KAUSHALYA SAWHNEY Vs. SHAKUNTLA SAHNI

JUDGEMENT

(1.) This appeal by the defendant Shrimati Kaushalya Sahwney is directed against the order of learned Sub-Judge Ist Class, Ludhiana, dated October 28, 1972 whereby application made by her under Order XXXIX, rule 4 of the Code of Civil Procedure, was dismissed and the ex parte ad-interim order passed in favour of the plaintiff Shrimati Shakuntla Sawhney was confirmed. The plaintiff filed the suit for declaration that she is the joint owner in possession of one-half of the movable properties entered in Schedules A and B attached with the plaint. The material allegations made in the plaint were that Amar Dass, father of the plaintiff and the defendant No. 1, was the owner of the suit properties which devolved on his death on December 19, 1953, on his widow Shrimati Parbati, that Shrimati Parbati died intestate on January 17, 1971, and on her death the property had devolved on the plaintiff and defendant No. 1 in equal shares under the provision of clause (a) of sub-section (1) of Section 15 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). The plaintiff claimed herself to be in possession of half of the landed property and, she, therefore, made an application under order XXXIX, rules 1 and 2 of the Code of Civil Procedure for an ad-interim injunction restraining the defendants from interfering with her possession and from alienating the said properties.

(2.) The trial Court, vide order dated May 8, 1972, granted an ex parte ad interim order requiring the defendant to maintain status quo respecting the suit properties and not to alienate the same during the pendency of the suit. On appearance, the appellant opposed the application filed by the plaintiff and also made an application under Order XXXIX, rule 4 of the Code of Civil Procedure for vacation of the said ex parte order. In her application, she claimed herself to be the only child of Shrimati Parbati and alleged that the plaintiff was the daughter of Shrimati Saraswati, the alleged predeceased wife of Amar Dass. On this basis, she claimed herself to be the sole heir of Shrimati Parbati and contended that the plaintiff had no right of succession to the properties left by the latter who was their sole owner at the time of her death.

(3.) The trial Court, before framing the issues, recorded the statement of the parties. On behalf of the plaintiff, her counsel admitted that she was the daughter of Amar Dass from his predeceased wife Saraswati. The only question, therefore, that remains to be determined on these facts is as to whether the plaintiff has a prima facie case of inheritance alongwith the appellant to the estate of deceased Shrimati Parbati.