UPENDRA NATH DAS Vs. CHINTAMONI DEVI

JUDGEMENT

(1.) This appeal arises out of a suit for partition instituted by the present respondent No. 1, Ghinta-moni Devi, in which a preliminary decree has been passed by the learned Subordinate Judge. The plaintiff is the widow of one Mahendra Nath Das who died on 12th June, 1956 leaving as heirs besides the plaintiff, two sons Upendra and Keshab by another predeceased wife. The plaintiff instituted the suit on 6th May, 1957 and claimed partition of the property mentioned in the schedule of the plaint. Those properties included certain agricultural lands, three dwelling-houses, one at Jalpaf-guri town and two in village Jorepakri. There was also a vacant plot of land in Jalpaiguri town. Besides these immoveable properties there were also other properties in the form of tea shares, three iron safes and one gun, the licence of which stood in the name of Mahendra Nath Das; but aftet his death the gun was surrendered and thereafter Upendra took out the licence in his own name and was possessing that gun. The plaintiff claimed one-third share of all those properties.

(2.) Defendants 1 and 2 contested the suit and raised several pleas. To meet some of the objections raised in the written-statemeut the plaint was amended by adding some parties and also by including in the Schedule of the plaint some immoveable properties. Evidence was led on both sides and on consideration of that evidence the learned Subordinate Judge held that as Mahendra Nath Das died on 12th June, 1956, that is, five days before the Hindu Succession Act, Act XXX of 1956, came into force, succession to his estate will be governed by the Hindu Women's Right to Property Act, that is, Act XVIII of 1937, which was the law then prevailing. In that view, the learned Subordinate Judge held that the plaintiff would not be entitled to any share in the agricultural lands.

(3.) About dwelling houses, the learned Subordinate Judge held that the plaintiff is entitled to one-third share of those but it was pleaded on behalf of the defendants that in view of Section 23 of Act XXX of 1956 the plaintiff would not have unrestricted right of partition. This contention was pressed by reference to section 4 of Act XXX of 1956. The learned Subordinate Judge overruled that contention upon his view that the language in Section 23 of Act XXX of 1956 mentions 'a dwelling house' but in the present case there were as many as three dwelling houses. Upon that reason he held that Section 23 was not applicable and passed a decree in favour of the plaintiff in respect of the dwelling houses and also vacant plot of land in the Jalpaiguri town mentioning of course that the division should be made by adherence to the equitable principle of respecting possession of! a sharer and if necessary by compensating by payment of money in the form of owelty money. He also allowed one-third share of tea shares and one-third of the three iron safes which he held to be the property of deceased Mahendra Nath Das. Against that preliminary decree passed in the partition suit this present appeal has been preferred by the two sons of Mahendra Nath Das who are defendants 1 and 2.