barred by res judicata by reason of the order dated 14th Jan., 1981 passed by the Appellate Court constituted by A. N. Sen, C. J. (as he then was) and M. M. Dutt J, granting leave to Jahar to sell premises No. 203/4C, Bidhan Sarani upon furnishing Bank guarantee for the sum of Rs. 20.000.00. The respondent No. 1 in view of such leave granted could not now be restrained by an injunction from making over possession to the purchaser.
12. He next urged that Section 44 of the T. P. Act recognises the right of a co-sharer to transfer a share of the property. There is no legal bar on such transfer. The respondent No. 1 having lawfully transferred his lot to Sm. Monika Ghose cannot be restrained from making over possession to her which he is bound to do under the law and also under the Conveyance. Under Section 44 of the T. P. Act the remedy of the appellant, if any, is against the transferee and not against the transferor. The transferee is not a party to the proceeding and no order can be made against her. By seeking an order of injunction against the respondent No. 1 the appellant is trying to get indirectly what he could not get directly. Mr. Sen next urged that the application in the Court below was made at a time when there was no transfer by Jabar of his lot either to Monika Ghose or to any other person. Section 44 of the T. P. Act would be attracted only when there has been a transfer. Thus the said application in the Court below was misconceived and was not maintainable under the said section. There is no scope for applying the principles of quta timet action for an injunction against a threatened injury on equitable grounds, sale by respondent no. 1 to Monika Ghose was not an injury threatened or otherwise. If sale cannot be prevented, what the purchaser may do or may not do after purchase cannot be a matter of injunction against the respondent No. 1 the vendor. In any event the purchaser not being before the Court any order of injunction against the respondent No. 1 will be meaningless and will neither affect nor bind the purchaser. She would be entitled totake possession on her own rights as the purchaser.
13. Mr. Sen urged that, the decisions cited by Mr. Mitter have no application to this case. All those cases are after the purchaser has come into the picture or either has taken proceedings or has been made a party to the proceedings. None of them relates to an intending purchaser.
14. There is no dispute that there is no bar in a co-sharer transferring his share in a property belonging to an undivided family. Section 44 of the T. P. Act itself proceeds on such basis and recognises such right of transfer by a co-sharer.
15. Jahar was lawfully entitled totransfer his share in the property and he has, therefore, done so. The order of A. N. Sen, C. J. (as he then was) and M. M. Dutt J. secured the claim of Shibnath against Jahar directing him to furnish security. Prima facie, it does not appear that the said order could be said to operate as res judicata.
16. It is true that Section 44 of the T. P. Act did not apply in terms when the said application was made by Shibnath in the Court below as there was no transfer at the time by Jahar to Monika Ghose. The substantial question which would arise in the appeal is whether this Court would take note of the subsequent event, that is, transfer by Jahar to Monika Ghose and grant the relief accordingly. The further substantial question would be whether there has been such partition and separation of the joint property by the said Award and demarcation of the lots in the plan annexed thereto so as to take the said property out of the mischief of Section 44 of the T. P. Act and the said property has ceased to be a property belonging to an undivided family.
17. Section 44 of the T. P. Act has two limbs. Under the first limb the purchaser by the purchase acquires, inter alia, the right to joint possession of the property along with the other co-sharers. Under the second limb the section does not entitle him to joint possession. Acquisition of a right to joint possession and (giving effect to such right are distinct questions. A purchaser is entitled to possession of the property purchased from his vendor according to the nature of such property. If it is in the possession of tenants by letters of attornment and if it is in the possession of the vendor by actual physical possession. The second limb provides 'nothing in this section shall be deemed to entitlehim (transferee) to joint possession or other common or part enjoyment of the house'. Apart from the tenanted portion of premises No. 203/4C. Eidhan Sarani the rest of the said premises is in the possession of Jahar and the purchaser Monika Ghose is, therefore, entitled thereto from Jahar and thus she would get joint possession or common or part enjoyment thereof. In that view of the matter prima facie it appears, that the contention of Mr. Jayanta Mitter that an injunction against Jahar would be sufficient is not wholly without any substance. There are arguable points to be decided in the appeal.
18. In that view of the matter there will be an order restraining the plaintiff respondent No. 1, his servants and agents from parting with possession of the vacant portion of premises No. 203/4C, Eidhan Sarani, Calcutta, to Smt. Monika Ghose until the disposal of the appeal.
19. The appeal is expedited in the manner following: The notice of appeal is waived. Settlement of index is dispensed with. AH papers used in the Court below as well as the order appealed from and the order admitting the appeal be included in the Paper Book which is to be filed within six weeks from date. Appeal to appear at the top of the appropriate Warning List eight weeks hence. The Department to issue the certified copies of the aforesaid Orders forthwith on a signed copy of the minutes. Costs cost in the appeal.
Ramendra Mohan Datta, J.