Case Note & Summary
The dispute arose between Smt. Vasanti Rama Shetty (the respondent/original plaintiff), a 76-year-old widow, and her son Shri Premnath Rama Shetty along with his wife and daughter (the appellants/original defendants). The suit property is a flat located at Baria House, also known as Sakina Manzil, 184, Modi Street, Mumbai. The plaintiff claimed that she is the owner and occupier of the suit property, having purchased it from her own funds, and that the defendants, who are her son and his family, were residing with her but later started ill-treating her and threatened to dispossess her and alienate the property. The plaintiff filed a suit for permanent injunction restraining the defendants from alienating, transferring, or creating third-party rights in the suit property and from dispossessing her. The trial court granted an ad-interim injunction in favor of the plaintiff. The defendants appealed against that order. The High Court considered the maintainability of the suit without a prayer for partition and the merits of the injunction. The court held that a suit for injunction without seeking partition is maintainable when the plaintiff is a co-owner in possession and the defendant threatens to dispossess or alienate the property. The court found that the plaintiff had made out a prima facie case, balance of convenience was in her favor, and irreparable loss would be caused if the injunction was not granted. The court also noted that the plaintiff, being a mother and a co-owner, has a right to reside in the property and cannot be dispossessed by her son. The appeal was dismissed, and the interim injunction was confirmed.
Headnote
A) Civil Procedure - Injunction - Co-owner's Suit - Maintainability - A suit for injunction without seeking partition is maintainable when the plaintiff is a co-owner in possession and the defendant threatens to dispossess or alienate the property - The court held that a co-owner in possession can seek injunction to protect his possession and right of residence against another co-owner who is not in possession (Paras 6-8). B) Property Law - Right of Residence - Mother's Right - A mother who is a co-owner and in possession of the suit property is entitled to protect her right of residence and prevent dispossession by her son and his family - The court held that the mother's right to reside in the property cannot be defeated by the son who is also a co-owner (Paras 9-10). C) Civil Procedure - Injunction - Order 39 Rules 1 and 2 CPC - Prima Facie Case - The trial court's order granting ad-interim injunction was justified as the plaintiff had a prima facie case, balance of convenience in her favor, and irreparable loss would be caused if injunction was not granted (Paras 11-12).
Issue of Consideration
Whether a suit for injunction without seeking partition is maintainable when the plaintiff is a co-owner in possession of the suit property, and whether the trial court's order granting ad-interim injunction against the defendants from alienating or creating third-party rights in the suit property was justified.
Final Decision
The appeal was dismissed. The order of the trial court granting ad-interim injunction was confirmed. The court held that the suit for injunction without seeking partition is maintainable and that the plaintiff had made out a prima facie case for grant of injunction.
Law Points
- Co-owner's right to injunction against another co-owner
- Right of residence of a mother
- Maintainability of suit for injunction without seeking partition
- Order 39 Rules 1 and 2 CPC
- Section 6 of the Transfer of Property Act
- 1882
