Point of Law: Enforcement of amendment of Hindu Succession Act before 09.09.2005 - Applicability of Section 6 of Hindu Succession Act as amended by Hindu Succession (Amendment) Act, 39 of 2005, needless to say, this section is not at all applicable in deciding suit being instituted within jurisdiction of this Court because all Hindus residing here are guided by Dayabhaga School of Hindu law and not by Mitakshara School of Hindu law.

ORDER :

1. This second appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 01.12.2016 passed by the learned District Judge, North Tripura, Dharmanagar in T.A. No. 06 of 2015 titled as Sri. Motilal Roy and Others vs. Sribash Roy and Others, the principal respondents and Smt. Swapna Rani Roy and Others, proforma respondents, whereby and whereunder, the learned District Judge dismissed the appeal holding the appeal was devoid of merit upholding the judgment and preliminary decree dated 02.05.2015 and 08.05.2015 respectively passed by the learned Civil Judge Sr. Division, Dharmanagar, North Tripura, in Title Suit (Partition) No. 32 of 2013 wherein, the learned trial Judge passed the preliminary decree on contest with costs. Motilal Roy being died during the pendency of the appeal has been substituted by his legal heirs as 1(a) to 1(d) and accordingly, the cause title of the memo of appeal has been corrected.

2. Factual matrix:

2.1 Pramila Roy, the predecessor-in-interest of the principal respondents filed Title Suit No. 32 (Partition) of 2013 for partition of the properties described in the schedule of the plaint. She claimed that her father Kamini Kumar Roy was the original owner and possessor of the suit land and said Kamini Kumar Roy was the predecessor-in-interest of the parties to the suit who died intestate leaving behind the plaintiff, the principal defendants and the proforma defendants. It is contended that on the death of the said Kamini Kumar Roy, the properties devolved upon his heirs and she claimed her share over the suit property as stated in the plaint. In support of the plaintiff’s claim, she submitted the certified copy of khatian No. 2016 of Mouja Dharmanagar Town in the name of the said Kamini Kumar Roy. She further contended that she asked the parties to the suit for amicable partition of the suit land but as the said claim was not conceded to, the cause of action arose on 23.08.2013, on which date the last request for amicable partition was made and she further contended that the cause of action was continued.

2.2 The defendant Nos. 1 to 8 submitted a joint written statement disputing that Kamini Kumar Roy was the real owner of the suit land. In the written statement, it was further disputed that the suit land would be divided into eight equal shares amongst sons and daughters of Kamini Kumar Roy. In the written statement, the defendant tried to project a case that in 1964, the defendant No. 1 came to Dharmanagar from the erstwhile East Bengal, now Bangladesh and in 1966, he started a shoe shop in the name and style of Padasobha and with the saving earned from the said business, he brought his parents, brothers and one sister, defendant No. 1 from Bangladesh in 1971 and all of them including the defendant No. 1 started residing in a rented house in the town of Dharmanagar. It was stated that on 25.04.1974, the defendant No. 1 purchased the suit land but at that time, his parents were alive and the father being accepted and regarded as the guardian of the family, the property was purchased in the name of the father Kamini Kumar Roy but in fact the defendant No. 1 was the real owner of the property. It was also stated that the plaintiff got married in 1943 and never came to the State of Tripura while the pro-defendant No. 9 and pro-defendant No. 11, other two sisters of the defendant No. 1 and his brothers were married in East Bengal and never came to the suit land. He stated that though the property stood in the name of Kamini Kumar Roy, the defendant No. 1 viz. Motilal Roy was the real owner of the property and as such, the suit land was not liable to be partitioned but was the property of the defendant No. 1.

2.3 Based on the pleadings, issues were framed and thereafter, the evidences were let in to substantiate the respective pleadings.

3. Having heard the submissions of the learned counsel appearing for the parties and on consideration of the ma