IN THE GAUHATI HIGH COURT PRINCIPAL SEAT AT GUWAHATI. RSA No. 71 of 2005

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI APPELLANTS : RSA No. 71 of Smti Nanibala Dutta W/o Late Nandaram Dutta R/O/Toklai, P.O. Rajabari, Jorhat. 2. Shri Dilip Dutta, S/o Late Nandaram Dutta, R/O Margherita, PO Margherita 3. Shri Jonardan Dutta S/O Late Nandaram Dutta, R/O Tocklai, PO Rajabari, Jorhat. 4. Smti Ranjita Dutta D/O Late Nandaram Dutta R/O Tocklai, PO Rajabari, Jorhat. 5. Shri Abani Dutta, S/O Late Nandaram Dutta, Kamalabari P.H.E. PO Kamalabari, Majuli RESPONDENTS: 1. Smti. Rupama Dutta -Versus- 2. Smti Purnima Dutta D/O Late Nandaram Dutta 3. Smti Ranima Dutta, D/O Late Nandaram Dutta All are resident of Christian Patty Chariali, Near Tengani Nill, PO Sibsagar District Sibsagar, Assam Page 1 of 9

2 BEFORE HON BLE MR. JUSTICE ABHAY MANOHAR SAPRE, THE CHIEF JUSTICE For the appellants For the respondent : Mr. B Banerjee, Adv. : Mr. D Das, Adv. Date of hearing : Date of delivery of : 20 th May, 2014 Judgment JUDGMENT AND ORDER This is a second appeal filed by the plaintiffs under Section 100 of C.P.Code against the judgment/decree dated passed by Civil Judge (Senior Division), Jorhat in Title Appeal No.24 of 2003 which in turn arise out of judgment/decree dated passed by Civil Judge (Junior Division) No.1, Jorhat in Title Suit No.95 of By impugned judgment/decree, both the courts below dismissed the appellant s (plaintiff s) suit for declaration of their title and share in the suit land, for confirmation of their possession over the suit land, and for injunction restraining the respondents (defendants) from disposing of the suit land in relation to the suit land etc. So the question which arise for consideration in this appeal is whether two courts below were justified in dismissing appellant s suit and thereby were justified in not granting them any relief which they had claimed in the suit against the respondents (defendants) in relation to the suit land. This second appeal was admitted for final hearing on following substantial questions of law: 1. Whether the learned courts below are justified in dismissing the suit holding that the Defendants are legal heirs of Nandaram Dutta ( since deceased) though the Defendants have admitted in written Page 2 of 9

3 statement that the plaintiff No.1 is the first wife of the deceased and therefore the property of the deceased cannot devolve on them as per Schedule 1 of Section 8 of the Hindu Succession Act, Whether the learned courts below are justified in holding that there is no cause of action for the suit, though Section 100 of the Assam Land and Revenue Regulations provides that when there is an objection in regard to the title in a case applied for partition, the civil court has jurisdiction to entertain the suit in order to determine the right of the parties. In order to appreciate the controversy involved in the suit and now in this second appeal, relevant facts which found proved by two courts below need mention herein below. The suit property described in the schedule attached to the plaint belonged to one Nandaram Dutta. He received the suit property from his ancestral. He had two wives Nani Bala Dutta and Rupama dutta. Out of the wedlock with Nani Bala, three sons and one daughter were born whereas out of the wedlock with Rupama, two daughters were born. The family tree of Nandaram is mentioned herein. Nandaram Dutta Smti Banibala Dutta (First wife) Plaintiff No.1 Smti. Rupama Dutta (Second wife) Defendant No.1 Dilip Dutta Jonardan Dutta Ranjit Dutta Abani Dutta Purnima Dutta Ranima Dutta P/No.2 P/No.3 P/No.4 P/No.5 D/No.2 D/No.3 On the death of Nandaram in 1971, disputes arose amongst the two surviving widows, sons and daughters born from them. The disputes were essentially between one widow, his three sons and a Page 3 of 9

4 daughter on the one side and other widow and her two daughters on the other side for their share in the properties left by Nandaram which accordingly to them had devolved upon them. The disputes also went to revenue courts resulting in passing some orders in the matter of mutation etc. The appellants (plaintiff s) i.e. one widow, her three sons and a daughter filed a civil suit against the other widow and her two daughters out of which this second appeal arises for a declaration that they are the joint co-owners inter see of the entire suit property (specified in schedule to the plaint) on the death of Nandaram as his heirs and legal representatives to the exclusion of respondents that respondent no. 1 (defendant no. 1) was not legally married wife of late Nandaram but was essentially his keep and hence neither she and nor her two daughters born out of such relationship had inherited any right, title and interest in the suit property of Late Nandaram, that respondent s (defendant s) be, therefore, restrained from disposing of the suit land to any third party, that respondent s (defendant s) name be deleted from the revenue records from the suit lands. The appellants in the alternative also claimed that at best the respondent s/defendant s be held entitled to get 2/7 th share in the suit property (see para 18 of the plaint) as against the appellants and lastly any other reliefs as may be permissible in law to grant on facts and circumstances of the case. The aforesaid reliefs were claimed on the factual assertion that appellant no. 1 (plaintiff no. 1) was legally married wife of late Nandaram and out of this wed lock, three sons and one daughter Page 4 of 9

5 (appellant nos. 2, 3, 4 and 5/plaintiff nos. 2, 3, 4 and 5) were born. It was alleged that respondent no. 1 (defendant no. 1) was not Nandaram s legally married wife and nor the two daughters born out of this relations were his legitimate daughters. It was alleged that due to this reason entire suit property devolved upon the appellant s (plaintiff s) being the only surviving heirs of late Nandaram and hence the appellants were entitled to claim their joint ownership over the suit property. It was alleged that need to file the civil suit against the respondent s (defendant s) arose because the disputes had arisen between the parties in relation to their ownership rights in the suit properties and for that respondent s had also approached to the revenue authorities for mutation of their names and obtained some orders. These in substance were the averments made in the plaint for claiming reliefs. The respondent s (defendant s) filed their written statement. While denying the claim, it was averred that respondent no. 1 (defendant no. 1) married to Nandaram on and out of this legally performed marriage, two daughters (respondent nos. 2 and 3 - defendant nos. 2 and 3) were born. It was alleged that the respondents/defendants were therefore entitled to claim share in the suit property left by Nandaram in equal share with appellants. Some other objections were also raised such as there was no cause of action to file suit, that suit was barred etc. This in substance was the defense. The trial court framed issues and accordingly parties adduced evidence. The trial court held that respondent no1 was Page 5 of 9

6 legally married to Late Nandaram on It was also held that out of this wedlock, two daughters (respondent nos. 2 and 3) were born. The trial court after recording these findings in respondent s (defendant s) favour dismissed the suit. The plaintiff felt aggrieved filed the first appeal. The first appellate court concurred with the findings of the trial court and dismissed plaintiff s appeal. It is against this judgment/decree, the plaintiff s have filed this second appeal. As mentioned above, the appeal was admitted for final hearing on aforementioned substantial questions of law. After having heard the learned counsel for the parties and on perusal of the record of the case, I have formed an opinion that this appeal involves some more substantial questions of law and hence in exercise of powers conferred under Section 100 (4) of C.P.Code, following additional substantial questions of law are also framed. In my view, answering these additional questions will finally determine the entire controversy arising between the parties and would meet the ends of justice without there being any need to go for another round of litigation by any party. 3. When the plaintiffs in para 18 had claimed for grant of alternative relief of effecting partition of their respective shares in the suit property, whether two courts below were justified in not considering grant of this relief? 4. Having held in defendant no. 1 s favour that she was married with late Nandaram on and that their marriage was legal, was it not the duty of the courts to have worked out the parties shares in the suit in the suit property of Nandaram who died Page 6 of 9

7 intestate by applying principles contained in Section 8 of the Hindu Succession Act? 5. When all the co-sharers were party to the suit, and when the plaintiffs had also claimed a relief of declaration /partition of their share ( 5/7 and 2/7 ) by way of alternative relief in the plaint ( para 18 ), whether appellants were entitled to claim a relief of partition of the suit property against the respondents specially in the light of finding by 2 courts? Having heard the learned counsel for the parties, I am inclined to allow the appeal and while setting aside the judgment/decree of the two court s below pass a preliminary decree in appellant s favour and against the respondents/defendants in relation to the suit property. In my considered view, when two courts below recorded a categorical finding of fact that respondent no. 1/defendant no. 1 was legally married to late Nandaram on and when it was not in dispute that appellant no. 1 (plaintiff no. 1) was also the legally married wife of late Nandram, the appellants were entitled to claim relief in relation to suit properties to the extent indicated hereinbelow. Indeed, since both the marriages were performed prior to Hindu Marriage Act coming into force ( ), both were legal and not governed by Hindu Marriage Act and specially Section 5 read with Section 17 ibid. Similarly both the widows and their sons and daughters enjoyed the status of class I heir as defined in the schedule to Hindu Succession Act and were therefore entitled to claim their respective equal shares as provided in Section 8(a) of Page 7 of 9

8 the Hindu Succession Act in the suit properties. Since Nandaram died intestate, each one became entitled to get 1/8 th share in his property because in all there were eight legal representatives of late Nandaram (2 widows, 3 sons and 3 daughters). So far as the finding that respondent No.1 was legally married wife of Nandaram was concerned, it is a pure finding of fact, and being concurrent in nature binds this court while hearing second appeal. It is apart from the fact that it is otherwise just and proper and hence does not call for any interference. It is neither against the pleading, nor against the evidence and nor found to contravene any provision of law. It is also not perverse to such an extent that no judicial man with average acumen can ever record. In the light of foregoing discussion, the appellants/plaintiffs are held entitled to claim a preliminary decree for partition and separate possession of their respective shares in the suit property so also the defendants Nos. 1 to 3. It is also for the reasons that all the legal representative/heirs of the deceased are arrayed as parties to the suit, and are heard. In view of foregoing discussion, the additional question Nos. 3, 4 and 5 are answered in appellants favour and against the respondents. In the light of this, the question Nos.1 and 2 need not be answered. In view of foregoing discussion, the appeal succeeds and is allowed in part. The impugned judgment and decree passed by the two courts below is set aside. Instead, the appellants (plaintiff s) civil suit out of which this appeal arises is decreed in part. A Page 8 of 9

9 preliminary decree for partition and separate possession of the suit property is passed against the defendants as under: 1. Plaintiff nos. 1, 2, 3, 4, 5 and defendant nos. 1, 2 and 3 are declared joint owner/co-sharer in equal share to the extent of 1/8 th each in suit property specified in schedule attached to the plaint. 2. The case be sent to concern collector/specified officer under Section 54 of Code of Civil Procedure for effecting partition of the suit property by allotting 1/8 th specific share to each joint owner/co-sharer by metes and bounds in the suit property. 3. After the partition is made by Collector, the court to pass a final decree for partition and possession in terms thereof. 4. The respondent s/defendants shall not sell/transfer/alienate any suit land or its part till final decree is passed. No cost. CHIEF JUSTICE Gunajit/- Page 9 of 9