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2019 DIGILAW 948 (GAU)

Sarada Kalita v. Nishamani Kalita

2019-08-27

PRASANTA KUMAR DEKA

body2019
JUDGMENT : Prasanta Kumar Deka, J. 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 here in below. Schedule-A (a) Land measuring 3 K, 19 Lechas covered by Dag No. 255 of Patta No. 2 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup. (b) Land measuring 2 K, 4 L. covered by Dag No. 256 of K.P. Patta No. 112 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup. (c) Land measuring 1 K, 7 Lessas covered by Dag No. 428 of K.P. Patta No. 316 of village Kahikuchi, Mouza Dakhin rani, District- Kamrup (d) Land measuring more or less 1 Katha, excluding the land covered by RCC building of Dag No. 391 (o)/522 (N) of K.P. Patta No. 22 of village Maligaon, Mouza Jalukbari, district- Kamrup Schedule-B (a) One four storied RCC building (ground+third) containing 1364 sq. ft. ft. in each floor assessed as holding No. 716 of Ward No. V of Guwahati Municipal Corporation in the name of Anup Chandra Kalita standing over the land of Dag No. 391 (O)/522(N) of patta No. 22 of village Maligaon, Mouza-Jalukbari, dist- Kamrup. (b) One Assam Type house consisting of ten rooms standing over the land of dag No. 428 of Patta No. 316 of Kahikuchi, Mouza Dakhinrani, District- Kamrup Schedule-C A Gas Agency under the name and style of Shivam Gas Agency at Maligaon, Guwahati under license No. EXPLO-G/EC/AS/06/247G18896 Tread licence No. 5270/12/27; and establishment licence No. SEA/CE/09/121. The monthly income of the said gas agency is at Rs. 1,44,000/-. After deducting the necessary expenses for the said gas agency. The monthly expenses agency is at about Rs. 75,283/-/ The net profit from the said Gas Agency per month is at Rs. 68,717/-. Schedule-D The sale proceeds of Rs. 60 Lakh received by the defendant No. 1 from the purchasers of 5 Bighas of the land covered by dag No. 66 of K.P. Patta No. 15 of village Kahikuchi under Dakhinrani mouza, district-Kamrup. 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. 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. 4. On the basis of pleadings of the parties, the trial court framed the following issue: (i) Whether there is a cause of action for the suit? (ii) Whether the suit is maintainable in present form and manner? (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) Whether the suit is barred by law of limitation? (v) Whether Anup Chandra Kalita was the owner at the time of his death and left behind the properties mentioned in schedule of the plaint? (vi) Whether the plaintiffs are entitled to partition of share of the properties left by Late Anup Chandra Kalita? (vii) To what other relief/ reliefs the parties are entitled to get? 5. The plaintiff side adduced evidence of four witnesses out of which the PW1 is the plaintiff/ respondent No. 1 and the PW2, Dipak Kalita is the elder brother of Late Anup Chandra Kalita. The defendant/ appellant No. 1 is the only witness of the defendant side who deposed as DW1. The learned trial court decreed the suit in favour of the plaintiffs/ respondents vide judgment and decree dated 21.04.2015. 6. Ms. Saikia submits that the court below was wrong in allowing the decree for partition in respect of schedule A(c) property and also in allowing the 1/4th share over the schedule D property i.e. the amount received as the sale consideration by the defendant/ appellant No. 1. In this respect it is submitted by Ms. Saikia that the schedule A (c) property was gifted to the defendant/ appellant No. 1 and as such it ought not to have been considered in the hotchpotch for the partition. In this respect it is submitted by Ms. Saikia that the schedule A (c) property was gifted to the defendant/ appellant No. 1 and as such it ought not to have been considered in the hotchpotch for the partition. At the time of death of Late Anup Chandra Kalita he had a substantial amount of market liabilities and in order to liquidate the said liabilities and to run the Gas Agency, the land was sold and out of the sale consideration the liabilities were liquidated. Assailing the finding of the learned trial court that the schedule D properties pertaining to 5 Bighas covered by Dag No. 66 of K.P. Patta No. 15 of village Kahikuchi was admittedly owned by Late Anup Chandra Kalita which was sold in order to liquidate the liabilities left behind by Late Anup Chandra Kalita, the court below came to the finding that there was no evidentiary proof placed on record by the defendants/ appellants in order to prove the said liability is totally a wrong finding. The learned court below failed to take notice that in a separate Misc. Case in the said suit all the documents showing the liabilities left behind by Late Anup Chandra Kalita were put on record. But the learned court below did not consider the same as owing to the default on the part of the conducting counsel the said documents could not be exhibited. Accordingly, it is submitted that in order to bring on record the said documentary evidence the appellant had filed an application under Order 41 Rule 27 of the CPC. Ms. Saikia submits that the said finding in issue No. 5 and 6 are perverse and as such the judgment and decree of the trial court requires to be interfered, set aside and remanded allowing the application under Order 41 Rule 27 of the CPC. 7. Mr. Talukdar on the other hand submits that the court below rightly passed the judgment and decree inasmuch as the plaintiffs/ respondents are the Class-1 legal heirs under Hindu Succession Act and as such they are entitled for 1/4th share over the suit properties described in the schedules of the plaint. There is no specific denial in respect of the total sale consideration mentioned in the schedule D of the plaint and as such the plaintiffs are entitled for 1/4th share of the total sale consideration. There is no specific denial in respect of the total sale consideration mentioned in the schedule D of the plaint and as such the plaintiffs are entitled for 1/4th share of the total sale consideration. Regarding the liabilities left behind by Late Anup Chandra Kalita at the time of death there is no specific pleadings thereby showing the different heads on which the defendant/ appellant had made the payment against the liabilities. The documents which the defendants/ appellants wanted to rely were never pleaded. Under such circumstances the same cannot be brought on record in the form of evidence by allowing the application under Order 41 Rule 27 of the CPC. Accordingly, he sought for dismissal of the suit. 8. I have given due consideration to the submissions made by the learned counsel. Admittedly, the parties to the suit are class-1 legal heirs of Late Anup Chandra Kalita and all of them had jointly inherited the properties left behind by Late Anup Chandra Kalita. The plaintiffs/ respondents sought for 1/4th share over the properties left behind by Late Anup Chandra Kalita. From the submission of Ms. Saikia the defendants/ appellants are aggrieved because of the fact that the suit schedule A(c) land was gifted to the defendant/ appellant No. 1 and as such the same ought not to have been decreed for partition. The other contention is in respect of the liabilities which the defendant/ appellant No. 1 had liquidated after the death of her husband which was not taken into consideration by the court below. Accordingly, the point for determination in this appeal is: Whether the learned court below failed to appreciate the evidence on record while deciding issue Nos. 5 and 6? 9. In the plaint there is a specific pleading that the defendant / appellant No. 1 received the entire amount of Rs. 60 Lakhs by way of selling land covered by Dag No. 66 of K.P. Patta No. 15 of village- Kahikuchi under Dakhinrani Mouza in the district of Kamrup. As against the said pleadings there is a denial to that effect but regarding the liabilities left behind by Anup Chandra Kalita it is pleaded in the written statement that at the time of death of the husband of the defendant/ appellant No. 1 there was a huge liability which was liquidated by disposing of the landed property left behind by Late Anup Chandra Kalita. The said sale consideration amount received by the defendant/ appellant No. 1 was utilized for liquidation of the liabilities left behind by Late Anup Chandra Kalita, but the said liability was not proved nor the amount of sale consideration received was pleaded or proved by the defendants/ appellants as required under Order VIII Rule 4 of the CPC. So as it is pleaded in the plaint that the defendant appellant No. 1 utilised the total sale consideration and there being no pleading as to the amount received in the sale transaction which is an admitted fact accordingly the denial of receipt of Rs. 60 Lachs is an evasive denial. The sale deeds were executed by the defendant appellant No. 1 and as such the receipt of total sale consideration is a special knowledge of the defendant appellant No. 1 and U/s 106 of the Evidence Act burden lies upon the defendant appellant No. 1 to disclose such special knowledge and prove. Nondisclosure itself leads to the presumption that if disclosed, same would be unfavourable to defendant appellant no. 1 and the presumption has to be drawn U/s 114 of Evidence Act against the appellant No. 1 that she received Rs. 60 Lakhs as the sale consideration as mentioned in the Schedule D of the plaint. 10. Ms. Saikia submitted that the plaintiffs respondents failed to prove that defendant appellant No. 1 received Rs. 60 Lakhs as the sale consideration. In my opinion Ms. Saikia is correct but the nature of pleadings of the defendants does not show that the defendants were successful in putting the onus on the plaintiffs as on one hand the fact of sale of schedule D property is admitted and it is quite natural that the seller is fully aware of the sale consideration so there ought to have the pleading as to what amount of sale consideration the defendant appellant No. 1 received. As such the presumption goes against the defendants. 11. As such the presumption goes against the defendants. 11. The learned court below held that the schedule properties admittedly belonged to Late Anup Chandra Kalita and on his death same were inherited by all the legal heirs including plaintiffs/ respondents to the extent of a stripe of 1/4th of the said land and as alienation of the said schedule properties was due to liquidation of the liability and there being no proof of the said liability nor its liquidation the schedule D property is the joint property of the parties to the suit and as such same is subject to partition. Whether the said finding of the trial court can be accepted or not? The law as applicable is that where a co-owner by availing himself of his position gains any advantage in derogation of the rights of the other co-owners and such owner representing all the co-owners gain any advantage, the inference drawn is that the said owner must hold the said advantage for the benefit of all co-owners but subject to repayment by the other co-owners to the extent of the share of the lawful liability to the said owner in order to indemnify the expenses incurred by liquidation of the said liability in order to gain joint advantage by all the co-owners. The defendant appellant No. 1 in her written statement claims the Gas Agency to be her self acquired property as the license stands in her name. The court below also held as per the claim made by her. There is no cross objection by the respondents in this appeal nor any submissions are made to that effect by the learned counsel for respondents. So, I have no other alternative but to accept the said finding as this is a partition suit amongst the family members. But, if that view is accepted then in my considered opinion the other co-owners are not required to share the liability so liquidated by the defendant appellant No. 1. For the said reason I am not inclined to interfere with the findings of the court below. 12. The defendants/ appellants failed to prove as to what extent the defendant/ appellant No. 1 liquidated the specific amount against the said liability. For the said reason I am not inclined to interfere with the findings of the court below. 12. The defendants/ appellants failed to prove as to what extent the defendant/ appellant No. 1 liquidated the specific amount against the said liability. In the appeal the appellants filed an application under Order 41 Rule 27 of the CPC to allow them to adduce additional evidence in order to prove the liabilities on the following grounds: That the applicants/ appellants further state that although all the papers regarding liability to be paid by the deceased Anup Ch Kalita was handed over to the counsel of the appellants conducting the Title Suit being T.S. No. 242/2007 it seems the documents relating to the liabilities did not filed in the T.S. No. 242/2007 instead some of the documents relating to liability was filed in the Misc (J) Case no. 54/2008 (application under Section 19 of Hindu Adoption and Maintenance Act read with Section 151 of the CPC), Misc (J) Case No. 123/2007 (application under order 39 rule 1 &2 read with section 151 of the CPC), and in Misc (J) Case No. 74/2008 case knowingly or unknowingly resulting to failure of justice. Since the documents has not been filed in appropriate manner it is needless to say that the learned court below could not take into account of all those important documents relating to the liabilities accrued to late husband/father of the applicants/appellants. As such the appellants humbly prays that as provided under order XLI Rule 27 & 28 of the Code of Civil Procedure 1908 or the Appellants may kindly be allowed to submit the relevant documents regarding liabilities of late husband/father of appellants. 13. Ms. Saikia submits that the documents sought to be introduced by way of additional evidence are more or less public documents in nature which does not require any proof and as such the application under Order 41 Rule 27 of the CPC may be allowed. In support of her said contention Ms. Saikia relies on Y.P. Sudhanva Reddy and Others. Vs. Chairman and Managing Director, Karnataka Milk Federation and Ors., 2018) 6 SCC 574. She also relies on Uttaradi Mutt Vs. Raghavendra Swamy Mutt, (2018) 10 SCC 484 and Chandreshwar Bhuthnath Devasthan Vs. Baboy Matiram Varenkar, (2018) 12 SCC 548 . In support of her said contention Ms. Saikia relies on Y.P. Sudhanva Reddy and Others. Vs. Chairman and Managing Director, Karnataka Milk Federation and Ors., 2018) 6 SCC 574. She also relies on Uttaradi Mutt Vs. Raghavendra Swamy Mutt, (2018) 10 SCC 484 and Chandreshwar Bhuthnath Devasthan Vs. Baboy Matiram Varenkar, (2018) 12 SCC 548 . The said decisions are not relevant in the present case in hand inasmuch as the said decisions discussed the manner in which appeal is to be decided if an application under Order 41 Rule 27 CPC is allowed. 14. Mr. Talukdar on the other hand submits that there are no specific grounds mentioned in the said application under Order 41 Rule 27 of the CPC. Mere filing of the said documents in incidental proceeding in a suit cannot be taken into consideration in an application under Order 41 Rule 27 of the CPC. The said provision specifically stipulates the conditions and only on satisfaction of the said conditions the court can allow an application for additional evidence. In support of his contention Mr. Talukdar relies on Union of India Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 and submits that party guilty of remissness in not producing evidence in trial court cannot be allowed to produce in the appellate court unless a satisfactory reason for non-production of the evidence in trial court is mentioned in the application under Order 41 Rule 27 of the CPC. Not even a single ground is mentioned in the said application and as such liable to be dismissed. 15. The said submissions of the learned counsel are considered. Order 41 Rule 27 of the CPC stipulates as follows: 27. Not even a single ground is mentioned in the said application and as such liable to be dismissed. 15. The said submissions of the learned counsel are considered. Order 41 Rule 27 of the CPC stipulates as follows: 27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 16. The opening sentence of the said provision mandates that parties to an appeal shall not be entitled to produce additional evidence in the appellate court but if the court from whose decree the appeal is preferred refused to admit the evidence which ought to have been admitted or such evidence was not within the knowledge of the parties or could not after exercise of due diligence produced by the party at the time when the decree appealed against was passed or when the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, then the appellate court has the jurisdiction to allow such additional evidence. In my opinion none of the requisite grounds are mentioned in the application under Order 41 Rule 27 of the CPC if the application the contents of which are reproduced above. 17. I have perused the written statement but I do not find any reference made in the said written statement in respect of the document which the appellants wanted to adduce as additional evidence. 17. I have perused the written statement but I do not find any reference made in the said written statement in respect of the document which the appellants wanted to adduce as additional evidence. Order VIII Rule 1A of the CPC stipulates that where the defendants based his defence on a document or relies upon any document in his possession or power in support of his defence he must enter such document in a list and must produce it in the court when the written statement is filed by him. Where such document ought to be produced in the court by the defendants but not so produced cannot without the leave of the court be received in evidence on behalf of the defendants on the hearing of the suit. In (2018) 6 SCC 574 (Supra) the Hon ble Apex Court held as follows: 25. The learned counsel for the appellants, however, argued that there was noncompliance of the provisions of Order 41 Rule 27 of the Code and hence the application filed by the respondent ought not to have been allowed by the High Court. The submission, in our opinion, has no merit for the following reasons: 25.1. In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/ appeal. 25.2. Second, these documents did not require any proof being public documents in nature. 25.3. Third, the respondent had already made reference of these documents and laid foundation in the pleadings. 25.4. Lastly, the first appellate court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/ appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly. 18. From the cause/ causes shown in the petition under Order 41 Rule 27 of the CPC it can be culled out that the said documents were not filed in the suit knowingly or unknowingly and admittedly there is default on the conducting counsel. 18. From the cause/ causes shown in the petition under Order 41 Rule 27 of the CPC it can be culled out that the said documents were not filed in the suit knowingly or unknowingly and admittedly there is default on the conducting counsel. From the said grounds/ causes, in my opinion the appellants failed to satisfy the conditions as stipulated under Order 41 Rule 27 of the CPC. So far the cause in not relying the said documents at the time of filing their written statement or at the time adducing evidence does not even fall within the term for any other substantial cause as stipulated under Order 41 Rule 27 Sub rule 1 (b). In (2012) 8 SCC 148 (supra) the Hon ble Apex Court explains the term substantial cause within the ambit and scope of Order 41 Rule 27 as follows: 39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot be have it admitted in appeal. (vide State of U.P. v. Manbodhan Lal Srivastava and S. rajagopal v. C.M. Armugam.) 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a substantial cause within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words for any other substantial cause must be read with the word requires in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment 19. From the aforesaid discussions I am of the opinion that the defendants/ appellants failed to substantiate the grounds as to why they failed to produce the said documents nor as to why they failed to rely the said documents in the pleadings. Further keeping in view the claims made by the defendant appellant No. 1 in respect of Schedule C property consisting of the Gas Agency and the discussion made hereinabove, in my opinion such documents mentioned in the petition under Order 41 Rule 27 CPC are also not required for any substantial cause and as such the petition for additional evidence is rejected. 20. As hereinabove stated the trial court came to the finding that the defendants/ appellants failed to substantiate and prove the liability so liquidated and accordingly the plaintiffs/ respondents are entitled to a share in the property shown in the schedule D. In my considered opinion as there is no specific denial in the written statement and there is an admission that sale consideration amount received by the defendant/ appellant No. 1 was utilised towards liquidation of the liabilities left by Late Anup Chandra Kalita and from the written statement itself the said liabilities was incurred in respect of M/s Shivam Gas Agency which is reiterated in the evidence of defendant/ appellant No. 1 as DW1, accordingly, I am of the view that on the basis of the sale consideration as described in the schedule D of the plaint, the defendant / appellant No. 1 had gained advantage by taking the license of the Gas Agency in her name after liquidating the liabilities left by Late Anup Chandra Kalita. There is no pleading to the effect that the defendant appellant no. There is no pleading to the effect that the defendant appellant no. 1 had informed about the liabilities to the plaintiffs respondents and as such it would be proper to hold that the defendant appellant No. 1 was not holding the property on behalf of all the co-owners including the plaintiffs/ respondents. The learned court below held that as the license of the Gas Agency as described in schedule C is standing in the name of the defendant/ appellant No. 1 as the self acquired property of said defendant / appellant No. 1 as such the plaintiffs/ respondents are not entitled any share therein requires no interference but for the advantage gained by the defendant / appellant No. 1 the plaintiffs/ defendants along with defendants/ appellant Nos. 2 and 3 are entitled to their respective shares to the extent of 1/4th against the sale proceeds of the schedule D properties which is held to be Rs. 60 Lakhs from the discussions hereinabove stated. 21. The contention of Ms. Saikia that the plaintiffs/ respondents are not entitled for any share over the land measuring 1 Katha 7 Lechas covered by Dag No. 428 of K.P. Patta No. 306 of village-Kahikuchi under Mouza Dakhinrani on the ground that the said land was gifted to the defendant/ appellant No. 1 by her mother-in-law cannot be accepted. On perusal of the Ext. 3 the copy of Jamabandi of land covered by Dag No. 428 of K.P. Patta No. 316 of village- Kahikuchi under Dakhinrani Mouza it is seen that the name of the defendant/ appellant No. 1 was recorded on the basis of inheritance on the death of her husband Anup Chandra Kalita. Though the defendant / appellant No. 1 as the DW1 in her cross stated that the said land was gifted to her but she failed to produce any gift deed in support of the said stand and as such the finding of the trial court is upheld. 22. The finding in the rest of the issues are not agitated by Ms. Saikia. Further there is a cause of action for the suit and the suit is maintainable in the present form. The suit is not bad for non-joinder of the necessary parties inasmuch as all the legal heirs of Late Anup Chandra Kalita are parties to the suit and the suit is not barred by law of limitation. Saikia. Further there is a cause of action for the suit and the suit is maintainable in the present form. The suit is not bad for non-joinder of the necessary parties inasmuch as all the legal heirs of Late Anup Chandra Kalita are parties to the suit and the suit is not barred by law of limitation. There is no dispute that the Anup Chandra Kalita was not the owner of the properties mentioned in the schedules of the plaint and the parties to the suit are class-1 legal heirs under the Hindu Succession Act, 1955. 23. In view of the discussion hereinabove and issues more specifically the issue Nos. 5 and 6, the finding of the trial is upheld, however, with modification of the decree inasmuch as the plaintiffs/ respondents are entitled to get 1/4th stripe and the rest of the defendants are also entitled to get 1/4th of the share in the properties mentioned in the schedules of the plaint leaving aside any share over the Shivam Gas Agency, which the counsel of the plaintiffs/ respondents also accepted. The decree of the trial court is modified to the extent that the plaintiffs/ respondents are entitled to 1/4th share of stripe over the suit land and defendants/ appellants are also entitled to the extent of the 1/4th share of the suit property leaving aside the defendant / appellant No. 1 to enjoy the benefit arising of the Gas Agency subject to payment of 1/4th share of Rs. 60 Lakhs to the plaintiffs/ respondents and other co-owners. Accordingly, a preliminary decree be drawn to that effect that the plaintiffs/ respondents alongwith the defendants/ respondents are entitled to 1/4th share over the said schedule properties including schedule D however leaving aside the schedule C property covering the Gas Agency against which the plaintiffs/ respondents and the defendant/ appellant Nos. 2 and 3 are entitled to 1/4th share out of Rs. 60 Lakhs as described in the schedule D of the plaint. 24. This appeal is accordingly dismissed. Draw up the modified decree. Send back the case records. No cost.