WINIFRED NORA THEOPHILUS Vs. LILA DEANE

JUDGEMENT

(1.) Both these applications can be disposed of by this common order inasmuch as IA.8120/ 98 is filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 CIVIL PROCEDURE CODE for an ex-parte ad-interim injunction and IA. 9965/98 is filed by the defendant Nos.1,3,4 and 5 under Order XXXIX Rule 4 CIVIL PROCEDURE CODE for vacating ex-parte injunction order dated 17/9/98 passed in IA.8120/98. Briefly stated that the suit is filed by the plaintiff for partition and injunction. It is mentioned in the plaint that parties are Indian Christians as defined in Section 2(d) of the Indian Succession Act, 1925. The pedigree table of the family of the parties is shown in para- 1 of the plaint.

(2.) The dispute is about the inheritance of the property of Ms. Pricilla Violet Mukha who according to the plaintiff was a spinster and died on 26/11/1995 by intestate i.e. without executing any will. The plaint avers that as per the provision of Section 47 of the Indian Succession Act,1925, the property is to be divided in the following manner:

(3.) Some portion of the property in question, namely,18, Sampan Bazaar, Ganger, Boggle, New Delhi is in possession of the plaintiff and other different portions are in possession of defendants 1 to 5. The plaintiff claims to be in actual physical possession, use and occupation of three rooms, kitchen, bath room and terrace on the first floor of the said property as a co-sharer/joint owner which has been shown in yellow colour denoted by words E F G H I J K L in the plan filed by the plaintiff along with the plaint. In this portion previously the husband of the plaintiff was residing as tenant of Ms.Pricilla Violet Mukha at a monthly rent of RPS.350.00 and after his death the plaintiff became the tenant under Ms.Pricilla Violet Mukha now deceased. IA.8120/98 was filed along with the plaint for ad-interim injunction from restraining the defendants from alienating, transferring, disposing of or creating any charge in the said suit property. On 17/9/1998 while issuing summons in the suit, ex-parte order was passed to the effect that no third party interest shall be created by the defendants on any specific portion of the property in dispute and possession shall not be handed over to any third person in respect of any specific portion of the property. The stand of defendants 1,3,4 and 5 in IA.9965/98 filed under Order XXXIX Rule 4 CIVIL PROCEDURE CODE is that the deceased had left behind a will executed by her on 24/5/1993 in respect of suit property. This will was duly registered with the Sub-Registrar as No.2587 in Additional Book No.Ill, Volume 732 at Pages 150 to 152 and registered on 24/5/1993. According to the said will she had bequeathed the said property in the following manner: