General Principles of the Transfer of Property Act, 1882
Injunction Against Alienation and Creation of Third-Party Interest
1. Meaning
Alienation: Any transfer of property rights by sale, gift, lease, mortgage, etc.
Third-party interest: Creation of rights in favour of a stranger (e.g., mortgage, lease, development agreement) that may prejudice the plaintiff.
A civil court can grant an injunction to restrain such acts, under Order 39 Rules 1 & 2 CPC and Specific Relief Act, 1963 (Sections 36–42).
Aim: To maintain status quo and ensure the final decree is not defeated.
2. Legal Basis
Order 39 CPC: Temporary injunction can be granted where property is in danger of being alienated or third-party rights created.
Specific Relief Act: Preventive relief by injunction to protect rights in property.
Section 52, Transfer of Property Act (Lis Pendens): Even without injunction, transfers during litigation are subject to the result of the suit; but injunction strengthens the protection.
3. Conditions for Grant
Courts rely on the classic three-fold test:
Prima facie case – Plaintiff must show a genuine right or interest.
Balance of convenience – Hardship to plaintiff if injunction is denied should outweigh hardship to defendant.
Irreparable injury – Monetary compensation would not be adequate if alienation occurs.
⚖️ Dalpat Kumar v. Prahlad Singh (1992 SC): These three principles are mandatory before injunction is granted.
4. Injunction Against Alienation
Prevents defendant from selling, gifting, mortgaging, or otherwise transferring ownership of the property.
Example: “Defendant restrained from selling the suit land till disposal of the case.”
Rationale: If property is transferred, the decree in favour of plaintiff may become infructuous.
⚖️ M. Gurudas v. Rasaranjan (2006 SC): Court upheld injunction against alienation to prevent the defendant from frustrating the plaintiff’s claim.
5. Injunction Against Creation of Third-Party Interest
Prevents defendant from creating encumbrances such as leases, licences, charges, or agreements with outsiders.
Ensures that new contractual rights are not created to complicate litigation.
⚖️ Kamal Kumar v. Premlata Joshi (2019 SC): In specific performance suits, court can restrain defendants from creating third-party rights, as it would change the nature of the property and render the decree meaningless.
6. Effect of Injunction
Binding Force – Defendant cannot transfer or encumber property.
Violation – Transfer despite injunction is not void, but is subject to contempt of court and transferee takes subject to the decree.
Lis Pendens – Even without injunction, transfers pendente lite are bound by outcome of the case (Sec. 52 TPA).
⚖️ Shiv Kumar Chadha v. MCD (1993 SC): Injunction is discretionary, but should be exercised when non-interference would cause irreversible damage.
7. When Court May Refuse
No prima facie right in plaintiff.
Injunction would cause disproportionate hardship to defendant.
Plaintiff approaches with mala fide intent.
Claim barred by limitation.
8. Distinction
| Injunction Against Alienation | Injunction Against Third-Party Interest |
|---|---|
| Restrains transfer of ownership or title | Restrains encumbrances like lease, licence, charge |
| Example: Sale, gift, mortgage | Example: Lease to builder, development agreement |
| Focus: Ownership | Focus: Encumbrances/contractual rights |
9. Key Takeaways
Injunctions preserve the status quo and protect property from being alienated or encumbered during litigation.
Courts apply prima facie case, balance of convenience, and irreparable injury tests.
Case law: Dalpat Kumar (1992), M. Gurudas (2006), Kamal Kumar (2019), Shiv Kumar Chadha (1993).
Doctrine of Lis Pendens (Sec. 52 TPA) complements injunctions but injunctions give stronger protection.
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