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2012 Supreme(Gau) 776
IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
Sri Hemanta Das, and Ors. - Appellants
Vs.
Sri Kiran Hazarika, Son of late Sashi Bhusan Hazarika, Bharalumukh, Guwahati-9 and Ors. - Respondent
RSA No. 2/2001
Decided On: 25.06.2012
For Appellant/Petitioner/Plaintiff:Ms. T. Goswami, Advocate
For Respondents/Defendant:Mr. P.K. Kalita, Mr. G.B. Das and Mr. M. Kataki, Advocates
Headnote:
Hindu Succession Act, 1956 – Section 14 - Limitation Act - Article 65, Article 110 - Setting aside - Title Suit - Suit was contested by the defendant Nos. 1 and 2 by filing a joint written statement. A written statement was also filed by the defendant Nos. 3, 4 and 5 supporting the claim of the plaintiff. The defendant No. 6 however, did not contest the suit - Defendant Nos. 1 and 2 in the written statement has taken the stand that died prior to the Hindu Succession Act, 1956 came into force neither Hareswari, one of the wives nor Bijuli original plaintiff would inherit any property left. It has also been pleaded that Bijuli having been married and being not in possession of any land, she is not entitled to the benefit of Section 14 of the 1956 Act. It has, however, been admitted that the original plaintiff had a limited ownership over the land without any right to claim partition and inheritance – Held, one of the conditions which is to be satisfied by a female Hindu to get the full ownership, under Section 14(1) of the 1956 Act, is that the female Hindu must be in possession of the property on the date of commencement of the 1956 Act. None of the courts below have discussed anything in that regard, though according to the defendants, Bijuli, the original plaintiff was married in the year 1954 i.e. two years prior to commencement of the 1956 Act and was all along with her husband thereafter, and according to the plaintiff she was married after the commencement of the 1956 Act - While setting aside the judgment and decree passed by the first appellate court the case is remitted to the first appellate court, namely; the court of the learned Civil Judge for deciding the appeal afresh on the basis of the evidences already available on record, which shall be done within a period of two months from the date of appearance of the parties as fixed by this Court - Registry is directed to send down the records to the first appellate court forthwith so that the records reach the said court on or before - Appeal is accordingly allowed is indicated above no cost - Appeal allowed.
Hon'ble Mr. Justice B.P. Katakey
1. This appeal by the heirs of the original plaintiff is directed against the judgment and decree dated 18.8.2000 passed by the learned Civil Judge, (Senior Division) No. 1, Kamrup at Guwahati in Title Appeal No. 47/1996 allowing the appeal preferred by the defendant Nos. 1 and 2 and by setting aside the judgment and decree dated 6.9.1996 passed by the learned Munsiff No. 3, Kamrup at Guwahati in Title Suit No. 77/1988 whereby and wherunder the plaintiff's suit was decreed. The predecessor-in-interest of the present appellants instituted Title Suit No. 181/1985 in the Court of the learned Munsiff, Guwahati, which in due course of time was transferred to the court of the learned Munsiff No. 3, and was renumbered as Title Suit No. 77/1988. The pleaded case of the plaintiff in the plaint is that her father Sachi Bhusan Hazarika died in the year 1949 leaving behind two wives namely; Golmai and Hareswari. While the defendant Nos. 1 and 2 are the sons of Sachi Bhusan Hazarika through the first wife Golmai, the original plaintiff and the defendant Nos. 3, 4 and 5 are the sons and daughters of Sachi Bhusan Hazarika through the second wife Hareswari. During pendency of the suit the original plaintiff Bijuli expired and hence the present appellants were substituted in place of the original plaintiff. According to the plaintiff, Sachi Bhusan Hazarika was the owner of 3 kathas 7 lechas of land out of which the defendant Nos. 1, 2, 3 and 4 sold 1 katha 5 lechas of land to Sushila @ Surila Devi, proforma defendant No. 6 by registered deed of sale dated 18.2.1976, leaving 1 katha 18 lechas to be inherited by the sons and daughters of Sachi Bhusan Hazarika through the two wives in equal proportion. The plaintiff has claimed 1/5th share of the land measuring 1 katha 18 lechas being one of the daughters of Sachi Bhusan Hazarika and as Hiran, the second son of Sachi Bhusan Hazarika through Golmai during pendency of the suit expired unmarried.
2. The suit was contested by the defendant Nos. 1 and 2 by filing a joint written statement. A written statement was also filed by the defendant Nos. 3, 4 and 5 supporting the claim of the plaintiff. The defendant No. 6 however, did not contest the suit. The defendant Nos. 1 and 2 in the written statement has taken the stand that as Sachi Bhusan Hazarika died prior to the Hindu Succession Act, 1956 (in short the 1956 Act) came into force neither Hareswari, one of the wives nor Bijuli the original plaintiff would inherit any property left by Sachi Bhusan Hazarika. It has also been pleaded that Bijuli having been married in the year 1954 and being not in possession of any land originally belonged to Sachi Bhusan Hazarika, she is not entitled to the benefit of Section 14 of the 1956 Act. It has, however, been admitted that Bijuli, the original plaintiff had a limited ownership over the land of Sachi Bhusan Hazarika without any right to claim partition and inheritance.
3. The trial court on the basis of the pleadings of the parties framed the following issues for determination:
1. Whether there is any cause of action for the suit?
2. Whether plaintiff has right, title and interest over 1/6th share of the property of late Sachi Bhusan Hazarika including the suit property?
3. Whether the suit is time barred by limitation?
4. Whether the plaintiff is entitled to a decree as prayed for?
5. Whether the suit is liable without joining other suit of late Sachi Bhusan Hazarika and Sushila Devi is a necessary party?
6. To what relief if any, the plaintiff is entitled?
7. Whether the suit is properly valued and court fee paid?
Additional Issues :
8. Whether the suit is maintainable in its present form in view of the provision contained in the Partition Act?
9. Whether the plaintiffs Smti. Bijulibala Das (since expired) was the daughter and legal heir of late Sachi Bhusan Hazarika?
10. Whether there is proper identification of the suit land?
11. Whether the suit is collusive in nature due to collu
