SHAKUNTALA DEVI Vs. MANOJ KUMAR

JUDGEMENT

(1.) Plaintiff is the widow of late O.P. Gupta who owns the suit property. It is her case that O.P. Gupta died issueless on 28.2.1985 and on his death she being the only heir has inherited the entire property and is the absolute owner of the same. Out of her wedlock with O.P. Gupta, no children were born. There was nobody else to stay with her. She, accordingly allowed seven of her nephews to reside with her in the suit property. Defendants 1 & 2 are her nephews, out of seven who are also residing in the property. It is also alleged that Defendants No. 1 has set up a Will, alleged to have been executed by late O.P. Gupta on 30.9.1981 and under if it is claimed by defendant No. 1 that the plaintiff has only life interest in the property and has also claimed that half of the front portion of the house has been bequeathed to him and the rear half has been bequeathed to defendants 2 & 3. Defendant No. 1 has started troubling her and harassing her. Defendant No.1 has no right to occupy the suit property and since the plaintiff is residing in the suit property there is every possibility of defendant No.l causing physical harm to the plaintiff. In this background, the plaintiff in the suit has claimed a decree declaring her to be the sole owner of the property and consequential relief for mandatory injunction against defendant No.1 for removal of the household goods from the front portion of the property and restraining defendant No. 2 from claiming himself to be the owner of the half portion of the property. In addition she has also claimed a decree for damages. Along with the suit, an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure has also been filed wherein temporary injunction has been claimed restraining Defendant No.l from entering upon or residing in any part of the property.

(2.) The suit is contested by defendant No.1, who has alleged that the deceased O.P. Gupta executed a Will dated 30.9.1981 bequeathing his property and under the Will the plaintiff has only a right of use and occupation and of raising loan upto the extent ofRs.10,000.00 on the security of the property. Defendant No.1 has in detail narrated the manner in which bequest has been made as regards the property by the deceased. I have heard the learned Counsel for the parties and gone through the record.

(3.) In so far as application under Order 39 Rules 1 & 2 of the Code is concerned I do not find any prima facie case worth the name having been made out for the grant of temporary injunction restraining defendant No.1 from entering upon or residing in the suit property.