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Dwipen Saikia v/s Jitumoni Saikia

    Civil Revision Petition No. 447 of 2010

    Decided On, 12 June 2015

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE HRISHIKESH ROY

    For the Petitioners: K. Bhattacharjee, Advocate. For the Respondent: D. Sarmah, B.K. Talukdar, Advocate (Absent).



Judgment Text

Judgement & Order (Oral):

1. Heard Mr. K. Bhattacharjee, the learned counsel appearing for the petitioners who are the defendants in the Title Suit No.242/2007, pending in the file of the learned Munsiff No.3, Guwahati. None is available to represent the respondent/plaintiff.

2. The respondent/plaintiff claiming to be the wife of Sachindra Nath Saikia, sought a decoration to 1/4th share of the suit land owned by the original predecessor Late Kirti Ram Saikia. The pattadar left behind four sons of which Sachindra Nath Saikia was the 3rd son and since the widow was deprived of her share of the family property at village North Guwahati in Sila Sindurighopa Mouza of Kamrup District, declaratory/corrective relief was sought by the plaintiff in the Title Suit No.242/2007.

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3. In their joint Written Statement (W.S.), the defendant Nos.1-8 on the other hand claimed that their brother/uncle Sachindra Nath Saikia was never married to the plaintiff and therefore her claim to the family property was repudiated by the defendants.

4. On the basis of the pleadings of the parties, the learned Trial Judge framed six issues including the 3rd issue on 'Whether the plaintiff is the wife of Late Sachindra Nath Saikia, if so, whether she is entitled to her share of 1/4th of the suit land'?

5. The issue so framed by the Court relates to the matrimonial status of the plaintiff and therefore the defendants filed a petition on 5.5.2010 (Annexure-5) under Section 151 of the C.P.C. to pray for keeping the suit in abeyance until the competent Family Court decides as to whether the plaintiff is the married wife of Late Sachindra Nath Saikia.

6. The defendants’ application was opposed by the plaintiff who furnished the death certificate of Late Sachindra Nath Saikia, the legal heir certificate issued by the D.C., Kamrup and the Voters List showing Late Sachindra Nath Saikia and the plaintiff as voters of the Jalukbari Assembly Constituency. She also claimed that her husband Sachindra Nath Saikia while serving as the Circle Superintendent of the Central Water Commission, during his lifetime, nominated the plaintiff as his wife for all his service benefits. On the basis of these documents, the plaintiff asserted that her legal status as the widowed wife of Late Sachindra Nath Saikia can’t be disputed and accordingly she applied for dismissal of the application filed by the defendants.

7. However the trial Judge observed that for declaration of title and interest to 1/4th share of the suit land, a separate issue as to whether the plaintiff is the wife of Late Sachindra Nath Saikia is unnecessary. With this observation, the defendants’ application was dismissed and the 3rd issue was recast to read as '3 Whether the plaintiff is entitled to the one fourth share of the suit land?' , by the impugned order dated 18.9.2010 (Annexure-7) in the Misc. (J) Case No.259/2010, by the learned Munsiff No.3, Guwahati.

8.1. Assailing the legality of the above order passed by the Trial Court, Mr. K. Bhattacharjee, the learned counsel refers to Section 7 of the Family Court’s Act, 1984 (hereinafter referred to as ‘the Family Court Act’) to argue that the matrimonial status in a Court proceeding relating to property, can only be decided by the jurisdictional Family Court and since a competent Court is available, the question as to whether the plaintiff is the widowed wife of Sachindra Nath Saikia should be decided by the Family Court and not by the Civil Court.

8.2. The defendants then contend that since the defendants had denied that the plaintiff is the wife of Late Sachindra Nath Saikia initially, the 3rd issue was correctly framed by the Court on 15.9.2007. Therefore Mr. Bhattacharjee argues that the necessary issue should not have been changed as it will mean that the plaintiff’s property claim will now be considered on the assumption that she is the legally married wife of Late Sachindra Nath Saikia.

9. The above contention of the defendant is un-rebutted by the respondent/plaintiff and today her engaged lawyers are absent from the Court.

10. The defendants in their W.S. have not only disputed the status of the plaintiff as married wife of Late Sachindra Nath Saikia but they also contend that their uncle/brother died unmarried and inteste. Moreover when he died on 31.8.1991, the plaintiff filed a Succession Case i.e. the S.C. Misc. Case No.361/1991, in respect of the debts and securities of the deceased Sachindra Nath Saikia. The defendants made their objection in the Succession Case and after witnesses were examined, the plaintiff after realising the weakness of her succession claim, withdrew the S.C. Misc. Case No.361/1991. Thereafter the defendants had filed the Succession Case No.86/1995 in the same Court where the plaintiff was impleaded as the Opposite Party and upon contest, the learned District Judge granted succession certificate in respect of the property of the deceased Sachindra Nath Saikia, in favour of the defendants. With this plea, the defendants denied the status of the plaintiff and strongly opposed her claim to a share of the family property of the original predecessor Late Kirti Ram Saikia.

11. What emerges from the above discussion is that the plaintiff’s claim for share of the family property is being challenged by the defendants primarily on the ground that the plaintiff was not married with the coparcener Sachindra Nath Saikia who died a bachelor. Therefore determination of the matrimonial status of the plaintiff will be necessary at the first instance, as her claim to the family property depends on whether she is the widowed wife of Late Sachindra Nath Saikia.

12. When the matrimonial status of the plaintiff is the key issue on which the case rests, a finding has to be given by the Court on her status and under the explanation to Section 7 of the Family Court Act, the Civil Court is not the competent forum to decide this issue as jurisdiction for such decision is conferred only on the Family Court. But in the present case, the learned Trial Judge by recasting the 3rd issue is trying to brush aside the most crucial issue in the case and this in my view has resulted in a perverse decision.

13. Because of the above discussion, I find sufficient merit in this Revision Petition and consequently the same is allowed by quashing the order dated 18.9.2010 (Annexure-7) in the Misc. (J) Case No.259/2010, rendered by the learned Munsiff No.3, Guwahati. Consequently in the Title Suit No.242/2007, the 3rd issue as it was originally framed by the Court on 15.9.2007 will now be decided. But since the matrimonial status of the plaintiff can only be decided by the Family Court, the learned Munsiff is directed to secure a decision from the Family Court at Guwahati on the issue i.e. whether the plaintiff is the wife of Late Sachindra Nath Saikia? After this issue is decided by the Family Court, the Title Suit No.242/2007 should be decided by the Civil Court on the basis of the finding of the Family Court.

14. As the lawyers for the respondent/plaintiff is not participating in this hearing, after the case records are transmitted by the learned Munsiff No.3, Guwahati, the Family Court will issue notice for appearance of the plaintiff and then decide the referred issue in accordance with the law. As the other side lawyers are absent, Mr. K. Bhattacharjee, the learned counsel undertakes to inform the concerned lawyers who represented the respondent/plaintiff on the earlier dates of the Family Court. Additionally, the Registry should send a copy of this order to the petitioner as she is not represented today. It is ordered accordingly.

15. With the above order, the case stands allowed, by leaving the parties to bear their respective costs. The Registry is accordingly directed to return the L.C.R. with a copy of this order to the learned Munsiff No.3, Guwahati.
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