MADHAVI SHARMA AHLUWALIA Vs. STATE

JUDGEMENT

(1.) BY this application, the applicant has made a prayer that the applicant be allowed to use room no. R1 and R2 and the garage in the basement of flat no. 34 Usha Kiran, Car Micheale Road, Mumbai which consists of four bedrooms, drawing-cum-dining and kitchen with servant quarters.

(2.) THE applicant is petitioner in the above probate case. It is submitted that in case the Will is probated, the entire properties left by Shri ram Chandra Sharma will come to the applicant being the sole legatee. If the will cannot be probated for whatsoever reasons and it is held that late Shri Ram chander Sharma died intestate, as per intestate succession, the applicant being the only legal heir apart from the objector would be entitled to 50% share in all his properties. It is argued that under any eventuality, the applicant would be entitled to 50% share of the estate left by Shri Ram Chander Sharma. The above flat was one of the properties, left behind by Shri Ram Chander Sharma and in this property, the applicant and her family was residing only in one room shown as R5 in the site plan and were using common portion of drawing-cum-dining at the center of flat, after the same was partitioned by the objector, creating room R-4. The applicant was having a family of three children aged 15 years, 14 years and 12 years and husband. All the children were school going, while the objector was all alone and had no family except the applicant and her family members. She (objector) had occupied three large bed-rooms shown as R1, R2 and r3 in the site plan. She was using R3 and R4 and kept rooms no. R1 and R2 under her lock and key. She had illegally kept a paying guest, who left 3-4 years ago and this fact reveals that she does not require rooms no. R1 and R2 but kept it locked only to deprive the applicant of her lawful right. It is submitted that since the applicant and her entire family was living only in one bed-room and a part of drawing-cum-dining, they were facing great hardship. If the Will is probated, the applicant would be entitled to entire property of his father but in any case, the Will is not probated, she is entitled to half of the property. She submitted that during pendency of the petition, the objector should be asked to remove her lock from rooms R1 and R2 and she (petitioner) should be permitted to occupy room R1 and R2 which would give her some respite from the congested manner, which she and her family were living in and this would not prejudice the rights of objector, because the objector's right cannot be more than 50% of the property, even if the probate petition fails. It is submitted that in similar circumstances, this Court had partly allowed an application being IA No. 5932/08 of the applicant wherein she had asked for release of 50% share of the sale proceeds of one of the properties and this Court while partly allowing the application directed for release of ad hoc amount of Rs. 10 lac out of the sale proceeds lying in the Court.

(3.) VIDE an order dated 14. 5. 2008 this Court while passing interim order in application of the applicant in IA No. 5932/08 had observed as under: considering the arguments advanced by the counsel for the parties, I am prima facie of the view that in either eventuality the petitioner is entitled to 50% of the estate left by late Shri Ram Chandra Sharma. However, as the respondent wants to file a reply and give her reasons for opposing this application for release of 50% of the said amount, the matter be listed for arguments on 24. 09. 2008. In the meanwhile, an ad hoc amount of Rs. 10 lac, which is far less than the 50% share of the petitioner, be released to the petitioner out of the said fixed deposit. The said amount be released within one week. The balance amount shall continue to remain in a fixed deposit.