SMT. KANCHAN DEVI, WIFE OF SHRI BHAGWAN SAHAI SHARMA Vs. PANDIT SHRI PREM VALLABH SHARMA ALIAS MANOHAR, ADOPTED SON OF SHRI RADHA VALLABH SHARMA,

JUDGEMENT

(1.) Instant first appeal under Section 96 CPC is directed against the judgment and decree dated 02.11.1998 whereby the suit for partition and injunction filed by the plaintiff-appellant was dismissed upon a preliminary issue which was framed as issue No.3 in a suit which reads as under:-

(2.) Learned Trial Court after holding that such issue needs to be decided as a preliminary issue, having heard the parties held that since the plaintiff was daughter of the defendant No.1, was not a coparcener in the suit property and thus not entitled to bring the suit for partition. The Trial Court further opined that for the sake of arguments even, if it is presumed that the suit property was personal property of defendant No.1 plaintiff's daughter, even then the plaintiff had no right in the suit property during the life time of the defendant No.1. Thus, the Trial Court holding that the suit was premature at this stage, dismissed the suit.

(3.) Learned counsel for the appellant contended that the impugned judgment and decree is bad in law deserves to be reversed and set aside for the reason that though number of issues were raised but the Trial Court took up only issue No.3 and held that the appellant had no right in the property of a father. Counsel contends that the father of the appellant though alive, the suit was filed but he expired lateron and plaintiff being his daughter was entitled to inherit the same.