SARMILA BOSE Vs. SMT. KRISHNA BOSE & ANR.

JUDGEMENT

(1.) The subject matter of challenge in this revisional application is the order dated Dec. 20, 2016 passed by the learned Civil Judge (Senior Division), 4th Court, at Alipore in the partition suit, being Title suit No. 12608 of 2014. By the impugned order, the learned Court below rejected application filed by the revisional petitioner, the plaintiff in the suit, under Order 12, Rule 6 of the Code of Civil Procedure, 1908 (in short "the Code").

(2.) The facts giving rise to the present revisional application lay in a narrow compass. The petitioner is the daughter of Dr. Sisir Kumar Bose, since deceased while the opposite party no. 1 is her mother, the opposite party nos. 2 and 3 are her two brothers. The petitioner has filed the partition suit claiming, inter alia, a preliminary decree declaring the respective shares of herself and the opposite party nos. 1 to 3 in the estate of her said deceased father, including the property at Premises No. 19, Sarat Bose Road, Kolkata, (hereinafter referred to as the "said property"), a decree directing the opposite parties to disclose the details of the estate of her deceased father and a final decree for partition in respect of the estate of her said deceased father, including the said property by metes and bounds. The petitioner has also claimed that if any of the properties or portion thereof is found to impartible, to sell the said property and distribute the sale proceeds thereof amongst the parties, as per their shares.

(3.) In the plaint it is the case of the petitioner that her deceased father was the absolute owner of the said property and after his father died intestate, leaving behind herself and the opposite parties as his only heirs/heiress and legal representatives, they jointly inherited the entire estate including the said property in equal shares as per the provisions of the Hindu Succession Act, 1956. According to the petitioner, she herself and the opposite parties are jointly the absolute owners of the said property, each having undivided one-fourth share therein and in spite of her repeated demands, the opposite parties are not agreeable to partition the estate of her deceased father, including the said property. On these averments, the petitioner filed the partition suit against the opposite parties. The opposite parties are contesting the suit and they have jointly filed their written statement in the suit. In the written statement, the opposite parties have claimed that the area of the said property (described as the "suit property") is 6 cottahs and 9 chittaks and the petitioner's share in the said property comes to 1181.25 square feet, the division of the said property according to their share by metes and bounds will lead to diminution of its value which is their family dwelling house and they are entitled to retain the same. The opposite parties have further alleged in the written statement that they are not willing to sell their share in the said property which is one of the well known houses in India , that is, a house of considerable historical and national significance. They further alleged that they will not sell their share in the said property at any price, hence for justice equity and good conscience the petitioner should sell her share to them at proper price. In paragraph 5 of the written statement the opposite parties have averred that subject to their said requirement that the plaintiff should sell her share, they do not deny the petitioner's one-fourth share in the said property.