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2019 Supreme(Gau) 967
IN THE HIGH COURT OF GAUHATI
Prasanta Kumar Deka, J.
Sarada Kalita And Others - Appellants
Vs.
Nishamani Kalita And Another - Respondents
Regular First Appeal No. 46 of 2015
Decided On : 27-08-2019
R. Mahanta, Adv.
The main legal point established in the judgment is the entitlement of the plaintiffs/respondents to a 1/4th share over the properties left behind by Late Anup Chandra Kalita, except for the Gas Agency, which the defendant No. 1 is entitled to enjoy, subject to payment of 1/4th share of the sale proceeds to the plaintiffs/respondents and other co-owners.
Headnote:
Partition - Hindu Succession Act - Schedule A, B, C, D - The court discussed the entitlement of the plaintiffs/respondents to a 1/4th share over the properties left behind by Late Anup Chandra Kalita. The court also considered the liabilities left behind by Late Anup Chandra Kalita and the sale proceeds received by the defendant No. 1. The court upheld the trial court's finding that the plaintiffs/respondents are entitled to a 1/4th share of the properties, except for the Gas Agency, which the defendant No. 1 is entitled to enjoy, subject to payment of 1/4th share of the sale proceeds to the plaintiffs/respondents and other co-owners.
Fact of the Case:
The plaintiffs/respondents filed a suit against the defendant/appellant for declaration of their right, title, and interest to the extent of 1/4th share over the suit properties, for partition, and permanent injunction. The defendants/appellants claimed that the plaintiffs/respondents are not entitled to any share over the landed property left by Late Anup Chandra Kalita.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiffs/respondents, and the appellate court upheld the finding that the plaintiffs/respondents are entitled to a 1/4th share over the properties left behind by Late Anup Chandra Kalita, except for the Gas Agency, which the defendant No. 1 is entitled to enjoy, subject to payment of 1/4th share of the sale proceeds to the plaintiffs/respondents and other co-owners.
Issues: The issues included the cause of action for the suit, maintainability of the suit, non-joinder of necessary parties, and whether the suit was barred by the law of limitation. The court also considered the ownership of the properties left by Late Anup Chandra Kalita and the entitlement of the plaintiffs to partition of the share of the properties.
Ratio Decidendi: The court held that the plaintiffs/respondents are entitled to a 1/4th share over the properties left behind by Late Anup Chandra Kalita, except for the Gas Agency, which the defendant No. 1 is entitled to enjoy, subject to payment of 1/4th share of the sale proceeds to the plaintiffs/respondents and other co-owners.
Final Decision: The appeal was dismissed, and a modified decree was drawn to reflect the entitlement of the plaintiffs/respondents to a 1/4th share over the properties left behind by Late Anup Chandra Kalita, except for the Gas Agency, which the defendant No. 1 is entitled to enjoy, subject to payment of 1/4th share of the sale proceeds to the plaintiffs/respondents and other co-owners.
JUDGMENT :
Prasanta Kumar Deka, J.
Heard Ms. N Saikia, learned counsel for the appellant and Mr. B C Talukdar for the respondents.
2. The judgment and decree dated 21.04.2015 passed in T.S. No. 242/2007 by the learned Civil Judge No. 2, Kamrup (M) at Guwahati is under challenge. The respondents as plaintiffs filed a suit against the defendant/ appellant for declaration of their right, title and interest to the extent of 1/4th share over the suit properties, for partition and permanent injunction. The case of the plaintiffs/ respondents is that Anup Chandra Kalita was the husband of the defendant/ appellant No. 1. Anup Chandra Kalita died on 05.02.2005 leaving behind his wife, defendant/ appellant No. 1, two daughters, namely, Smt. Sneha Choudhury and Smt. Priyanka Kalita the defendants/ appellants No. 2 and 3 and the daughter-in-law and minor grandson, the plaintiffs/ respondent Nos. 1 and 2. The only son of Late Anup Chandra Kalita i.e. the husband of the plaintiff/ respondent no. 1 predeceased him on 10.12.2004 at the age of about 25 years. On the death of Anup Chandra Kalita, both movable and immovable properties devolved on the legal heirs of Late Anup Chandra Kalita. The said properties are intestate and as such the plaintiffs/ respondents are entitled for 1/4th share of the said properties left behind by Late Anup Chandra Kalita. Accordingly, the plaintiffs/ respondents sought for declaration of their right, title and interest to the extent 1/4th share over the properties left behind by Late Anup Chandra Kalita described in the schedules of the plaint and for partition. The schedule of suit properties are described here in below.
Schedule-A
(a) Land measuring 3 K, 19 Lechas covered by Dag No. 255 of Patta No. 2 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup.
(b) Land measuring 2 K, 4 L. covered by Dag No. 256 of K.P. Patta No. 112 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup.
(c) Land measuring 1 K, 7 Lessas covered by Dag No. 428 of K.P. Patta No. 316 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup
(d) Land measuring more or less 1 Katha, excluding the land covered by RCC building of Dag No. 391 (o)/522 (N) of K.P. Patta No. 22 of village Maligaon, Mouza Jalukbari, district- Kamrup
Schedule-B
(a) One four storied RCC building (ground+third) containing 1364 sq. ft. in each floor assessed as holding No. 716 of Ward No. V of Guwahati Municipal Corporation in the name of Anup Chandra Kalita standing over the land of Dag No. 391 (O)/522(N) of patta No. 22 of village Maligaon, Mouza-Jalukbari, dist- Kamrup.
(b) One Assam Type house consisting of ten rooms standing over the land of dag No. 428 of Patta No. 316 of Kahikuchi, Mouza Dakhinrani, District- Kamrup
Schedule-C
A Gas Agency under the name and style of Shivam Gas Agency at Maligaon, Guwahati under license No. EXPLO-G/EC/AS/06/247G18896 Tread licence No. 5270/12/27; and establishment licence No. SEA/CE/09/121. The monthly income of the said gas agency is at Rs. 1,44,000/-. After deducting the necessary expenses for the said gas agency. The monthly expenses agency is at about Rs. 75,283/-/ The net profit from the said Gas Agency per month is at Rs. 68,717/-.
Schedule-D
The sale proceeds of Rs. 60 Lakh received by the defendant No. 1 from the purchasers of 5 Bighas of the land covered by dag No. 66 of K.P. Patta No. 15 of village Kahikuchi under Dakhinrani mouza, district-Kamrup.
3. The defendants/ appellants filed their written statement taking the defence that the plaintiff/ respondent No. 1 during life time of her husband Late Angshuman Kalita started residing separately from the family of the defendants/ appellants and as such, the plaintiffs/ respondents are not entitled to get any share over the landed property left by Late Anup Chandra Kalita. In respect of the Shivam Gas Agency, the stand of the defendants/ appellants is that initially the license issued for operation of the said Gas Agency stood in the name of Late Anup Chandra Kalita and on his
