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2019 DIGILAW 1052 (GAU)

Rama Rani Das v. Rakhi Sen

2019-09-17

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Ms. M. Hore, learned counsel for the appellant. Also heard Mr. P. Deka, learned counsel for the respondents No.1 and 2. Although the learned counsel Mr. J.P. Chauhan, Mr. G. Saikia and Mr. A. Sarma had appeared for respondents No.3 and 4, but they are absent when the hearing of the matter is being taken up. 2. This is an appeal against the order dated 24.09.2012 of the Civil Judge, Tinsukia in Misc(J) 43/2012 arising out of TS No.43/2012. T.S. 43/2012 was instituted by the respondents No.1 and 2 being two of the daughters of the appellant, Rama Rani Das claiming right, title and interest over 2 share of the suit land on the basis of certain partition that took place within the family which also resulted in a registered will of the year 2009. According to the plaintiff respondent No. 1 and 2, the respondent No.4 being another daughter of appellant Rama Rani Das and her husband are taking steps for selling of the suit land to the respondent No.3 Prabir Dutta and in apprehension of such sale being effected, the suit land had been preferred for restraining them from proceeding with the sale of the suit land. 3. In the title suit, an injunction proceeding was also initiated resulting in Misc(j) Case No.43/12. By the order dated 24.09.2012 in Misc(J) 43/2012 a restrain order was passed by requiring the parties to maintain the status quo. The effect of the restrain order would be that the respondent No.4 would remain prohibited from selling of the suit land to the respondent No.3. Being aggrieved by the order dated 24.09.2012, the present appeal is preferred. 4. One of the stand taken by Ms. M. Hore, learned counsel for the appellant is that the registered will of 2009 had in the meantime been revoked by the appellant and therefore, there may not be any legal impediment for the respondent No.4 daughter to sell the land. We have no material before us to arrive at any such conclusion as regards the revocation of the registered will of 2009. Further we also take note of that the respondents No.1 and 2 and the respondent No.4 are the three daughters of the appellant who otherwise may have equal right over the suit land being their family property in a situation where the appellant has no other children. Further we also take note of that the respondents No.1 and 2 and the respondent No.4 are the three daughters of the appellant who otherwise may have equal right over the suit land being their family property in a situation where the appellant has no other children. Irrespective of the correctness of the statement as regards revocation of the registered will, a further question would also remain for adjudication as to whether the respondents No.1 and 2 would be entitled to their share of the land under the law of inheritance. 5. In the absence of any such determination, we do not find any prima facie case in favour of the appellant as well as in favour of the respondents No.3 and 4 as regards their entitlement to sell the suit land without such question being determined. In the absence of any such prima facie case, we do not find any reason in favour of the appellant to interfere with the order of injunction dated 24.09.2012. 6. It is further recorded in the order dated 24.09.2012 that at that relevant point of time, the appellant was 75 years and was suffering from old age problems resulting in mental degeneration. It is stated by Ms. M. Hore that there was no such proof of it, but at the same time we also do not find any proof of that she is not so suffering. 7. In any view of the matter, the prima facie case of the appellant is not dependant on her present physical and mental state, but on a prima facie determination of the right of all the daughters as regards to their entitlement of a share in the land or whether the suit land can be sold off by one of the daughter. 8. 8. In view of the above, we are of the view that an appropriate determination can be made only upon an adjudication of the suit and the restrain order dated 24.09.2012 clearly meets requirement of balance of convenience and irreparable loss that the respondents No.1 and 2 may suffer in the event of any conclusion being arrived in favour of the appellant and the respondents No.3 and 4 and considering the balance of convenience and irreparable loss that the respondents No.1 and 2 may suffer and also considering the prima facie case in their favour as regards their entitlement to a share in land in question, we are of the view that no interference is required in the order dated 24.09.2012. The appeal stands dismissed. 9. However, we make it clear that any observation made in this order shall not prevail upon the learned trial Court in TS 43/2012 and the same be decided on its own merit.