KALYANI DAS Vs. MINATI DAS [MAJUMDER]

JUDGEMENT

(1.) This appeal arises from the judgment dated 20.12.2014 delivered in Title Suit (P) 50 of 2008 by the Civil Judge, Sr. Division, No.2, Agartala, West Tripura. By the said judgment the trial court dismissed the suit returning the finding that the suit properties cannot be held to be joint properties of the parties to the suit. Being aggrieved by the said finding, the plaintiff has preferred this appeal.

(2.) The facts as laid in the plaint is that one Shashi Bhusan Das, the father of the plaintiff and the defendants died on 26.01.1977 leaving behind the plaintiff and the defendants and their mother Surabala Das who, as a matter of records died on 01.03.1988. to inherit the suit land. After death of their mother, according to the plaintiff, the plaintiff and the defendants became the heirs, competent to inherit the suit land which has been described under the schedule of the plaint, which is gainfully reproduced for reference:

(3.) The defendant No.1, namely Minati Das Majumder. supported the claim of the plaintiff and urged for passing a decree providing 1/4th share to each of the parties by separating their share by metes and bounds, but the defendants No.2 and 3 respectively Smt. Jharna Das Majumder and Smt. Aparna Das by filing a separate written statement seriously disputed in respect of status of the suit property. They have specifically pleaded in their written statement that their predecessor namely Shashi Bhusan Das was the joint owner and possessor of the land under Khatian No.3265 with one Smt. Parul Rani Das. Parul Rani Das died leaving behind her 5 sons and 4 daughters and her husband, namely Bireswar Dasgupta but they are not brought on record in the suit even the entire property left by Surabala Das, Shashi Bhusan Das and Parul Rani Das has not been brought on record in the suit. According to them, when a suit for partition is framed all the joint properties are to be brought in the stock, to divert any prejudice. Even sons and daughters of Parul Rani Das, namely Sri Ajit Dasgupta, Sri Sujit Dasgupta, Sri Khokan Dasguupta, Sri Kajal Dasgupta since deceased, his heirs. and Sri Chandan Dasgupta are all necessary parties in the suit. The land under Mouja- Khedabari, Khatian No.3265, measuring 0.73 acres has as well not been brought on record. Even the land recorded under Khatian No.3234, Jote-3261 of Mouja-Khedabari, measuring 0.72 acres has not been brought under the suit. Thus, the entire joint property, according to them, was not brought for adjudication. In Para-12 of their written statement, the defendants No.2 and 3 have stated that during the lifetime of Shashi Bhusan Das, their father, he executed a Will in favour of the defendant No.3 and that fact of bequest was known to the plaintiff. The other daughters of Shashi Bhusan Das are well settled in their life but the defendant No.3 had no financial stability. Considering that aspect of the matter, Shashi Bhusan Das had bequeathed his entire property to the defendant No.3. Hence, the plaintiff or other legal heirs of Shashi Bhusan Das are not entitled to any share by inheritance as the property as described in the schedule of the plaint was not intestate. The defendants No.2 and 3 submitted the original unregistered Will dated 26.01.1976 executed by Shashi Bhusan Das in favour of Aparna Das the defendant Non.3., along with Khatians No.3265,3234 Jote-3261, 691,692,693-1 and 693-2 of Mouja- Khedabari. Even after the specific disclosure in respect of existence of the said Will, the plaintiff did not amend his plaint nor did file any supplication with leave of the court. Initially, the preliminary decree was passed, pursuant to the judgment dated 23.08.2013 but on appeal by the defendant No.3, Aparna Das, the said judgment dated 23.08.2013, was set aside by this court by the judgment dated 22.09.2014 delivered in RFA No.18 of 2013. On relying a decision of the apex court in Hem Nolini Judah (since deceased) through her Legal representative Marlean Wilkinson v. Isolyne Sarojbashini Bose and Ors, reported in AIR 1962 SC 1471, this court came to the conclusion that since the defendant No.3 did not obtain probate of the Will, she was not entitled to claim any right under the Will in terms of Section 213 of the Indian Succession Act, but this court by the judgment dated 22.09.2014, having appreciated Sections 57 and 213 of the Indian Succession Act, held that Section 213 would only apply if the Will is covered under Clauses-(a) or (c) of Section 57 of the Indian Succession Act. For purpose of reference, Sections 57 and 213 of the Indian Succession Act are reproduced hereunder: