The main legal point established in the judgment is the application of Mohammedan Law in determining the entitlement of the parties to the property left by the deceased father.

1. Heard Mr. Sheeladitya, the learned Advocate for the appellants, Mr. N. Alam, learned Advocate for the respondent No. 1 and proforma respondent No. 3 and Mr. M. Das, the learned Advocate for the respondent No. 2.

2. By this appeal under Section 96 CPC, the appellants have challenged the judgment and decree dated 02.08.2004, passed by the learned Civil Judge (Senior Division) No. 3, Kamrup, Guwahati in Title Suit No. 194/1999, thereby partly decreeing the suit.

3. Before entering into the merit of this appeal, it would be relevant to mention that on the submissions made by the learned counsel for the respondent No. 2, that the respondent No. 2 had filed an appeal, being R.F.A. No. 140/2004 before this Court against the same impugned judgment, this Court by order dated 08.08.2017, had directed this appeal to be listed for hearing along with the said RFA 140/2004. The Registry had put-up a note to inform this Court that pursuant to the orders passed by this Court, the record of RFA No. 140/2004 was transferred for disposal before the Court of the learned District Judge, Kamrup, Guwahati vide Memo No. HCXVI-2013/FA dated 13.09.2006. However, having seen that for last 12 years the parties to the said appeal had not taken any steps in the said appeal and they are not aware of the present status and/or outcome of the said appeal, this Court on finding that the LCR of TS No. 194/1999, relating to the said RFA No. 140/2004 was available in ‘lower court record’, by order dated 02.02.2018, this appeal was directed to be listed for hearing, even at the risk of conflict of decision by both courts.

4. The brief facts of the case is that the appellants along with the proforma respondent No. 3, being sisters, had instituted TS No. 194/99 against their mother and brother, inter-alia, for declaration that they are entitled to their share in the properties left behind by their father, namely, Late Syed Safed Ali, who had died on 30.08.1998 and for direction to the respondents No. 1 and 2 for rendition of accounts derived from rental income from the houses let out in the property by their father for his maintenance, and for a decree of partition as per proportion allowable under the Mohammedan Law. During the pendency of the suit, the proforma respondent No. 3, who is the unmarried sister of the appellants withdrew from the suit and, as such, her same was struck-out. It was stated that the appellants are married and are staying with their respective families.

5. The respondents No. 1 and 2 applied for succession certificate under Section 372 of the Succession Act, in respect of several bank accounts left behind by the predecessor of the parties, being S.C. Case No. 565/1998, which was allowed by the learned District Judge, Kamrup, Guwahati, despite objection filed by the appellants. The appellants had applied for revocation of the succession certificate, the result of which is stated to be not known by the learned advocates for the parties. The respondents No. 1 and 2 had contested the suit by taking usual pleas of the suit not being maintainable, the suit being hit by principles of estoppel, waiver and acquiescence, etc., and they had denied that the appellants were joint owners of the properties left behind by their said predecessor- in- interest. It was stated that the father of the appellants had opened two bank accounts jointly with the appellant No. 1 and proforma respondent No. 3, and on death of their father, the appellant No. 1 and proforma respondent No. 3 had withdrawn the balance lying in the said two bank accounts and, as such, the respondents No. 1 and 2 took a stand that the said money be deposited to ascertain the share of the appellants. It was prayed that the suit be dismissed.

6. Upon pleadings, the learned trial court had framed and re-casted the issues for trial as follows:-

1. Whether the suit is maintainable in its present form?

2. Whether there is any cause of action, if not, whether the suit is liable to be