BHUTH NATH MONDAL Vs. KALIPADA MONDAL

JUDGEMENT

(1.) This is an appeal by the defendants from the decision of the learned Subordinate Judge, Second Court, Midnapur remanding the suit for retrial on a particular issue after giving the plaintiff opportunity to amend the plaint.

(2.) The material facts of the case are not in dispute. Neinai Mondal of Bar Chimutia P. S. Tamluk was separate from his five brothers and had considerable properties. He married thrice to have a son and his third surviving wife was Jhanadamoyee. Ha brought up Rakhal, son of his brother Titu. Nemai Mondal made absolute dedication of his properties to two duties viz, Shree Shree Iswar Radeshyam Jew Thakur and Shree Shree Iswar Parameswar Jew Thakur installed by him under two deeds of endowment dated 2-8-1926 and 6-8-1926, appointing himself as the sole shebait. He prescribed the mode of devolution of shebaitship in tha following manner : After his death his son and thereafter his wife and if no son is born to him his wife Jnanadamoyee will be the next shebait. After the death of Jnanadamoyee the shabaiti right will devolve on Rakhal. After Rakhal' 8 death his male descendants only (excluding all female heirs and their descendants) will become shebaita one after another. In case Rakhal or any of his sons or grandsons dies without any mala issue, then the nearest descendant of the founder's brothers and if there be more than one such descendant then one Who to the senior most in age and religious in mind among the members of the same class will become the shebait of the deities. Nemai Mondal died in 1342 B. S. leaving his widow, two daughters Basan Bala (the defendant No. 17) and Mokshada (the defendant No. 18) and no son. Jnanadamoyee died in 1350 B. S. Thereafter Rakhal became shebait and he died without any son in Baisakh 1354 B. S. At the time of execution of the deeds of endowment and the death of the founder his three other nephews (brother's sons) who were living were Mohendra (father of the contesting defendants Nos. 1 to 6), Kalipada (the plaintiff) and his brother Haripada (the defendant No, 16). After Rakhal's death Mnhendra exercised the shebaiti right till his death which took place in Jaistha 1365 B. S. The two daughters of the founder and their sons purported to execute a deed of relinquishment called Tyagpatra' dated 29th Kartick 1361 B. S. (15th Nov., 1954) in respect of the shebaiti right in favour of Mahendra, father of the defendants Nos. 1 to 6.

(3.) The plaintiff brought the suit for a declaration of his shebaiti right and other incidental relief alleging that the aforesaid deed of relinquishment is fraudulent, collusive and void and claiming that he is the sole shebait of the deities according to the terms of the deeds of endowment.