Amina Khatoon And Ors vs Jahanara Begum And Ors

(1) Heard Mr. Sheeladitya, the learned Advocate for the appellants, Mr. N. Alam, learned Advocate for the respondent No.1 and proforma

respondent No. 3 and Mr. M. Das, the learned Advocate for the respondent No.2.

(2) By this appeal under Section 96 CPC, the appellants have challenged the judgment and decree dated 02.08.2004, passed by the learned Civil Judge

(Senior Division) No.3, Kamrup, Guwahati in Title Suit No. 194/1999, thereby partly decreeing the suit.

(3) Before entering into the merit of this appeal, it would be relevant to mention that on the submissions made by the learned counsel for the

respondent No.2, that the respondent No.2 had filed an appeal, being R.F.A. No. 140/2004 before this Court against the same impugned judgment, this

Court by order dated 08.08.2017, had directed this appeal to be listed for hearing along with the said RFA 140/2004. The Registry had put-up a note to

inform this Court that pursuant to the orders passed by this Court, the record of RFA No. 140/2004 was transferred for disposal before the Court of

the learned District Judge, Kamrup, Guwahati vide Memo No.HCXVI-2013/FA dated 13.09.2006. However, having seen that for last 12 years the

parties to the said appeal had not taken any steps in the said appeal and they are not aware of the present status and/or outcome of the said appeal,

this Court on finding that the LCR of TS No. 194/1999, relating to the said RFA No. 140/2004 was available in ‘lower court record’, by order

dated 02.02.2018, this appeal was directed to be listed for hearing, even at the risk of conflict of decision by both courts.

(4) The brief facts of the case is that the appellants along with the proforma respondent No.3, being sisters, had instituted TS No. 194/99 against their

mother and brother, inter-alia, for declaration that they are entitled to their share in the properties left behind by their father, namely, Late Syed Safed

Ali, who had died on 30.08.1998 and for direction to the respondents No.1 and 2 for rendition of accounts derived from rental income from the houses

let out in the property by their father for his maintenance, and for a decree of partition as per proportion allowable under the Mohammedan Law.

During the pendency of the suit, the proforma respondent No.3, who is the unmarried sister of the appellants withdrew from the suit and, as such, her

same was struck-out. It was stated that the appellants are married and are staying with their respective families.

(5) The respondents No.1 and 2 applied for succession certificate under Section 372 of the Succession Act, in respect of several bank accounts left

behind by the predecessor of the parties, being S.C. Case No. 565/1998, which was allowed by the learned District Judge, Kamrup, Guwahati, despite

objection filed by the appellants. The appellants had applied for revocation of the succession certificate, the result of which is stated to be not known

by the learned advocates for the parties. The respondents No.1 and 2 had contested the suit by taking usual pleas of the suit not being maintainable,

the suit being hit by principles of estoppel, waiver and acquiescence, etc., and they had denied that the appellants were joint owners of the properties

left behind by their said predecessor- in- interest. It was stated that the father of the appellants had opened two bank accounts jointly with the

appellant No.1 and proforma respondent No. 3, and on death of their father, the appellant No.1 and proforma respondent No. 3 had withdrawn the

balance lying in the said two bank accounts and, as such, the respondents No.1 and 2 took a stand that the said money be deposited to ascertain the

share of the appellants. It was prayed that the suit be dismissed.

(6) Upon pleadings, the learned trial court had framed and re-casted the issues for trial as follows:-

Whether the suit is maintainable in its present form?

Whether there is any cause of action, if not, whether the suit is liable to be dismissed for want of cause of action?

Whether the suit is properly valued and proper court fee has been paid thereon?

Whether the suit is hit by principles of estoppel, waiver and acquiescence?

Whether the plaintiff has right to claim the properties described in schedule A, B, C and D of the plaintiff, if not, whether the suit is liable to be

dismissed?

Whether the plaintiff No. 1 has withdrawn the entire amount from the joint account of Safed Ali and plaintiff No. 1 ?

To what relief the parties are deemed entitled to under the law and equity?

(7) In support of their respective case, the appellants had examined two witnesses, namely, Jahanara Begum (PW-1) and Rafique Rahman (PW-2)

and had exhibited the following documents, viz., Death Certificate of Late Syed Safed Ali (Ext.I), Photocopy of Mutation order (Ext.II), Photocopy of

Jamabandi (Ext.III). The respondents No.1 and 2 had examined two witnesses, namely, Nazrul islam (DW-1) and Safique Rahman (DW-2). Issues

No.1, 2, and 4 are usual plea taken in defence, as such, the learned trial court after discussing the materials on record, the said issues were answered

in favour of the appellants. In respect of issue No.3, it was held that two of the appellants herein were claiming their respective shares, and they had

valued one share at Rs.41,055/-, and court fees has been paid in respect of one share, as such, it was held that the appellants had to pay another court

fees of Rs.2,055.10 on Rs.41,055, being the share of both the appellants as the suit was governed by Section 7(iv)(B) of the Court Fees Act, on the

amount at which they value the relief sought.

(8) In respect of issue No.5, the learned trial court had held that Safed Ali had died leaving behind his wife (respondent No.1), one son (respondent

No.2) and three daughters (appellants and proforma respondent No.3), as such, under the Mohammedan Law, the respondent No.1 (wife) was

entitled to 1/8th share of the said property. The respondent No.2, being the son, was entitled to twice the share of his sisters, as such, the respondent

No.2 was entitled to 2/5th share of the said property and the three daughters of the deceased would each be entitled to 1/5th share of the said

property. It was also held that though the suit was for partition, but in Schedule-A(III) of the plaint, complete description of the suit property was not

there and that the schedule was vague and there was no mention about the Dag and Patta number or boundaries to identify the said land. It was held

that the Schedule-C property was claimed for proforma respondent No.3, but she had waived her claim over the said property. It was also held that

there was no clear description of the property mentioned in Column II to V of Schedule-B. It was also held that no documents were produced in

respect of Bank accounts described in Column (i)(a) and (ii)(b) to (d) of Schedule-B. Hence, it was held that no decree could be passed in respect of

properties mentioned in Schedule-A(iii), Schedule-B and Schedule-C.

(9) In respect of issue No.6, it was held that the respondents No.1 and 2 had alleged that the appellant No.1 had withdrawn money from their

father’s account and the PW1 had admitted in her cross examination that she had withdrawn money from Bank A/c. No.27682, but for treatment

of her father, as such, it was held that as the respondents No.1 and 2 could not prove what amount was deposited by their father, as such, the

appellants could not be held liable for withdrawal of the said amount.

(10) In respect of issue No.7, the learned trial court was of the view that it appeared that the property mentioned in Schedule-D was a part of

Schedule-A property. It was held that as per Ext.3, the land described in Column-II of Schedule-A was mutated in the name of both parties as heirs of

Late Syed Safed Ali. However, mutation order, being only a compared copy was held not liable to be considered. However, it was held that the

parties were entitled to get share in property described in Schedule-A(II), left behind by Syed Safed Ali in the following manner, viz., the respondent

No.1 (wife) was entitled to 1/8th share of the said property. The respondent No.2, being the son, was entitled to twice the share of his sisters, as such,

the respondent No.2 was entitled to 2/5th share of the said property and the three daughters of the deceased would each be entitled to 1/5th share of

the said property. Hence, the appellants were held to be entitled to decree of partition in respect of their 1/5th share of the Schedule-A(II) property

after giving 1/8th share of the said property to the respondent No.1.

(11) Arguing against the said judgment and preliminary decree, the learned Advocate for the appellants state that although the respondents No.1 and 2

did not take any defence that the appellants were not the daughters and legal heirs of Late Syed Safed Ali, yet, no reason was assigned by the learned

trial court to refuse decree in respect of all the properties described in Schedules-A to D of the plaint. It is submitted that the learned trial court has

misread and misconstrued the pleadings and evidence and had arrived at a totally misconceived conclusion, and has pressed all the grounds of appeal.

(12) The learned advocate for the respondents No.1 and 3 have supported the case of the appellants. However, per contra, the learned advocate for

the respondent No.2 has made his submissions in favour of the impugned judgment and preliminary decree by submitting that except producing a

photocopy of the mutation order, and certified copy of jamabandi, no document was proved to establish the case of the appellants and moreover, none

of the landed property was described to identify the land with definite boundaries.

Hence, the appellants had miserably failed to prove their case.

(13) Based on the submissions made by the learned advocates for the parties, the points of determination arising in this appeal are as follows:-

a. Whether a non- party to the suit can be arrayed as proforma respondent in this appeal? If no, whether the name of the proforma respondent is liable

to be struck-off?

b. Whether the judgment and decree requires interference by this Court?

(14) In respect of the point of determination No.(a), no leave was taken in this regard and no objection has been raised by the respondents and

proforma respondents. As such, as the said issue has come to the notice of this Court at the time of preparing the judgment. It is seen that the suit had

been partly decreed for partition in respect of the property described in Schedule-A-(ii). The respondents No.1 and 2 have not objected to the said

decree. Moreover, the proforma respondent has also entered appearance in this appeal through her counsel and has not disputed the decree. It is seen

from the LCR that by filing petition No. 1679/2001 dated 05.07.2001, the proforma respondent No.3, namely Roushanara Begum had prayed before

the learned trial court to withdraw her name as plaintiff No.3. Accordingly, upon hearing the learned Advocates for the parties, the learned trial Court

had struck-off the name of proforma respondent No.3. As a result, by an endorsement made in the cause title of the plaint, the name of the proforma

respondent No.3 was struck-off as per order dated 05.07.2001 and accordingly, the decree does not contain the name of the proforma respondent in

the array of parties. Under the circumstances, a question has arisen whether a non- party to the suit can be arrayed as proforma respondent in this

appeal. In this connection, it is seen that the appellants had not taken any leave to implead the proforma respondent No.3 in this appeal. Hence, though

this Court is of the opinion that the proforma respondent No.3 could not have been impleaded in this appeal, yet it is seen that the proforma respondent

No.3 is also a beneficiary of the decree for partition of the property described in Schedule-A(ii). As stated above, although the proforma respondent is

aware of the striking out of her name, yet she has participated in this appeal without objecting to the maintainability of this appeal and she has not

challenged the preliminary decree. Therefore, this Court does not intend to interfere with the decree on the ground of non- joinder or necessary

parties, as such, there appears to be no necessity to invoke the provisions of proviso of Rule 2 of Order XLI, to put the parties to notice of the said

point. As a result, this Court is constrained to allow the name of the profroma respondent to remain in array of parties in this appeal. Hence, this Court

is constrained to hold in respect of point of determination No. (a) that the non- party to the suit had waived her right to object to her impleading in

appeal and as the proforma respondent No. 3 is having duly represented by her counsel in this appeal, she is deemed to have given her acquiescence

to remain as proforma respondent No.3 in this appeal, as such, it would not be appropriate to strike out the name of the proforma respondent in this

appeal. In this respect, this Court is inclined to observe, that this opinion of this Court is passed under the unique facts of this case and is not intended

to be relied upon and/or cited as a binding precedent, but this is done by invoking the provisions of Order XLI Rule 33 CPC to do complete justice to

the parties.

(15) The point of determination No.(b) is taken up now. In the opinion of this Court, the issues No.1 is a unnecessary issue because there is no

pleading regarding any specific defect in form of plaint, as such, the issue is highly vague. Similarly, issue No.2 is also perfunctory because if there is

no cause of action for the suit, the trial court could have taken up this issue and decided the same by invoking the provisions of Order VII Rule 11(a)

CPC. As regards issue No.3, it appears that the decision of the learned trial court to direct the appellant to pay additional court fees has been

accepted by the appellant by paying the additional court fees not only in the suit but also in this appeal. Moreover, no ground of appeal on imposition of

court fees has been raised in the present Memo of Appeal. Issue No.4 relates to whether the suit was hit by the principles of estoppel, waiver and

acquiescence and in this regard, the decision  of the learned trial court has not been challenged by the respondents No.1 and 2 and moreover,

there is no evidence on record how and why the principles of estoppel, waiver and acquiescence are attracted in the suit. Hence, in view of the

discussions above, there is no infirmity in the decision on issues No.1, 2, 3 and 4 as decided by the learned trial court.

(16) The decision of the learned trial court on issue No.5 is revisited again. It is seen that the learned trial court had held that though the suit was for

partition, but in Schedule-A(III) of the plaint, complete description of the suit property was not there and that the schedule was vague and there was

no mention about the Dag and Patta number or boundaries to identify the said land. On a perusal of the plaint, this Court must concur with the said

finding of the learned trial court. The description of the land is given in the following paragraph.

(17) As per the plaint, the Schedule-A land is described as follows â€

                i.      Land measuring 1 katha covered by Dag No. 3011 of K.P. Patta No. 502 of Village/ Sahar

Ulubari under Ulubari Mouza with incomplete three storied R.C.C. building of which ground floor is rented out to various tenant and the first floor is

occupied by the defendants as their residence.

 ii.       Land measuring 1 katha covered by Dag No. 2768 of K.P. Patta No. 99 of village Sahar- Ulubari in Ulubari Mouza

with a Assam Type Residential House rented out to three tenants.

           iii.     Land measuring 1 katha covered by Dag No. __ of K.P. Patta No. __ of Village sahar Ulubari under

Ulubari Mouza with Assam Type House near Sun Beam School which is rented out to the nine different tenants.

(18) From the LCR it appears that the appellants through PW-1 had exhibited jamabandi in respect of Patta No. 99, Dag No. 2768, containing land

measuring 2.68 Ares (equivalent to 1 katha). Thus, the said documentary evidence is in respect of property described in Schedule-A(ii) alone. The

learned trial court had rightly held that the Schedule-C property was claimed for proforma respondent No.3 in view of the specific statement made in

paragraph 13 of the plaint. Moreover, as the proforma respondent No.3 had withdrawn from the suit, it was rightly held that she had waived her claim

over the said property. On a perusal of Column (ii) to (v) of Schedule-B of the plaint, there is no doubt that the learned trial court had rightly held that

there was no clear description of the property mentioned therein. It is also seen from the list of exhibits enumerated herein before, there can be no

doubt about the correctness of the finding recorded by the learned trial court that no documents were produced in respect of Bank accounts described

in Column (i)(a) and (ii)(b) to (d) of Schedule-B. Hence, the decision of the learned trial court that no decree could be passed in respect of properties

mentioned in Schedule-A(iii), Schedule-B and Schedule-C is liable to be upheld as there no evidence contrary to the finding recorded by the learned

trial court. Moreover, while deciding issue No.7, the learned trial court had held that the property mentioned in Schedule-D was a part of Schedule-A

property, of which there can be no doubt because the existence of RCC house appears only in respect of land and house described in Schedule-A(i)

of the plaint and the houses described in Schedule-A(ii) and A(iii) are Assam Type houses. Thus, there is no infirmity in the said finding. It is seen that

no document has been exhibited in respect of property described in Schedule-A(i) of the plaint. In this regard, the learned trial court has discarded

Ext.3 on the ground that the appellants had submitted a compared copy of mutation order passed in Case No. 353/98, and the said finding could not be

successfully assailed by the appellants because as per the Evidence- on â€" affidavit of PW-1 sworn and filed on 14.08.2002, Ext.II and Ext.III are

photocopies, but in course of discussion on issue No.7 the learned trial court has mentioned Ext.III as Certified copy of jamabandi, which appears to

be inconsistent with the statement made in para-20 of the evidence- onaffidavit by PW-1. On a perusal of the LCR, it is seen that photocopied

documents are marked as Ext.II and Ext.III. Moreover, the learned trial court is correct in recording a finding in respect of issue No.6 because in her

cross examination, PW-1 had admitted withdrawing of money from A/c. No. 27687 and the PW-1 had also admitted that she had not submitted any

papers of bank accounts shown in Schedule-B of the plaint. Thus, there is no infirmity in the finding recorded in respect of issues No.5, 6 and 7. It is

seen that on the basis of entries made in jamabandi (Ext.III), the suit was decreed only in respect of property described in Schedule-A-(ii), as the

names of the appellants are found to be mentioned therein. Although the said Ext.III is a photocopy, but the said finding is not challenged by the

respondents No.1 and 2.

(19) It is seen that against the decree partition passed in respect of property described in Schedule-A-(ii) has not been assailed by the respondents

No.1 and 2. In the considered opinion of this Court, as the name of the proforma respondent No.3 had been struck-off in the plaint, there can be no

effective partition in the absence of the proforma respondent No.3 as a proper and necessary party to the suit. Nonetheless, in the absence of any

challenge to the said decree, this Court is not inclined to interfere with the decree passed in favour of the appellants in respect of property described in

Schedule-A-(ii) only. Thus, the said part of the finding in respect of issue No.7 is entitled to be affirmed.

(20) Accordingly, this Court concurs with the finding recorded by the learned trial court that under the Mohammedan Law, the respondent No.1 (wife

of Late Syed Safed Ali) was entitled to 1/8th share of the property described in Schedule-B(ii), which must be separated first. Out of the property

remaining after culling out the share of the respondent No.1, the respondent No.2, being the son of Late Syed Safed Ali would be entitled to twice the

share of his sisters, as such, the respondent No.2 was entitled to 2/5th share of the said property and the two appellants as well as the proforma

respondent No.3, being the three daughters of the deceased would each be entitled to 1/5th share of the said property described in Schedule-A(ii) of

the plaint. Thus, the preliminary decree passed in respect of the said property described in Schedule-A(ii) of the plaint stands affirmed. The point of

determination No. (6), is therefore, answered in the negative and against the appellants by holding that the impugned judgment and decree dated

02.08.2004, passed by the learned Civil Judge, (Senior Division) No. 3, Kamrup, Guwahati does not warrant any interference from this Court. The

same stands affirmed.

(21) As a result, this appeal fails and the same is dismissed with cost.

(22) Let a decree be prepared.

(23) Return back the LCR.

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