NARAYAN MISRA Vs. SURENDRANATH DAS

JUDGEMENT

(1.) THIS is an appeal against an order of the Subordinate Judge, Puri allowing an application under Order 39, Rule 1. Civil P. C. The facts which are somewhat complicated are these: One Bhagaban Das had two sons Dinabandhu and Daitari daitari had two sons, Narayan and Gopabandhu. Dina-bandhu's only son having died, he adopted Daitari's son Narayan. Narayan being issueless he adopted his daughter's son Sadananda Das (defdt. No. 3 ). Gopabandhu had two daughters. Defendant No. 1 Ratnakar Pati is the elder son-in-law and defendant No. 2 narayan Misra is the younger son-in-law.

(2.) SHORTLY before his death. Gopabandhu executed a Will bequeathing the entire joint family properties belonging to him and Sadananda Das in favour of the family deity (defendant No. 4) and created a trust under the terms of which the members of the family were to be maintained out of the usufruct of the trust property. It also provided for the constitution of a Committee for managing the trust. The testator himself was to be the managing trustee and after his death defendant No. 3 was to be his successor in that office. On the death of Gopabandhu, defendant no. 3 became the sole surviving coparcener of the family and was in possession of the trust properties on behalf of the deity.

(3.) DEFENDANT No. 2 Narayan Misra who had no manner of right either over these properties or in respect of the management thereof filed Title Suit No. 29 of 1945 in the Court of the Subordinate Judge, Puri claiming himself to be one of the trustees of the Deity and prayed for a declaration that defendant No. 3 had no right to interfere with the management of the properties. This suit was compromised and under the compromise defendant No, 3 accepted his position as marfatdar of the deity only in respect of eight annas interest of the properties. Despite the compromise, however, defendant No. 3 continued to remain in possession of the entire properties. Defendant No. 2 then initiated a proceeding under Section 145, Criminal P. C. against defendant No. 3 and this proceeding terminated in favour of the latter. Thereupon, defendant No. 2 filed T. S. No. 369 of 1956 in the Court of the Munsif, Puri against defendant No. 3 for his removal from the marfatdarship of the Deity and in the alternative for framing of a scheme of management in respect of the deity's properties. The suit was contested by defendant No. 3 up to the High Court (Second Appeal Nos. 219 and 262 of 1962 ). The matter was, however, compromised in the High Court, and the compromise provided that a portion of the disputed properties would be allotted to defendant no. 4 and the balance would be divided equally between defendants 2 and 3. The decree passed being in the nature of a preliminary decree in T. S. No. 369 of 1956, defendant No. 2 applied for making the decree final and the final decree proceedings are pending at present in the Court of the Munsif. Puri.