UPENDRA NATH CHATTERJEE Vs. NILMONY CHATTERJEE

JUDGEMENT

(1.) One Adhar Nath Chatterjee of Howrah dedicated certain properties including the ancestral dwelling house to the family deity Sri Sri Iswar Gopal Jiu Thakur, established in the said house, by a deed of settlement dated 25-12-1922 and appointed himself as the first sebait, his wife as the next sebait and, after her death, his two sona Upendra and Nilmony as joint sebaits to the exclusion of the sons of a predeceased son. He died in 1923 and his wife died in 1925. The two sons thereafter succeeded as sebaits, and after some time disputes and litigations commenced between them and Nilmony left the ancestral house in June 1939. On 20-9-1950 Nilmony instituted the suit out of which this appeal arises against his elder brother Upendra for the framing of a scheme for the proper preformance of the seba and puja of the aforesaid deity and for the proper management of the properties dedicated to the deity, on the allegations that since he left the family dwelling house his brother had been carrying on the devaseba alone without asking for his co-operation and had been preventing him from participating therein and that in violation of the terms of the deed of settlement) he had been mismanaging and wasting the debutter properties and misappropriating the income thereof and had refused to render accounts. He accordingly asked for a decree for accounts also.

(2.) The defendant Upendra denied the plaintiff's allegations and charged him with neglect and abandonment of his duties as sebait after he had left the family dwelling house. He stated that he had performed the seba and puja of the deity with his own funds up to 1351 B. S., not having received any income from, the plaintiff who was in charge of the management of the estate and that since 1952 only he had taken over the charge of collection of the income and had been keeping proper accounts. He pleaded that the suit was not maintainable as framed, that he was not liable to render accounts and, on the other hand, was entitled to be reimbursed for the sums he had spent from his own funds for debaseba and that there was no reason or occasion for the framing of any scheme.

(3.) The learned Subordinate Judge who tried the suit held that the suit was maintainable as framed, being a suit instituted by a cosebait on behalf of the deity, and that the defendant waa liable to render accounts ana not entitled to be reimbursed for any expenses he might have Incurred for the deity out of his own funds. He accordingly decreed the suit in a preliminary form calling upon the defendant to render accounts to a Commissioner to be appointed by the Court from June 1939 upto the date of the decree. With regard to the prayer for the framing of a scheme he held that the Court was competent to frame a scheme and that it was essential that a scheme should be framed for the proper management of the endowment by overriding the directions of the founder of the endowment, if necessary. But he postponed the framing of the scheme pending the receipt of the report of the Commissioner whom he directed to ascertain the minimum amount necessary to be spent for the debaseba and to suggest a scheme in consultation with the parties.