BANSHIDHAR CHAKRAVARTY Vs. SRI NEMAI

JUDGEMENT

(1.) THIS appeal under clause 15 of the Letters Patent is directed against the judgment and decree dated June 24, 1974, passed by N. C. Mukherji, J, in Second Appeal No. 2459 of 1965. This appeal arises out of a suit for injunction which was dismissed concurrently by the two courts below but was decreed by our learned brother n. C. Mukherji J, by the judgment and decree under appeal. The facts which led to the suit may be stated shortly as follows : -

(2.) TWO brothers Chandi Charan and Baladeb dedicated the suit properties in favour of their ancestral deity sr. Sitala Debi Thakurani by a deed of Endowment dated October 3, 1929. By the endowment they appointed themselves to be the Shebaits during their lifetime and it was further provided that on their death there respective heirs in succession would be the Shebaits. The endowment in or imported the usual restriction that the shebaits for the time being will carry on the Devseva of the deity and will manage and use the suit property for the said purpose but would not be entitled to transfer the same in any manner or use it as their personal property. Chandi Charan being dead it is not in dispute, his interest in Shebaiti devolved upon the plaintiff Nemai and his brother's son defendant No. 1, Bansidhar. Baladev's interest had devolved on defendant Nos. 2 to 4 his sons. The existing shebaits were carrying on Devseva according to Palas agreed between them and there is no dispute that between the plaintiff and defendant No. 1 each of them was carrying on Seva Puja for 15 days in a month which fell in their allotment. By a registered Deed of Gift dated April 6, 1948, the plaintiff Nemai made a gift of his shebati in favour of his brothers son Bansidhar, the defendant No. 1. He did so as is evident from the recital in the deed on the ground that as he was doing the business of oil engine repairing work which led him to go to different places frequently he was unable to perform the Seva Puja of the deity Sree Sitala Debi Thakurani. The deed further recited that in future there is no hope or expectation that he shall be able to perform his duty as a Shebait and since the done, his nephew was performing the Seva Puja of the deity devoutly, attentively and whole-heartedly and according to Hindu rites, for the benefit of the deity the Shebaiti should be gifted in his favour.

(3.) ON November 8, 1962, totally suppressing the said gift in favour of defendant No. 1, the plaintiff Nemai instituted the suit out of which the present appeal arises upon an allegation that while the plaintiff was carrying on the Sera Puja jointly with the defendant no. 1 in the Pala allottted to them,defendant No. 1 since 17th Kartick, 1369 B. S threatened to oust him from the Office of Shebait and to obstruct him to perform the Seva Puja of the deity. On this simple allegation, he instituted a "suit for injunction restraining the defendant no. 1 from doing so.