Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 8 (TRI)

Shilpi Rani Shil v. Rekha Rani Shil

2022-01-06

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT 1. Heard Ms. R. Purakayastha, learned counsel appearing for the appellants as well as Mr. R.G. Chakraborty, learned counsel appearing for the respondents No. 1, 2 and 3. None appears for the respondents No. 4, 5, 6 and 7, the official-respondents. 2. This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment and decree respectively dated 23.11.2016 and 05.12.2016 delivered in Title Suit No. 294 of 2011 by the Judge, Family Court, Agartala, West Tripura. By the said judgment and decree, the suit that was instituted by the appellants has been dismissed. While dismissing the suit, it has been observed by the Judge, Family Court, Agartala, West Tripura that mother of the plaintiffs had eloped with Ramesh Chandra Shil, since deceased. At that time, she was legally married wife of one Banamali Shil. This fact has been recorded in two judgments, viz. the judgment dated 30.08.1982 [Exbt.A] delivered in T.S.(Divorce)12 of 1978 and in the judgment delivered in T.S.(Divorce)01 of 2001 by the Additional District Judge, West Tripura, Sonamura [Exbt.B]. At that time, Bakul Rani Shil [biological mother of the plaintiffs] claimed that Banamali Shil with whom she had marital tie was the father of her three children i.e. the plaintiffs. On 06.02.1978, she was driven out by Banamali Shil when she was carrying. Thereafter, the Judge, Family Court has further observed that there is no evidence on record that any appeal was preferred against those judgments and decrees. Ex parte decree of divorce [part of Exbt.B] was granted in favour of Banamali Shil. Thus, Bakul Rani Shil is a necessary party in the suit, but she has not been added as the party and as such the suit is bad for non-joinder of necessary party. Accordingly, the suit has been dismissed. It is to be noted that the suit being T.S. 294 of 2011 was instituted seeking the following reliefs: '1. Decree of declaration to the effect that the plaintiffs are the daughters and sons of Ramesh Chandra Shil since deceased. 2. Accordingly, the suit has been dismissed. It is to be noted that the suit being T.S. 294 of 2011 was instituted seeking the following reliefs: '1. Decree of declaration to the effect that the plaintiffs are the daughters and sons of Ramesh Chandra Shil since deceased. 2. Decree of declaration that the order of cancellation dated 29.09.2010 by cancelling the survival certificate against the death of Ramesh Chandra Shil is issued illegally.' Consequentially, a decree of mandatory injunction has been sought on the defendant No. 7 for issuing the survival certificate in favour of the plaintiffs by denoting that the plaintiffs are the legal heirs of Ramesh Chandra Shil. Further, a decree for recovery of benefits of provident fund, leave salary, gratuity, insurance, die-in-harness benefits etc. has been sought as relief in the suit. The injunction in this regard has been sought on the defendants No. 4 and 5 for releasing such benefits in favour of the plaintiffs including the benefit of compassionate appointment under die-in-harness scheme. 3. The respondents, the defendants in the suit, by filing a combined written statement has contended that the cancellation order as regards the survival certificate has been issued regularly as in the so called certificate, the defendants were not incorporated as the legal heirs/survivors of Ramesh Chandra Shil, since deceased, even though, they are the legal heirs of Ramesh Chandra Shil. They have denied that the plaintiffs can claim those reliefs as listed in the suit. Those defendants have raised the question of maintainability on the ground of non-joinder of necessary party. 4. Those defendants, the respondents in the appeal, had categorically stated that Bakul Rani Shil, the mother of the plaintiffs was the legally married wife of Banamali Shil. Therefore, the plaintiffs who were born out of the said wedlock are not entitled to be declared as the legal heirs of Ramesh Chandra Shil, since deceased. They sought for dismissal of the suit on the ground that the other defendants, the respondents No. 1, 2 and 3, are the legal heirs of Ramesh Chandra Shil. According to the official respondents, the suit is a gamble in litigation inasmuch as material facts have been deliberately suppressed and hence, the suit is destined to be dismissed. 5. They sought for dismissal of the suit on the ground that the other defendants, the respondents No. 1, 2 and 3, are the legal heirs of Ramesh Chandra Shil. According to the official respondents, the suit is a gamble in litigation inasmuch as material facts have been deliberately suppressed and hence, the suit is destined to be dismissed. 5. It is to be noted that the defendants No. 4 and 5 have filed the separate written statement and they have taken a stand that it is not within their knowledge whether the plaintiffs are born out of wedlock between Ramesh Chandra Shil and Bakul Rani Shil. Those respondents No. 4 and 5 have further disclosed that Banamali Shil had married one Hashi Rani Shil after driving Bakul Rani Shil from their home. That apart, they have made the following statement in their written statement: 'From the above admitted statement of Bakul Rani Shil it appears that she stayed with her husband Banamali Shil till 6th December, 1978, then how it is possible to marry Ramesh Chandra Shil on 19.01.1975. So, the contention as made in para-1 is not believable at all that the plaintiffs were born out of wedlock of Ramesh Chandra Shil and Bakul Rani Shil on the strength of their marriage as solemnized on 19.01.1975.' 6. On evaluation of the pleadings, the issues were framed by the Judge, Family Court, Agartala, West Tripura. The issues as framed are as follows: 'I) Are the petitioners son and daughter of Ramesh Chandra Shil, S/O. Lt. Joy Chandra Shil by Smt. Bakul Rani Shil? II) Are the petitioners entitled to the decree as prayed for? III) To what other relief or reliefs the parties are entitled?' Having appreciated the documentary evidence as produced by the plaintiffs [Exbts. 1 to 11] and the defendants [Exbts.A to D] in particular, the Judge, Family Court has returned the finding that the suit is not maintainable for non-joinder of the necessary party. 7. Ms. R. Purakayastha, learned counsel appearing for the appellants has strenuously argued before this Court that absence of Bakul Rani Shil, the mother of the plaintiffs from the array of parties, has steered, the Judge, Family Court, Agartala, West Tripura to hold that the suit is bad for non-joinder of necessary party. 7. Ms. R. Purakayastha, learned counsel appearing for the appellants has strenuously argued before this Court that absence of Bakul Rani Shil, the mother of the plaintiffs from the array of parties, has steered, the Judge, Family Court, Agartala, West Tripura to hold that the suit is bad for non-joinder of necessary party. According to her, the Judge, Family Court without dismissing the suit could have directed for addition of Bakul Rani Shil as the party in the suit but without doing so, the suit has been dismissed creating a serious embargo both for the plaintiffs and the defendants No. 1, 2 and 3. 8. Mr. R.G. Chakraborty, learned counsel appearing for the respondents No. 1, 2 and 3 has submitted that there is no infirmity in the judgment. What has transpired from the records is that whether the purported marriage of Bakul Rani Shil with Ramesh Chandra Shil, since deceased was a valid marriage or not is required to be determined and as such, in absence of Bakul Rani Shil, the suit cannot be adjudicated. 9. We have anxiously perused the records and found that the suit has been dismissed but the dispute between the parties remains unresolved. Keeping the end of substantial justice, this Court is of the view that there is no such infirmity to persuade intervention in the impugned judgment. We would specifically observe that dismissal of the suit shall not create any embargo from instituting a fresh suit after making Bakul Rani Shil as the party in the suit on the same cause. Subject to the above observation, this appeal stands dismissed.