BIBHUTI BHUSAN ROY Vs. SARALABALA HAZRA

JUDGEMENT

(1.) The plaintiff has alleged that one Nahesh Chandra Roy installed the family deity, Sri Iswar Laxmi Mata Thakurani. The entire property described in the Schedule A to the plant was dedicated by him to the deity by the registered Arpannama executed on 10th November, 1884. Kedar and Kshirode are sons of his first wife. He appointed them shebaits and stated that they would have four annas share each. He appointed his youngest brother's son Surendra Shebati and stated that the latter had four annas share. His further assertion was that his second wife, Amritamoyye, would have the remaining four annas share. Further provisions is that her share would be inherited by her son, should there be any. In 1898 he died leaving Kedar, Kshirode and also three sons by second wife, viz., Prafulla, Amulya and Bharat. Proforma defendants nos.5 and 6 are Bharat's sons and proforma defendants nos.2 to 4 are Amulya's sons. In 1918 Kshirode died leaving three sons, Chandra Bhusan, Bibhuti Bhusan (plaintiff) and Satya Bhusan (Proforma defendant no.10). The latter died on 21st November, 1956, without leaving any male child. At that time only his widow Adhibasini and five daughters, Sarala, Santi, Sudharani, Bularani and Renubala were alive. Proforma defendants nos.7 to 9 are Prafulla's sons. Then on the 3rd May, 1969, Adhibasini died leaving Sarala, Santilata, Sudharani and Bula and three sons of her predeceased daughter, Renubala. Regarding Chandra Bhusan the present dispute has cropped up. The terms of the Arpannama are that no 'Douhitra' and a member of separate Gotra would become shebait. The plaintiff has stated that he and the proforma defendant no.10 jointly have one-third share in the property. With a view to depriving their interest, Adhibasini along with her daughters Santilata, Sudha and Bula fraudulently executed a Deed of Settlement dated 29th January, 1969, in favour of Saralabala (defendant no.1). On the strength of that collusive and invalid document, the defendant no.1 has been trying to disturb their possession in the property. The suit is for a declaration that the Deed of Settlement in favour Saralabala is void and for a further declaration that the plaintiff and the proforma defendant no. 10 jointly have one-third share in the properties and for an injunction to restrain the defendant no.1 from interfering with their possession and seba puja of the deity.

(2.) The defendant no. 1 has filed a written statement denying the plaintiff's allegations. Her defence is that the alleged Arpannama of Mahesh Roy was never acted upon. He treated the suit property as his secular one. At any rate there was a partial dedication and it was not an absolute debuttar. She has been enjoying the usufructs of the property to the extent held by her father Chandra Bhusan in her own right as an heir and also by dint of the deed of settlement given by the other heirs. The suit is not maintainable and plaintiff and the alleged co-sharers are not in possession.

(3.) The learned Munsif stated that the alleged Arpannama (Ext.1/a) contained provisions repugnant to Hindu Law. There was only a partial dedication and there was no absolute debuttar. The females could not be excluded from the line of shebait. Hence the suit was decreed.