SHYAM SUNDAR PRAMANICK Vs. MONI MOHAN SADHUKHAN

JUDGEMENT

(1.) This is an appeal by special leave from the Appellate judgment of the Calcutta High Court affirming the decision of a learned single Judge of that Court. We are concerned in this case with only two points - one in relation to the interpretation of the will dated the 23rd August, 1930 executed by one Nandalal Paramanick and the other as to the interpretation and effect of a Compromise Decree dated the 13th July, 1939 passed by the Calcutta High Court in Suit No. 1539/1936.

(2.) Nandalal Paramanick was the owner of considerable properties. By his last will dated the 23rd August, 1930 he gave and bequeathed his properties to his family deity Sree Sree Iswar Sridhar Jieu. He also laid down a line of succession of Shebiats in the will. Probate of the will was granted by the High Court to Nandalal's widow Smt. Chamatkarini Dasi on the 9th July, 1936. Shyam Sundar Paramanick - the sole appellant in this appeal filed suit No. 1539 in the High Court on 26-8-1936 for self and as the next friend of the deity. The suit was an Administration suit. In this suit apart from Smt. Chamatkarini Dasi, Krishna Chandra Sadhukhan, father of respondent No. 1 was also impleaded as the defendant. Krishna Chandra Sadhukhan was the daughter's son of Nandalal Parmanick. Nandalal had no son but had 7 daughters - four of whom died without leaving a son. Krishna Chandra Sadhukhan was the son of one of the daughters. The appellant was the foster son of Shri Nandalal Paramanick. Krishna Chandra died during the pendency of suit No. 1539. Respondent No. 1, then a minor, was substituted in his place and was put under the guardianship of Smt. Chamatkarini Dasi. The said suit was disposed of by a compromise between the appellant and Chamatkarini Dasi apparently acting for self and also as guardian of respondent No. 1. Smt. Chamatkarini Dasi died on 12-10-1947 and it appears thereafter the appellant acted as a Shebiat of the properties of the deity. Respondent No. 1 along with plaintiff respondent No. 2 filed a suit on 12-4-1958 impleading the appellant as defendant No. 1 Sree Sree Iswar Sridhar Jieu, the deity, respondent No. 3 as defendant No. 2 for construction of the will and for a declaration that respondent No. 1 was entitled to be the Shebiat of the deity and trustee in respect of the debuttar estate in any event, to act as a joint Shebiat with the appellant. Certain other reliefs were also claimed in the suit which was contested by the appellant. The trial Judge decreed the suit on April 2, 1971 and declared that respondent No. 1 was entitled to be the Shebiat of the deity along with the appellant in accordance with the terms of the will. Certain other reliefs were also granted with we are not concerned in this appeal. The appellant's appeal has been dismissed by a Bench of the High Court.

(3.) Mr. S. T. Desai, learned counsel for the appellant submitted that on a correct interpretation of the will and especially clause 9 it ought to have been held that after the death of Smt. Chamatkarini Dasi the appellant was entitled to act as the sole Shebiat as Krishna Chandra Sadhukhan pre-deceased Chamatkarini. Counsel further submitted that even if it be not so the compromise decree in the earlier suit was binding on respondent No. 1 as it was entered into on his behalf also. Under the terms of the compromise the appellant alone was entitled to act as Shebiat during his lifetime. Mr. A. K. Sen, learned for respondent No. 1 submitted that the judgment of the High Court on both the points was correct and ought not to be interfered with.