HEMANTA DAS Vs. KIRAN HAZARIKA

JUDGEMENT

(1.) This appeal by the heirs of the original plaintiff is directed against the judgment and decree dated 18.8.2000 passed by the learned Civil Judge, (Senior Division) No. 1, Kamrup at Guwahati in Title Appeal No. 47/1996 allowing the appeal preferred by the defendant Nos. 1 and 2 and by setting aside the judgment and decree dated 6.9.1996 passed by the learned Munsiff No. 3, Kamrup at Guwahati in Title Suit No. 77/1988 whereby and wherunder the plaintiff's suit was decreed.

(2.) The predecessor -in -interest of the present appellants instituted Title Suit No. 181/1985 in the Court of the learned Munsiff, Guwahati, which in due course of time was transferred to the court of the learned Munsiff No. 3, and was renumbered as Title Suit No. 77/1988. The pleaded case of the plaintiff in the plaint is that her father Sachi Bhusan Hazarika died in the year 1949 leaving behind two wives namely; Golmai and Hares -wari. While the defendant Nos. 1 and 2 are the sons of Sachi Bhusan Hazarika through the first wife Golmai, the original plaintiff and the defendant Nos. 3, 4 and 5 are the sons and daughters of Sachi Bhusan Hazarika through the second wife Hareswari. During pendency of the suit the original plaintiff Bijuli expired and hence the present appellants were substituted in place of the original plaintiff. According to the plaintiff, Sachi Bhusan Hazarika was the owner of 3 kathas 7 lechas of land out of which the defendant Nos. 1, 2, 3 and 4 sold 1 katha 5 lechas of land to Sushila @ Surila Devi, proforma defendant No. 6 by registered deed of sale dated 18.2.1976, leaving 1 katha 18 lechas to be inherited by the sons and daughters of Sachi Bhusan Hazarika through the two wives in equal proportion. The plaintiff has claimed 1/5th share of the land measuring 1 katha 18 lechas being one of the daughters of Sachi Bhusan Hazarika and as Hiran, the second son of Sachi Bhusan Hazarika through Golmai during pendency of the suit expired unmarried.

(3.) The suit was contested by the defendant Nos. 1 and 2 by filing a joint written statement. A written statement was also filed by the defendant Nos. 3, 4 and 5 supporting the claim of the plaintiff. The defendant No. 6 however, did not contest the suit. The defendant Nos. 1 and 2 in the written statement has taken the stand that as Sachi Bhusan Hazarika died prior to the Hindu Succession Act, 1956 (in short the 1956 Act) came into force neither Hareswari, one of the wives nor Bijuli the original plaintiff would inherit any property left by Sachi Bhusan Hazarika. It has also been pleaded that Bijuli having been married in the year 1954 and being not in possession of any land originally belonged to Sachi Bhusan Hazarika, she is not entitled to the benefit of Section 14 of the 1956 Act. It has, however, been admitted that Bijuli, the original plaintiff had a limited ownership over the land of Sachi Bhusan Hazarika without any right to claim partition and inheritance.