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2016 DIGILAW 871 (CAL)

Krishnasri Roy v. Manjusree Das

2016-11-11

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya, J. 1. This First Miscellaneous Appeal is directed against an order being no. 5 dated 18th April, 2016 passed by the learned Civil Judge, Senior Division, 1st Court at Alipore, in Title Suit No. 11 of 2016 at the instance of the defendants/appellants. 2. By the impugned order, the parties were directed to maintain status-quo with regard to the possession of the parties in the suit property till the disposal of the suit. Such interim order of status-quo was passed in a partition suit filed by the plaintiff against the defendants. The plaintiff is the daughter of Dr. Manna. The defendant no. 1 is the other daughter of Dr. Manna. The defendant nos. 2, 3, & 4 are the heirs of the pre-deceased son of Dr. Manna. 3. It is alleged that Dr. Manna has several properties which are mentioned in the schedule of the plaint. All the properties mentioned in the schedule of the plaint, excepting the property mentioned in the schedule (a), i.e. premises no.13, Krishna Chandra Dey Sarani, New Alipore, Calcutta - 700053 were owned and possessed by Dr. Manna. The property mentioned in schedule (a) being premises no. 13, Krishna Chandra Dey Sarani, New Alipore, Calcutta-700053 was alleged to have been purchased by Dr. Manna in the name of his wife. It is, further, alleged that the wife of Dr. Manna had no source of income and the said property was not only purchased by Dr. Manna by his own money, but a three storied building was construed by him with his own money. 4. Both Dr. Manna and his wife died. The plaintiff is claiming her share in the suit property, including the properties stood in the name of wife of Dr. Manna by way of inheritance. She claimed that she had 1/3rd share in all the suit properties. She further claimed that the defendant no. 1 being her sister had 1/3rd share in the suit properties. She also claimed that the defendant nos. 2, 3 & 4 being the heirs of the pre-deceased son of Dr. Manna was also inherited 1/3rd shares in all the suit properties. 5. She further claimed that the defendant no. 1 being her sister had 1/3rd share in the suit properties. She also claimed that the defendant nos. 2, 3 & 4 being the heirs of the pre-deceased son of Dr. Manna was also inherited 1/3rd shares in all the suit properties. 5. Since the parties did not feel convenience in enjoying the joint possession of the suit properties, the instant suit for partition was filed and in such a suit, such an interim injunction was prayed for restraining the defendants from transferring their shares in the suit property till the disposal of the suit. 6. The defendants appeared in the said suit and contested the same by filing objection denying the material allegations made out in the plaintiff's application for temporary injunction. 7. It is contended by the defendants that the plaintiff did not inherit any share in any of the properties mentioned in the schedule of the plaint. It was further claimed that Dr. Manna during his lifetime transferred all the properties excepting the property as mentioned in schedule (a) to his various near relations by executing different deeds. As such, they claimed that the plaintiff did not inherit any share in those properties. With regard to the property as mentioned in schedule (a) which stood in the name of wife of Dr. Manna, it was stated that the said property was purchased and/or acquired by the wife of Dr. Manna with her own money and Dr. Manna had no contribution either for purchasing the said property or for its development and/or construction of the building standing on the said property. Thus, they claimed the said property was the self acquired property of the wife of Dr. Manna and she during her lifetime executed a will bequeathing her property in favour of her husband and two grand-daughters. They further claimed that the plaintiff signed the said will as an attesting witness and the said will duly probated in a non-contentious proceeding. They, thus, claimed that the plaintiff has not acquired any right, title and interest in respect of any of the properties mentioned in the schedule of the plaint. 8. We have considered the submission of the learned counsel appearing for the parties and have also considered the materials on record. 9. They, thus, claimed that the plaintiff has not acquired any right, title and interest in respect of any of the properties mentioned in the schedule of the plaint. 8. We have considered the submission of the learned counsel appearing for the parties and have also considered the materials on record. 9. Though we are of the prima-facie view that the plaintiff has not acquired any interest of any of the properties as mentioned in the schedule of the plaint through Dr. Manna, as Dr. Manna during his lifetime transferred all his properties held by him, but we prima-facie find that some triable case has been made out by the plaintiff with regard to the acquisition of some interest in the property by way of inheritance through the wife of Dr. Manna in respect of (a) schedule property, as in the event the plaintiff ultimately succeeds in proving that the said property was the property of Dr. Manna which he purchased in the benami of his wife, then ultimately the Court will have no other alternative but to hold that by the will at best the share which she inherited from her husband could have been given to the beneficiaries under the will but the share which devolved upon the other heirs of Dr. Manna upon his death will remain unaffected and thereby the other heirs will inherit their share through Dr. Manna as per the Hindu Succession Act. 10. Such being our prima-facie view, we modify the interim order of injunction passed by the learned Trial Court and direct the parties to maintain status-quo with regard to their possession in the suit property being premises no. 13, Krishna Chandra Dey Sarani, Police Station - New Alipore, Kolkata - 700053 being mentioned as Item No. (a) under the schedule appended to the plaint till the disposal of the suit. 11. We, thus, clarify that the interim order of status-quo which was passed by the learned Trial Judge in respect of other properties stand vacated. 12. The appeal and the application both are disposed of.