KAMLA Vs. ROSHAN LAL AND ORS.

JUDGEMENT

(1.) THE revision petition is against the order of the appellate Court passed pending suit modifying the order passed by the trial Court issuing interim injunction sought at the instance of the plaintiff. The plaintiff's contention was that his father Ghisa Ram had died in the year 1993 and before his death, he was alleged to have suffered a decree in favour of his grandsons, admitting the right claimed by the grandsons. The daughter has filed a suit in the year 2012, contending that the father's decree will not bind her and has sought for a declaration that she has a 1/4th share in the property and for injunction restraining the respondents from sale of the property.

(2.) IN order that a person obtains an interim order, the test shall invariably be that the plaintiff has a prima facie case and if the injunction is not granted, very serious prejudice would be caused. This is a case of a daughter making a claim at 65 years to the share alleged to have left behind by the father and over which, she has a right which is sought to be taken away. The trial Court granted the relief of injunction and the appellate Court set it aside but directed that any alienation and construction by the defendants shall be done after taking permission from the court. It is this order which is put in challenge by the plaintiff before this court.

(3.) THE provisions of the Hindu Succession Act at the time of death of the father will make possible certain claims to a female heir under Section 6 Explanations -1 and 2 of the Hindu Succession Act. In fact, the Supreme Court's decision makes a reference to the said provision but was applying it to a widow governed by the Bombay school of Hindu Law. In Punjab, the right to a daughter would not be a share equal to that of father and son at a notional partition by deeming a partition to have taken place which was before the death of the father. If a partition were to have taken place, the sons would be entitled to each a share equal to that of the father which would mean the father had a 1/4th share. If the father was suffering a decree to his grandsons even if it may not operate to the whole extent of the property, it is certainly arguable that the decree will operate in respect of whatever share he had so that it could not be taken at least prima facie that he was leaving any property for intestate succession to take place and to make possible to a daughter to claim a share in the property. This, I take only as prima facie point of view so that the trial Court shall not treat it as concluded but will still allow for the plaintiff to make all the serious points to canvass for a legal position which she fancies she had. The daughter will get nothing, if her own father had parted with the right but the question of whether the father could not part with that right, the manner he did, is certainly a matter that will govern suitable consideration at the relevant time during trial. I have stated this only to show that the daughter has no prima facie interest in the suit to make a claim. Any interim order must be considered in a situation where the plaintiff has a strong prima facie case. The plaintiff has none.