Heard Mr. K. Bhattacharjee, the learned counsel appearing for the petitioners who are the defendants in the Title Suit No.242/2007, pending in the file of the learned Munsiff No.3, Guwahati. None is available to represent the respondent/plaintiff.

2. The respondent/plaintiff claiming to be the wife of Sachindra Nath Saikia, sought a decoration to 1/4th share of the suit land owned by the original predecessor Late Kirti Ram Saikia. The pattadar left behind four sons of which Sachindra Nath Saikia was the 3rd son and since the widow was deprived of her share of the family property at village North Guwahati in Sila Sindurighopa Mouza of Kamrup District, declaratory/corrective relief was sought by the plaintiff in the Title Suit No.242/2007.

3. In their joint Written Statement (W.S.), the defendant Nos.1—8 on the other hand claimed that their brother/uncle Sachindra Nath Saikia was never married to the plaintiff and therefore her claim to the family property was repudiated by the defendants.

4. On the basis of the pleadings of the parties, the learned Trial Judge framed six issues including the 3rd issue on “Whether the plaintiff is the wife of Late Sachindra Nath Saikia, if so, whether she is entitled to her share of 1/4th of the suit land”?

5. The issue so framed by the Court relates to the matrimonial status of the plaintiff and therefore the defendants filed a petition on 5.5.2010 (Annexure-5) under Section 151 of the C.P.C. to pray for keeping the suit in abeyance until the competent Family Court decides as to whether the plaintiff is the married wife of Late Sachindra Nath Saikia.

6. The defendants’ application was opposed by the plaintiff who furnished the death certificate of Late Sachindra Nath Saikia, the legal heir certificate issued by the D.C., Kamrup and the Voters List showing Late Sachindra Nath Saikia and the plaintiff as voters of the Jalukbari Assembly Constituency. She also claimed that her husband Sachindra Nath Saikia while serving as the Circle Superintendent of the Central Water Commission, during his lifetime, nominated the plaintiff as his wife for all his service benefits. On the basis of these documents, the plaintiff asserted that her legal status as the widowed wife of Late Sachindra Nath Saikia can’t be disputed and accordingly she applied for dismissal of the application filed by the defendants.

7. However the trial Judge observed that for declaration of title and interest to 1/4th share of the suit land, a separate issue as to whether the plaintiff is the wife of Late Sachindra Nath Saikia is unnecessary. With this observation, the defendants’ application was dismissed and the 3rd issue was recast to read as “3 Whether the plaintiff is entitled to the one fourth share of the suit land?” , by the impugned order dated 18.9.2010 (Annexure-7) in the Misc. (J) Case No.259/2010, by the learned Munsiff No.3, Guwahati.

8.1. Assailing the legality of the above order passed by the Trial Court, Mr. K. Bhattacharjee, the learned counsel refers to Section 7 of the Family Court’s Act, 1984 (hereinafter referred to as ‘the Family Court Act’) to argue that the matrimonial status in a Court proceeding relating to property, can only be decided by the jurisdictional Family Court and since a competent Court is available, the question as to whether the plaintiff is the widowed wife of Sachindra Nath Saikia should be decided by the Family Court and not by the Civil Court.

8.2. The defendants then contend that since the defendants had denied that the plaintiff is the wife of Late Sachindra Nath Saikia initially, the 3rd issue was correctly framed by the Court on 15.9.2007. Therefore Mr. Bhattacharjee argues that the necessary issue should not have been changed as it will mean that the plaintiff’s property claim will now be considered on the assumption that she is the legally married wife of Late Sachindra Nath Saikia.

9. The above contention of the defendant is un-rebutted by the respondent/plaintiff and today