ORDER : 1. This second appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 01.12.2016 passed by the learned District Judge, North Tripura, Dharmanagar in T.A. No. 06 of 2015 titled as Sri. Motilal Roy and Others vs. Sribash Roy and Others, the principal respondents and Smt. Swapna Rani Roy and Others, proforma respondents, whereby and whereunder, the learned District Judge dismissed the appeal holding the appeal was devoid of merit upholding the judgment and preliminary decree dated 02.05.2015 and 08.05.2015 respectively passed by the learned Civil Judge Sr. Division, Dharmanagar, North Tripura, in Title Suit (Partition) No. 32 of 2013 wherein, the learned trial Judge passed the preliminary decree on contest with costs. Motilal Roy being died during the pendency of the appeal has been substituted by his legal heirs as 1(a) to 1(d) and accordingly, the cause title of the memo of appeal has been corrected. 2. Factual matrix: 2.1 Pramila Roy, the predecessor-in-interest of the principal respondents filed Title Suit No. 32 (Partition) of 2013 for partition of the properties described in the schedule of the plaint. She claimed that her father Kamini Kumar Roy was the original owner and possessor of the suit land and said Kamini Kumar Roy was the predecessor-in-interest of the parties to the suit who died intestate leaving behind the plaintiff, the principal defendants and the proforma defendants. It is contended that on the death of the said Kamini Kumar Roy, the properties devolved upon his heirs and she claimed her share over the suit property as stated in the plaint. In support of the plaintiff’s claim, she submitted the certified copy of khatian No. 2016 of Mouja Dharmanagar Town in the name of the said Kamini Kumar Roy. She further contended that she asked the parties to the suit for amicable partition of the suit land but as the said claim was not conceded to, the cause of action arose on 23.08.2013, on which date the last request for amicable partition was made and she further contended that the cause of action was continued. 2.2 The defendant Nos. 1 to 8 submitted a joint written statement disputing that Kamini Kumar Roy was the real owner of the suit land. 2.2 The defendant Nos. 1 to 8 submitted a joint written statement disputing that Kamini Kumar Roy was the real owner of the suit land. In the written statement, it was further disputed that the suit land would be divided into eight equal shares amongst sons and daughters of Kamini Kumar Roy. In the written statement, the defendant tried to project a case that in 1964, the defendant No. 1 came to Dharmanagar from the erstwhile East Bengal, now Bangladesh and in 1966, he started a shoe shop in the name and style of Padasobha and with the saving earned from the said business, he brought his parents, brothers and one sister, defendant No. 1 from Bangladesh in 1971 and all of them including the defendant No. 1 started residing in a rented house in the town of Dharmanagar. It was stated that on 25.04.1974, the defendant No. 1 purchased the suit land but at that time, his parents were alive and the father being accepted and regarded as the guardian of the family, the property was purchased in the name of the father Kamini Kumar Roy but in fact the defendant No. 1 was the real owner of the property. It was also stated that the plaintiff got married in 1943 and never came to the State of Tripura while the pro-defendant No. 9 and pro-defendant No. 11, other two sisters of the defendant No. 1 and his brothers were married in East Bengal and never came to the suit land. He stated that though the property stood in the name of Kamini Kumar Roy, the defendant No. 1 viz. Motilal Roy was the real owner of the property and as such, the suit land was not liable to be partitioned but was the property of the defendant No. 1. 2.3 Based on the pleadings, issues were framed and thereafter, the evidences were let in to substantiate the respective pleadings. 3. Having heard the submissions of the learned counsel appearing for the parties and on consideration of the materials on record, the learned trial Court passed a preliminary decree for partition of the suit land vide judgment dated 02.05.2015 declaring the plaintiff Nos. 1 to 6 are jointly entitled to get 1/8th share out of the suit land i.e. 36.25 satak being the share of deceased original plaintiff, Pramila Roy. 4. The defendant-appellants had preferred first appeal. 1 to 6 are jointly entitled to get 1/8th share out of the suit land i.e. 36.25 satak being the share of deceased original plaintiff, Pramila Roy. 4. The defendant-appellants had preferred first appeal. The learned First Appellate Court had taken into consideration the following point for decision: “In this appeal the sole point is to be decided is that whether right of the respondents being daughter of the testator who died intestate leaving behind both male and female heirs prior to enforcement of amendment of Hindu Succession Act before 09.09.2005 to claim partition in respect of dwelling hut is established in view of the repeal provision of Section 23 of the Act though Section-8 of the Act has given right to them to such property.” 5. The learned First Appellate Court on consideration of the materials on record and having discussed the facts and law, dismissed the appeal confirming the judgment and the preliminary decree passed by the learned Civil Judge, Sr. Division. Dismissal of the first appeal has led the principal defendants to prefer the instant second appeal before this Court. At the time of admission of the appeal, following substantial questions of law were formulated by order dated 03.03.2017 for the purpose of hearing: “(i) Whether after death of the original appellants on 05.07.2014 and the petition for substitution being filed on 27.10.2014, the trial court had jurisdiction to proceed with the suit inasmuch as the suit was abated on expiry of 3 (three) months from the date of the original plaintiff and without setting aside the abatement? (ii) Whether by applying Section-6 of the Hindu Succession Act as amended by the Hindu Succession (Amendment Act, 39 of 2005), the finding that the appellate court has returned is sustainable in law?” 6. I have heard Mr. S.K. Deb, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel for the appellants and Mr. D. Sarkar, learned counsel appearing behalf of the plaintiff-respondents. Mr. S.K. Deb, learned senior counsel appearing for the appellants mainly raised the issue that it is apparent on the face of the record that the courts below could be held that even during the proceeding before the trial court the suit was abated. D. Sarkar, learned counsel appearing behalf of the plaintiff-respondents. Mr. S.K. Deb, learned senior counsel appearing for the appellants mainly raised the issue that it is apparent on the face of the record that the courts below could be held that even during the proceeding before the trial court the suit was abated. To justify his submissions learned senior counsel had drawn my attention to the application for substitution and the death certificate of Pramila Roy as well enclosed to the memo of appeal as Annexure-1. Showing the death certificate, learned senior counsel argued that Pramila Roy, the original plaintiff died on 05.07.2014, and since the application for substitution was filed on 27.10.2014, the suit was automatically abated. In such a situation, the preliminary decree drawn by the learned trial Court confirmed by the learned First Appellate Court was a nullity and the entire suit was liable to be dismissed as abated and the appeal had to be allowed on this ground alone. 7. That apart, Mr. Deb, learned senior counsel appearing for the appellants tried to persuade this Court in respect of the fact that from the evidence of Motilal Roy, P-1 and even from the cross-examination of DW-1, both the courts below ought to have arrived at a finding that the principal-defendant No. 1 was the actual owner of the suit land. 8. While deciding the issue as to whether the principal-defendant No. 1 had purchased the suit land out of his own source of income, both the courts below have held that the evidence in support of the plea as let in by the defendant-appellants are not supported by any documentary evidence. Further, there is no evidence in respect of the fact that the defendant No. 1 paid entire consideration money for purchasing the suit land. The Courts below held that in the absence of any such documents or materials the plea of the defendant-appellant No. 1 that he is the actual owner of the suit land does not appear to be convincing and has not been proved even by preponderance of probability. Further, both the Courts have held that mere fact that the defendant No. 1 has invested money for construction of homestead building on the suit land, that cannot debar the original plaintiff and other defendants from claiming their lawful share out of the landed property of the original owner as per rule of succession. Further, both the Courts have held that mere fact that the defendant No. 1 has invested money for construction of homestead building on the suit land, that cannot debar the original plaintiff and other defendants from claiming their lawful share out of the landed property of the original owner as per rule of succession. More so, the courts below have noticed the finally published record of right related to the suit property and the entry thereon, wherein, the deceased father of the plaintiffs has been created in the name of Kamini Kumar Roy where his name has been shown as “Raiyat.” Section-43(3) of the Tripura Land Revenue and Land Reforms Act, 1960 which speaks that every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct. It indicates that the presumption of correctness of an entry in the revenue record is a rebuttal presumption. 9. Though, the above findings arrived at by the courts below are pure questions of facts, however, for my satisfaction and as urged by Mr. Deb, learned senior counsel for the appellants, I have meticulously perused the evidence and the materials on record. It transpires that the principal defendant-appellant No. 1 has failed to introduce any persons who has witnessed the fact of sale transactions and payment of consideration by the principal defendant No. 1 out of his own source of income. The recitals in the sale-deed reveal that late Kamini Kumar Roy, the father of the plaintiff and the defendants being vendee has paid the sale consideration to his vendor. It is settled law that documentary evidence will prevail over the oral evidence and any oral evidence cannot run counter to the written contract. 10. Another fact what has struck my mind is that though the original owner of the land i.e. the father of the plaintiff, namely, Kamini Kumar Roy died about 36 years back from the date of institution of the suit, the record of right created in favour of him after the purchase of the suit land still remains in his name. The principal-defendant No. 1, namely, Matilal Roy, who claims to be the actual purchaser and owner of the land, never has claimed the absolute ownership of the property for the last long years. He has preferred to keep silent for the reason best known to him. 11. The principal-defendant No. 1, namely, Matilal Roy, who claims to be the actual purchaser and owner of the land, never has claimed the absolute ownership of the property for the last long years. He has preferred to keep silent for the reason best known to him. 11. After an overall assessment of the evidence and materials on record, in my opinion, the findings arrived at by the courts below cannot be said to be perverse in any manner whatsoever because the view as taken by the courts below appears to be a possible view and for this reason, the said findings do not call for any interference by this Court in second appeal. 12. Now, coming to the first substantial question of law it has come to fore that the issue of abatement has neither been raised before the trial court nor before the first appellate Court. In other words, the issue of abatement was not brought to the notice of both the courts below inviting examination and discussion on the issue of abatement and findings thereof. 13. However, Mr. Deb, learned senior counsel argued with vehemence that when a suit or an appeal is abated, then, nothing remains to be adjudicated and such suit or appeal is liable to be dismissed unless and until an application for setting aside the order of abatement is filed and allowed by this Court. Mr. Deb, learned senior counsel further contended that when an application for substitution is not filed within the prescribed period of limitation, the abatement is automatic and for this, no order from the Court is necessary. 14. Mr. Deb, learned senior counsel further argued that since it is a pure question of law, it can be raised at any stage, be it in the original suit or in appeal, there cannot be estoppel against law. To support this contention, Mr. Deb, learned senior counsel has placed reliance upon the decisions of the Apex Court in the case of Madan Naik and Others vs. Hansubala Devi and Others, (1983) 3 SCC 15 and Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 and held thus: “5. Order 22, Rule 11 of the CPC read with Order 22 Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Order 22, Rule 11 of the CPC read with Order 22 Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought, the appeal will abate. Sub-Rule (2) Rule 9 of Order 22 enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the Court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22 Rule 9, C.P.C. for setting aside the abatement.” “6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the Court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The Legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.” 15. Truly, I have no problem with the aforesaid propositions of law. However, it is to be examined whether these propositions are applicable to the facts of the present case, and for this purpose, I have scrutinized the lower court records. From the record, it has come to light that the respondents have filed an application under Article-120 of the Limitation Act, 1963 on 27.10.2014 along with a “Put up” application for tabling the case record on 27.10.2014 itself. The pleadings may be reproduced here-in-below, for convenience, in extenso: “A prayer under Article-120 of the Limitation Act, 1963: 1. That, the above named petitioners have filed a petition under Order-XXII, Rule-3 of CPC for substitution of their names as plaintiffs due to the death of their mother namely, Pramila Bala Roy (Plaintiff) on 05.07.2014. 2. That, said petition ought to have been filed as per provision under Art.120 of Limitation Act within 90 days. But 90 days was completed on 05.10.2014 which was the Durgapuja vacation period. Durgapuja vacation was started from 29.09.2014 & it was continued up to 26.10.2014 for which substitution prayer could not be submitted within the prescribed period of Limitation due to continuation of vacation of civil court. 3. That, such kind of delay in filing the petition is un-intentional which may kindly be condoned. In the above circumstances, it is prayed that the Ld. Court may be kind enough to condone the aforesaid delay for which your petitioner shall ever pray. Verification: I, Sribash Roy, the petitioner No. 1 do hereby declare that the statements made in this petition have been correctly typed/written and read out to me in Bengali which admitting to be true to my knowledge I sign this verification this 27th day of October, 2014 at Dharmanagar Court premises.” 16. Verification: I, Sribash Roy, the petitioner No. 1 do hereby declare that the statements made in this petition have been correctly typed/written and read out to me in Bengali which admitting to be true to my knowledge I sign this verification this 27th day of October, 2014 at Dharmanagar Court premises.” 16. Thereafter, the learned Civil Judge having heard the learned counsel appearing for the parties and on perusal of the averments made in the application has passed the following order dated 27.10.2014: “Order dated 27.10.2014: Record is put up today on filing of an application by the petitioner namely Sribash Roy, Smt. Maya Roy, Smt. Chaya Roy, Smt. Bina Roy, Smt. Sabita Roy and Smt. Kabita Royt under Order-22 Rule 3 of CPC for substitution of their names in place of the deceased plaintiff Smt. Pramila Roy, the predecessor in interest of the present petitioner.” Another petition has been filed under Article-120 of the Limitation Act, 1963 seeking for condonation of delay in filing the application under Order-22 Rule-3 of CPC since the court was closed up to 26th October 2014 due to long puja vacation whereas the petitioners were supposed to file the application on or before 05.10.2014. “It appears from the record that long puja vacation for the year 2014 was commenced from 1st October, 2014. Accordingly, there is no need to file such application by the petitioner as they have filed their application today this 27th October, 2014 i.e. on the reopening day of the court after long puja vacation. Moreover, Mr. M. L. Debnath, the learned lawyer for the defendants also raises no objection against the application of the petitioners. Accordingly, the application of the petitioners under Order-22 Rule-3 of the CPC is hereby allowed. The names of all the 6(six) petitioners shall be substituted as plaintiffs in the cause title page of the plaint in place of the deceased sole plaintiff Pramila Roy. Sheristadar is directed to amend the plaint accordingly.” 17. From the aforesaid order, it is apparent that the learned trial Court applied the law in its proper perspective. The plaintiff-respondents had not committed any error of law. They have filed the application under Section-120 of the Limitation Act, 1963 for condoning the delay in filing the petition for substitution under Order-XXII Rule-3 of the CPC. From the aforesaid order, it is apparent that the learned trial Court applied the law in its proper perspective. The plaintiff-respondents had not committed any error of law. They have filed the application under Section-120 of the Limitation Act, 1963 for condoning the delay in filing the petition for substitution under Order-XXII Rule-3 of the CPC. The Court had rightly considered the fact that the prescribed period of 90 days in filing the substitution petition under Order-XXII Rule-3 of the CPC expired on a day when the Court was closed due to long puja vacation which prevented the plaintiffs to file the petition for substitution within the prescribed period. The court had further noticed that the plaintiffs had filed the petition for substitution on the date when the Court reopened. The learned advocate appearing for the defendants also was conscious about the factual aspect and did not raise any objection and allowed the suit to continue. 18. In view of the order dated 27.10.2014, I find no merit in the submission of Mr. Deb, learned senior counsel that the suit is abated and consequent to that the judgment and preliminary decree passed by the courts below are void ab initio being non-est and accordingly, the said submission is repelled. Section-4 of the Limitation Act is relevant to be quoted herein: “Section 4 - Expiry of prescribed period when the Court is closed. Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens. Explanation: a Court shall be deemed to be closed on any day within meaning of this Section if during any part of its normally working hours it remains closed on that due date.” 19. The principle governing this Section provides expression the maxim lex non cogit ad impossibilia i.e. the law does not compel a man to do that which he cannot possibly perform and actus curiae neminem gravabit an act of the Court shall not prejudice any party. When the prescribed period expires on a day on which the Court is closed, the only effect of Section-4 is that the application may be filed on the day the Court reopens. 20. When the prescribed period expires on a day on which the Court is closed, the only effect of Section-4 is that the application may be filed on the day the Court reopens. 20. In Joyramma vs. Rajgopalan, AIR 1965 Madras 459, it is held that the effect of Section-4 is only to relieve a party of the hardship arising out of the fact that the last day of limitation is a holiday. In my opinion, Section-4 gives a special concession to the parties to the suit, i.e. notwithstanding that the period of limitation expires on a day when the Court is closed, suit, appeal or application may be made on the day on which the Court reopens. It has nothing to do with the period of limitation. 21. A plain reading of the order dated 27.10.2014 makes it clear like crystal that long puja vacation for the year 2014 was commenced from 1st October, 2014. The petitioner died on 05.04.2014 and the period of 90 days had been completed on 3rd October, 2014 when Court was closed due to long vacation. In view of the benefit as provided under Section-4 of the Limitation Act, the period of 90 days expires on the date when the Court was closed has automatically been extended up to its reopening date and if an application is filed on the reopening date, the said application shall not be treated as time barred and in the context of the present case, the suit cannot be said to be abated since, the application has been filed on 27th October, 2014 i.e. on the date of reopening of the Court after long puja vacation. Accordingly, the first substantial question of law as formulated and stated hereinabove, has been answered in favour of the plaintiff-respondents and against the defendant-appellants holding that the suit has not been abated. 22. Now, coming to the second substantial question of law regarding the applicability of Section-6 of the Hindu Succession Act as amended by the Hindu Succession (Amendment) Act, 39 of 2005, needless to say, this section is not at all applicable in deciding the suit being instituted within the jurisdiction of this Court because all Hindus residing here are guided by Dayabhaga School of Hindu law and not by Mitakshara School of Hindu law. Section 6 of amended provision of Hindu Succession Act relates to the succession of persons who are governed by the Mitakshara Law. 23. The learned First Appellate Court has rightly held that the decisions of the Apex Court in Prakash and Others vs. Fulabati and Others, AIR 2016 SC 769 and Narasima Murti vs. Susheelabai, AIR 1996 SC 1826 , are applicable only in respect of the coparcener’s property covered under the Mitakshara School of Hindu Law and not under the Dayabhaga School of Hindu Law. Further, in my opinion also, these judgments have no implication in deciding the present case. 24. Having viewed thus, in the result, the second appeal as preferred by the defendant-appellants being devoid of merit, stands dismissed. The judgment and the decree dated 02.05.2015 and 08.05.2015 respectively as affirmed and upheld by the First Appellate Court, do not call for any interference. Pending applications, if any, also stands disposed. Send down the LCRs.