PRATIMA KUNDU Vs. DIBENDU KUNDU

JUDGEMENT

(1.) THIS appeal has been preferred by the defendants Pratima Kundu and Smt. Kalpana Paul widow and daughter respectively of Late Bimal Chandra Kundu against the judgment and decree dated 20th July, 1991 passed by the learned Judge. 10th bench City Civil Court at Calcutta in Title Suit No. 705 of 1975.

(2.) THE suit was filed during the life time of Bimal Chandra Kundu by the plaintiff-deities represented by the plaintiff Ashutosh Kundu since deceased, the predecessor in title of the respondents No. 1 and 2, against shyamapada Kundu, the predecessor in interest of respondent Nos. 3 and 4 of the one hand and Bimal Chandra Kundu since deceased, the predecessor in title of the present appellants. The case of the plaintiff inter alia is that Prova Moyee Dasi, wife of Biswanath Kundu created a trust in which she appointed her two sons (i) Purna Chandra Kundu (being the father of Shyamapada and Bimal) and (ii) Bankubehari Kundu (being the father of Ashutosh Kundu), as excutors and trustees for the maintenance of the debutter and for the performance of shebapuja of the plaintiff Nos. 1 and 2 deities namely Sri Sri Jagadhat Mata and Narayan Jew who were installed at 20, Gulu Ostagar Lane. In that said will executed by Prova moyee Kundu on 10. 5. 1929 she created a line of succession of the shebaits and appointed the male heirs of herself as a she bait excluding the female heirs. That will, however, was not probated at, any point, of time but some of the terms of the said will were confirmed by act of parties in a suit being suit No. 1695 of 1934 in between Ashutosh Kundu and Susen Bala Dasi being the mother of Shyamapada and Bimal. An Arbitrator was appointed in that suit in the Original Side of this Hon'ble Court and on the basis of the report of the Arbitrator, a decree was passed. It is the case of plaintiff no. 3 Ashutosh Kundu that he was deprived of performing the sheba puja of the deities but he carried on the sheba puja of the deities till 1378/80 B. S. every alternative year. Despite performance of the sheba puja of the deities he did not receive anything from the income of the debutter estate and he defrayed the expenditure from his own personal properties from 1353 B. S. to 1380 B. S. to the extent of Rs. 50,000/- @ of Rs. 10 per day. He made prayer for the accounts of the estate and framing up a scheme for the performance of the sheba puja of the deities.

(3.) THE suit was contested by the defendants Shyamapada Kundu and bimal Chandra Kundu by filing a joint written statement wherein they denied all the material allegations of Ashutosh Kundu and contended inter alia that Ashutosh Kundu was mentally incapable for performing the sheba puja of the deities and spent Rs. 25,000/- on that account but also they had to give Rs. 25,000/- for treatment of Ashutosh Kundu during that period of his insanity. They claimed to be reimbursed on that account and asserted a counter claim to the effect in this context. According to these defendants the plaintiff No. 3 performed the sheba puja of the deities upto the year 1947 and thereafter he did not take part in the sheba puja of the deities owing to his insanity when he became incapable to discharge his duties.