SARADA KALITA Vs. NISHAMANI KALITA

JUDGEMENT

(1.) Heard Ms. N Saikia, learned counsel for the appellant and Mr. B C Talukdar for the respondents.

(2.) The judgment and decree dated 21.04.2015 passed in T.S. No. 242/2007 by the learned Civil Judge No. 2, Kamrup (M) at Guwahati is under challenge. The respondents as plaintiffs filed a suit against the defendant/ appellant for declaration of their right, title and interest to the extent of 1/4th share over the suit properties, for partition and permanent injunction. The case of the plaintiffs/ respondents is that Anup Chandra Kalita was the husband of the defendant/ appellant No. 1. Anup Chandra Kalita died on 05.02.2005 leaving behind his wife, defendant/ appellant No. 1, two daughters, namely, Smt. Sneha Choudhury and Smt. Priyanka Kalita the defendants/ appellants No. 2 and 3 and the daughter-in-law and minor grandson, the plaintiffs/ respondent Nos. 1 and 2. The only son of Late Anup Chandra Kalita i.e. the husband of the plaintiff/ respondent no. 1 predeceased him on 10.12.2004 at the age of about 25 years. On the death of Anup Chandra Kalita, both movable and immovable properties devolved on the legal heirs of Late Anup Chandra Kalita. The said properties are intestate and as such the plaintiffs/ respondents are entitled for 1/4th share of the said properties left behind by Late Anup Chandra Kalita. Accordingly, the plaintiffs/ respondents sought for declaration of their right, title and interest to the extent 1/4th share over the properties left behind by Late Anup Chandra Kalita described in the schedules of the plaint and for partition. The schedule of suit properties are described hereinbelow.

(3.) The defendants/ appellants filed their written statement taking the defence that the plaintiff/ respondent No. 1 during life time of her husband Late Angshuman Kalita started residing separately from the family of the defendants/ appellants and as such, the plaintiffs/ respondents are not entitled to get any share over the landed property left by Late Anup Chandra Kalita. In respect of the Shivam Gas Agency, the stand of the defendants/ appellants is that initially the license issued for operation of the said Gas Agency stood in the name of Late Anup Chandra Kalita and on his death, the same was cancelled as there was no nominee in the said license of the Gas Agency. Thereafter, by investment of sufficient amount the defendant/ appellant No. 1 obtained separate license in her name and on the strength of the said license the defendant / appellant No. 1 is operating the said Gas Agency and as such the plaintiffs/ respondents are not entitled to get any share of the said Gas Agency. In respect of the statement in the plaint that the defendants / appellants sold the land standing in the name of Late Anup Chandra Kalita and received consideration amount of Rs. 60 Lakhs as mentioned in the schedule of the plaint was denied. At the time of death of Late Anup Chandra Kalita left a huge market liability and the same was liquidated after selling the landed property standing in the name of Late Anup Chandra Kalita. In fact the sale consideration amount was utilized for the liquidation of the liability left by Late Anup Chandra Kalita while renewing the licence of the Gas Agency. Accordingly, the defendants/ appellants sought for dismissal of the suit.